Legal Positivism: Early Foundations

Abstract:     
Legal positivism is a vital and controversial approach to central questions of philosophical jurisprudence. Not only are its core theses contested, but claims about what its core theses are and what it stands for have been hotly disputed in recent years. This essay offers some perspective on these debates by looking to the history of legal theory from which contemporary positivist jurisprudence has emerged. It does not take any contemporary formulation of the doctrine as canonical, since most such formulations are contested. Rather than seeking out full-fledged, card-carrying positivist theories in the history of jurisprudence to interrogate, this essay explores the articulation and development of a set of themes which arguably have attracted at least some major positivist legal theorists. The stage is set for understanding Hart’s neo-positivist theory of law, and that of more recent philosophers working in its shadow, by locating their work in the context of positivist themes and arguments that have developed over the long history of philosophical reflection about the nature of law. This essay was prepared for the forthcoming Routledge Companion to Philosophy of Law, edited by Andrei Marmor.

Number of Pages in PDF File: 34

Keywords: Positivism, command, sanction, Aquinas, Austin, Bentham, Hart, Holmes, Marsilius, Salmond

working papers series