The British Tradition of Legal Positivism

Forthcoming in A Companion to Legal Positivism, Torben Spaak and Patricia Mindus, eds. (Cambridge: Cambridge University Press).

UNC Legal Studies Research Paper

23 Pages Posted: 12 Jun 2019

See all articles by Gerald J. Postema

Gerald J. Postema

University of North Carolina - Philosophy

Date Written: May 27, 2019

Abstract

This essay traces a thematic thread through broadly Anglophone legal philosophy since the seventeenth century. Ownership of the title “positivism” is contested in contemporary Anglophone jurisprudence. If we to take the core theses embraced by contemporary legal positivists to identify the key figures in their tradition the story would be very brief, starting, perhaps, with Hart. Hence, rather than tracing a line of development of a coherent jurisprudential tradition, this essay sketches in broad outlines the transformation of Anglophone legal philosophy since Hobbes. However, it begins with a brief discussion of the headwaters of Anglophone positivist tradition in the “thetic” tradition of legal theory in late medieval jurisprudence and in the practice and theory of English common law and ends with a discussion of Salmond and other twentieth-century jurists who paved the way for Hart’s contemporary version of legal positivism.

Keywords: Jurisprudence, Hobbes, Hale, Austin, Bentham, Common Law, Aquinas, Hart

Suggested Citation

Postema, Gerald J., The British Tradition of Legal Positivism (May 27, 2019). Forthcoming in A Companion to Legal Positivism, Torben Spaak and Patricia Mindus, eds. (Cambridge: Cambridge University Press)., UNC Legal Studies Research Paper, Available at SSRN: https://ssrn.com/abstract=3394986

Gerald J. Postema (Contact Author)

University of North Carolina - Philosophy ( email )

Caldwell Hall
CB #3125
Chapel Hill, NC 27599-3125
United States

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