“positivism,” the two theories are substantially different, as it will become clear in the course of this essay. Legal positivism has also been confused with the ancient idea of positive law. Leslie Green (2003), for example, claims that the term “legal positivism” was introduced in medieval legal thought, citingFinnis(1996) as the source of that claim—even though Finnis discusses there not legal positivism but positive law. Actually, it is only in the twentieth century that
some influential legal theorists began to call themselves “positivists” and their doctrines “legal positivism,” notably Hans Kelsen (1945), H. L. A. Hart (1961), and Joseph Raz (1986). Nor is it the case that twentieth-century legal positivism directly stems from traditional theories of positive law: many leading theorists of positive law, such asThomas Aquinas, are not progenitors of legal positivism, while some leading progenitors of what became known as legal positivism almost never refer to positive law, such as Jeremy Bentham (1782). The leading legal positivists of our day, such as Hart and Raz, almost never speak of positive law while a major theorist of positive law today, John Finnis, is no legal positivist. Still, we distinguish in order to unite, and there is an important relation between traditional theories of positive law and modern versions of legal positivism. The theory of positive law cannot be understood except by contrast with two other kinds of law. In contrast to customary law, positive law is said to be “posited” or “imposed.” Customary law is thought to emerge spontaneously from below while positive law is thought to be deliberately imposed from above. In contrast to natural law, however, positive law is defined variously as morally indifferent, morally arbitrary, or morally adventitious. Thus, in his discussion of the Mosaic Law, Thomas Aquinas says that the norm “you shall not kill” is of the natural law because it has intrinsic and universal moral force while the norm “you shall not wear garments made of wool and linen woven together” is of the positive law because it lacks intrinsic and universal moral force. So in one sense, to claim that law is positive is to make a descriptive claim about its source: positive law is imposed and enacted by sovereign legislation. Yet in another sense, to claim that law is positive is to make a normative claim about its content: positive law lacks intrinsic moral force. The problem with much of the traditional discourse of positive law is that Aquinas,Hobbes, and Austin, for examples, never explicitly distinguish these two senses of law’s positivity and their accounts oscillate unstably between them (Murphy 2005). It is often difficult to distinguish properties that often co-exist: natural-law norms whose content has intrinsic and universal moral force do not need to be deliberately imposed in order to have whatever moral force they are thought to possess; and the reason we deliberately
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