Towards Classical Legal Positivism
York University - Osgoode Hall Law School
July 15, 2011
Osgoode CLPE Research Paper No. 20/2011
This essay rethinks the history and understanding of the debate between legal positivism and natural law. It does so by distinguishing between classical legal positivism, represented by the work of Thomas Hobbes and Jeremy Bentham, and contemporary legal positivism, the one familiar from self-styled positivists works in the last fifty years. I argue that the difference between the two is that classical legal positivism sought to provide a theory of law within a broader account of nature (including human nature), whereas what is characteristic of contemporary legal positivism is its rejection of this approach. This distinction is valuable for understanding the historical path of jurisprudence as the approach of the classical legal positivists is similar to the one found in the work of many natural lawyers, both classical and contemporary. What separates classical legal positivists from the natural lawyers is thus not - contrary to claims by contemporary legal positivists - that the classical legal positivist were the first to argue that "legal validity" does not depend on the moral soundness of a legal norm. Rather, they disagreed on the correct account of nature and human nature. Nonetheless, both classical legal positivism and natural law are similar in seeking to place a theory of law within a broader theoretical perspective. The difference is significant both for understanding the views of Bentham or Hobbes (neither of which was particularly interested in identifying tests of "validity") but also for suggesting that the future of legal theory lies in returning to the views of the classical legal positivists and abandoning the approach that has dominated jurisprudence, and legal positivism in particular, since Hart's Concept of Law.
Number of Pages in PDF File: 31
Keywords: legal positivism, natural law, Hobbes, Bentham, Hart, internal point of view
Date posted: August 30, 2011 ; Last revised: September 30, 2011