“Many contemporary legal positivists … present their legal positivism as morally uncommitted, claiming that their account of legal judgment need not rely on any specific account of moral judgment.’ (Perreau-Saussine ‘Bentham and the Boot-Strappers of Jurisprudence’ p.346).  Before her untimely death, Amanda Perreau-Saussine set herself the task of disproving this claim and demonstrating that all consistent legal positivists are committed to metaphysical positivism, to the “rejection of any philosophical notion of moral authority.” (‘Bentham and the Boot-Strappers of Jurisprudence’, p.383).  If her claim is correct, then all consistent legal positivism is tainted by practical atheism, by the denial that God has any right to tell us how to live our lives.  If Perreau-Saussine is right, then Sagovsky is correct to say that “Legal positivism … to all intents and purposes evacuates the law of moral content” (Christian Tradition and the Practice of Justice, p.177).

Legal Positivism is an approach to law which focuses on the question: is this a valid law or not?, and does so by concentrating on whether the law has come from the right source. The roots of legal positivism go back to the philosophers Hobbes, Bentham, and Austin. The pre-eminent thinker in twentieth century legal positivism in the English-speaking world was H.L.A. Hart.

 

Hobbes

Thomas Hobbes was a seventeenth century philosopher whose masterwork, Leviathan, was written during the English Civil War. Hobbes thought that law depended on sovereignty, on the clear identification of the person or body who was the ultimate legal authority in a particular territory. The main cause of the English Civil War, in his opinion, was a fight about whether the King or Parliament was sovereign.

For Hobbes, in the end, law boils down to power. Like his contemporary, John Locke, Hobbes imagined how human beings would interact in a state of nature. Where Locke was quite positive about human interactions in a world without any centralised political authority, Hobbes memorably claimed that it would be solitary, poor, nasty, brutish and short. Afraid of uncontrolled violence, individuals would rationally decide to appoint a sovereign ruler. That sovereign ruler could be an individual, a king, or it could be a body, a Parliament or Congress. Through this social contract, the sovereign would be given authority by the people. Henceforth, the law would simply be whatever the sovereign decided. In order to identify something as law, you simply have to identify whether it is a command made by the sovereign or made by someone to whom the sovereign has delegated part of his power.

Hobbes’ scholars argue about whether or not Hobbes’ theory has any room for any meaningful constraints on the commands of the sovereign. What is telling, however, is that Hobbes calls the sovereign or the state apparatus of which the sovereign is the head, Leviathan, and refers to it as a “mortal god”.

Law is essentially the top-down exercise of power. The content of the law is wholly or largely irrelevant. This leads to a sources theory of law, whereby in order to identify whether something is or is not a valid law, you have to establish its pedigree, can it be traced back to a de iure exercise of power.

The relationship of sheer power between subjects and their sovereign is a reflection in his philosophy of the relationships between humans and God. He wrote: “The right of Nature, whereby God reigneth over men, and punisheth those that break his Lawes, is to be derived, not from his creating them, as if he required obedience as of gratitude for his benefits; but from his Irresistible Power.”

In fact, though Hobbes quotes from the Bible, and names Leviathan after a biblical sea-monster, he is widely regarded as having been an atheist. For Hobbes, unlike his contemporary Locke, one of the rights individuals cede to their sovereign is the right to tell them how to worship God. Hobbes’ Christianity is therefore, on his own logic, simply him being obedient to the commands of his sovereign rather than a genuine faith.

Legal positivism claims that it is simply interested in the question of how to identify valid laws. Whether those laws are morally good or bad is an entirely separate question. However, Amanda Perreau-Saussine argues that Hobbes, and all other consistent legal positivists are committed to metaphysical positivism, to the “rejection of any philosophical notion of moral authority.” Laws bind simply because they are made by the sovereign not because they reflect or promote any positive good.

 

Bentham

William Blackstone (1723-80) whose Commentaries on the Laws of England formed the definitive guide to the common law of England, taught his students that “Christianity is part of the laws of England” and that although God had made human beings with freewill, there were “certain immutable laws of human nature, whereby freewill is in some degree regulated and restrained” and that God gave “the faculty of reason to discover the purport of those laws”.  Blackstone was maintaining a tradition of natural law which taught that God had given laws to human beings in nature and in the Bible, and that it was the task of human judges and legislators to reflect on those laws and to decide cases and make laws in the light of those God-given laws.

One of Blackstone’s students, Jeremy Bentham (1748-1832), rejected Blackstone’s position.  Bentham thought that talk of natural law and natural rights was a waste of breath because there was no way of rationally establishing what the content of natural law and natural rights might be. Since Bentham believed that human rationality alone could decide what was right and wrong, and what should be legal and illegal, and appeals to natural law and to natural rights were useless, an alternative criterion for rational decision-making about legal rules was required.  He developed the philosophy of utilitarianism,[1] whose fundamental axiom is that “it is the greatest happiness of the greatest number that is the measure of right and wrong.”  The aim of good law, therefore, is to maximise happiness and this should be the criterion which guides legislators and judges in their decision-making.

Utilitarianism’s theory of ethics is consequentialist. Right and wrong are, for the utilitarian, determined by considering the likely consequences of one’s actions.  So, the question of deciding whether or not I should keep my promise is to be resolved by thinking solely about the balance of harm and benefits which will result from doing so, rather than seeing the promise itself as the determining factor. 

Therefore, in order to get people to obey the law, you need sanctions. Bentham saw sanctions as central to an account of law.  If individuals act according to the principles of utilitarianism or even if they are simply selfish, they may have an incentive to break the rules on occasion.  In order to overcome this incentive, by the realistic threat of unfortunate consequences which means that it is always preferable for the individual to obey the law.  The imposition of sanctions achieves a convergence between general welfare and individual self-interest.

Bentham was a law reformer. With considerable justification, he thought that much of the legislation in England was not good and did not promote the greatest happiness of the greatest number. He also thought the common law was confusing and that people would be much better off with clearly codified laws. He sought to rationalise and reform criminal law, prisons, the poor law, the judiciary, and contract law.

Bentham was, like Hobbes, an atheist. After his death, he was mummified and his mummified body was put on display at University College London. Bentham saw law as it is as based purely on power but argued law as it ought to be should be governed by a consequentialist logic. Because Bentham’s utilitarianism had no room for rights or any other a priori restrictions on the content of law, Amanda Perreau-Saussine saw him as another legal positivist who denied moral authority. At its most extreme, Bentham’s legal positivism provides no defence to the Jew or Roma whose extermination is viewed by Nazi rulers to promote the greatest happiness of the greatest number.

 

Austin

Jeremy Bentham was mentor to John Austin, who was Professor of Jurisprudence at University College London from 1827 to 1834. John Austin wrote, law is ‘set by political superiors to political inferiors.’ Law is a ‘rule laid down for the guidance of an intelligent being by an intelligent being having power over him.’ ‘Every law is a command.’^[2]

John Austin argued that law is the commands of a sovereign, and that a sovereign has authority because and insofar as her commands are habitually obeyed by most of society.  The law could simply be identified by a factual enquiry into the identity of the sovereign and then a factual enquiry into the rules made by the sovereign.

Austin was absolutely rigorous in drawing a very strict is and ought distinction.

“The existence of a law is one thing: its merits or demerits are another thing.  Whether a law be, is one inquiry: whether it ought to be, or whether it agree with a given or assumed test, is another and a distinct inquiry.”[3]

Austin thought there should be two different subjects, one exploring what the law is and the other exploring what the law ought to be.

Law as it is: Positive Law	Science of Positive Law: Jurisprudence
Law as it ought to be: Ideal Law	Science of Legislation

Unlike Hobbes and Bentham, John Austin was a Christian. Austin squared his utilitarianism and his Christianity as follows: Divine law, for John Austin, consists of two parts: revealed or express divine law and unrevealed or tacit divine law.[4]  The divine laws which are revealed are express commands “signified to men through the medium of human language; and uttered by God directly, or by servants whom he sends to announce them”.[5]  These commands are mostly in the form of general rules.[6]  The Ten Commandments would be a clear example of these divine commands.

In Austin’s view, the tacit divine law, which is of direct application when God has given no express commands, is the utility principle.  Austin reasons that because “the goodness of God is boundless and impartial, he designs the greatest happiness of all his sentient creatures”, therefore, “From the probable effects of our actions on the greatest happiness of all, or from the tendencies of human actions to increase or diminish that aggregate, we may infer the laws which he has given, but has not expressed or revealed.”[7] 

Summing this all up: if you are deciding what to do, the first thing to do is to ask: has God issued an express command such as do not steal? If so, then it is clear that you should not steal. Stealing would not be utility-enhancing. If God has not issued an express command, then you are free to use your own reasoning to assess the consequences of your actions, but not on an ad hoc basis but on the basis of what the likely consequences would be if acts of the class were generally done, or generally forborne or omitted, what would be the probable effect on the general happiness or good?”[8]

Because Austin draws a stark distinction between law as it is and law as it ought to be, Austin asserts that “to say that a human law which conflicts with the law of God, is therefore not binding, or not valid, is to talk stark nonsense.”[9]  In this one sentence Austin dismisses the idea that a conflict between a positive law and divine or natural law could result in the positive law losing its status as a valid law.  He also stresses that positive laws in conflict with divine or natural law remain “binding”, by which he means not that they continue to generate moral obligations of obedience but that subjects who defy them will be subjected to punishment.

There are two big questions about Austin’s approach to legal positivism. First, is it coherent?, does the mix of general rules given by God and the utility principle translate when applied to laws made by human authorities?, Second, does it explain why laws create an obligation of obedience? The worry is that the commands issued by Austin’s sovereign are indistinguishable from the demands made by a man pointing a gun at you and ordering to do something.

 

Hart

As H.L.A. Hart, the pre-eminent figure in twentieth century British legal positivism defined it: legal positivism is “the simple contention that it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have often done so” (The Concept of Law, 2^nd edn., pp.185-6). It also means that identifying something as a law has no or little relevance to the question of whether there is a moral obligation to obey that law. 

As we have seen, before Hart, legal positivism, with its origins in Hobbes’ Leviathan and its classical expression by John Austin, defined law in terms of the commands of the sovereign. The only person whose purposes were relevant in order to identify something as law was the sovereign. The accounts of H.L.A. Hart and other contemporary positivists did not depart from that fundamental vision. However, Hart developed the idea in two ways. First, Hart accepted that all human beings want to survive and therefore that there is a minimum necessary content to law, or a minimal natural law. Second, Hart wanted to draw a distinction between orders issued by a gunman and the commands given by a sovereign. Commands given by a sovereign are laws, according to Hart, if they are regarded by the officials in a legal system as authoritative. Lon L. Fuller was not convinced that Hart’s version of legal positivism captured the nature of law. He was impressed by the Soviet scholar Evgeny Pashukanis’s dismissal of legal positivism on the basis that “if a neat chain of command were the most significant quality of law then we should regard the military as the archetypal expression of juristic order.”[10]

Like Bentham, Hart coupled his legal positivism with a commitment to utilitarianism and to law reform, arguing in favour of many of the liberalising laws in England in the 1960s. Legal positivism may not logically entail a rejection of rights and of natural law but, as these thinkers show, they are often to be found together in the theory of the major thinkers whose ideas provide the roots of legal positivism.

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[1] For a full discussion of utilitarianism, see Session 11 – Legal Philosophy (2019).

[2] J. Austin, The Province of Jurisprudence Determined, ed. Wilfrid E. Rumble, 5^th ed. (Cambridge: Cambridge University Press, 1995), pp. 18, 21.

[3] Ibid., p. 278.

[4] Ibid., p. xi, 32.

[5] Ibid., p. 32.

[6] Ibid., p. 39.

[7] Ibid., p. 36.

[8] Ibid., pp. 37, 39, 47-48.

[9] Austin, The Province of Jurisprudence Determined, (London 1832), p. 279.  Italics are used liberally by Austin and are original in all the quotations cited.

[10] Fuller, The Morality of Law, 113, quoting Pashukanis, The General Theory of Law and Marxism (1927), tr. Babb in Soviet Legal Philosophy, 20^th Century Legal Philosophy Series, 5 (1951), 111-225 at 154. See also  Fuller, ‘Pashukanis and Vyshinsky: A Study in the Development of Marxian Legal Theory’ (1949) 47 Michigan Law Review 1157-66 at 1160.