The Contemporary Relevance of Legal Positivism
Brian Z. Tamanaha
Washington University in Saint Louis - School of Law
St. John's Legal Studies Research Paper No. 07-0065
Australian Journal of Legal Philosophy, Vol. 32, 2007
A number of legal philosophers claim that legal positivism is the leading theory of law today. Nonetheless, there are many complaints that legal positivism is excessively abstract and irrelevant to real life concerns. The traditional inspiration underlying legal positivism was the timeless reminder that laws and legal systems can be bad or immoral. This article will argue that this core idea, known as the separation thesis, is now obscured by legal positivist theory (to its disservice), and must be dusted off and revived.
The article begins with a brief history of the often acrimonious engagement between legal positivism and natural law. It argues that much of the disagreement has been a pseudo debate, and that legal positivists and natural lawyers have much in common. Specifically, both approaches are concerned about immoral laws and legal systems. The article shows, moreover, that natural lawyers espouse a version of the separation thesis in their own criticisms of legal systems.
The article then describes the two main positivist schools of thought: inclusive legal positivism and exclusive legal positivism. Both schools are built on conceptual arguments about the nature of law. Neither approach preserves the traditional thrust of the separation thesis. Inclusive positivists have transformed the thesis into a pure abstraction (operative only in the imagination), while exclusive positivists adopt a strict version of the thesis that has limited significance when applied to actual legal systems.
In contrast to these approaches, this article articulates a common sense version of the separation thesis that is relevant and applicable to all legal systems of any kind. The separation thesis proposed here even applies to fused systems of law and morality - to religious legal systems, to human rights law, and to legal provisions that incorporate moral standards like justice, fairness, and reasonableness. Dworkin and other critics have argued that these common types of legal provisions refute the legal positivist insistence that law is separate from morality because moral standards are utilized to determine what the law is. This article demonstrates, however, that even under such circumstances the separation thesis applies in the sense that we must nonetheless scrutinize whether the law or legal system at issue is good or right. Applying the separation thesis in this fashion is especially important today because legal systems increasingly incorporate or refer to moral or religious standards.
The article proposes a broad way of understanding legal positivism that falls outside of the two main schools of analytical jurisprudence. It argues that they should be seen as narrowly specialized sub-approaches to legal positivism which do not monopolize or exhaust this perspective on law. The understanding proposed here is consistent with the views of many who are concerned with law, and it should also be congenial to natural lawyers who wish to criticize bad or immoral legal systems.
Number of Pages in PDF File: 53Accepted Paper Series
Date posted: January 30, 2007
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