Legal Positivism and Natural Law Legal T.docx - Legal...

Legal Positivism and Natural Law Legal Theories
Johnny L. Washington
JURI-610 / D01
July 27, 2017
Professor Rena Lindevaldsen
1

Legal Positivism
Traditional legal positivism is a theory of law that embraces the fundamental positivity of
modern law being the fact that under conditions of modern law, the law is logically and
justifiably based on the conscious and consistent behaviors of humans, and provides an
underlying distinction between law and morals
1
. Positivist theories of law express that law can
be defined, explained, accounted for, and analyzed absent moral justification, moral, principle, or
moral value, while acknowledging the analogous and corresponding nature of legal and moral
topics
2
. In the positivist theories of law, the separation of law and morals is predicated upon the
notion that the content and intent of law is derived from social and cultural norms, usages, and
practices.
The legal positivist position of H.L.A. Hart holds fast to the notion that law, conceptually
speaking, should be distinct from moral impositions in terms of describing what law legitimately
is from how and what law should be, and dissuades from an empirical analysis of law, which
according to Hart, is incapable of differentiating the pure power exuded by institutions from the
rules and norms accepted and embraced by the community
3
. Hart also states that the preeminent
criteria for a legal system’s value and validity does not reside in presupposed legal norms, but in
existing socially accepted rules that are consistently put into practice by the community citing
primary rules as rules that govern the behavior and decisions of citizens, and secondary rules that
govern the legal rule system
4
.
The Pure Theory of Law
1 Tuori, K. (2016). Critical Legal Positivism. New York: Routhledge.
2 George, R. P. (1992). Natural Law Theory: Contemporary Essays, pg. 107, Oxford: Oxford University
Press.
3 Bix, B. (2015). Jurisprudence: Theory and Context, Seventh Edition, pg. 37-38, Durham: Carolina
Academic Press.
4 Bix, B. (2015). Jurisprudence: Theory and Context, Seventh Edition, pg. 39, Durham: Carolina Academic
Press.
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The Pure Theory of Law, as expressed by Hans Kelsen, is a positivist theory of law
holding fast to the positivist view that positive law is forcible orders, instructions, and directives
declared and enforced by administrative, judicial, and legislative agencies, or by customs
established by the deeds, actions, and behaviors of the occupants and inhabitants of a
community 5 . The descriptive term “pure” is attributed to Kelsen’s theory because the theory
endeavors to describe law in its purest essence, completely distinct and separate from things that
are not strictly and definitively law 6 . This is conducted, within the confines of the Pure Theory
of Law, by disassociating law from morality, jurisprudence from natural science, law from
nature, and jurisprudence from ethics
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. In contrast to Hart’s positivist theory of law, Kelsen’s
pure theory of law rests its focus on the explanation of the normative nature of law vice Hart’s
focus on the distinctions between primary and secondary rules and the differences between rules
and habits.