Two Central Theses
Broad and Narrow Positivism
Soft and Hard Positivism
What is Positive Law?
– The Command Theory
– The Social Convention Theory
Two Central Theses
Issues of legal validity must be strictly
separated from questions of morality.
What the law ought to be has nothing to
do with what the law actually is.
There are irreducible facts about
political society that can only be
expressed in the vocabulary of the law.
The study of the law is autonomous.
Broad and narrow positivism
Broad positivism (= moral/legal
conventionalism). There is only the positive
law: there are no objective, universal facts
about morality, about what the law ought to
be like. [Hans Kelsen]
Narrow (legal) positivism: in addition to the
positive law, objective moral facts may exist.
Legal validity is independent of moral
Two kinds of (narrow) legal
Utilitarian positivism: there are no natural
human rights, nothing like a natural law. The
only moral standard is one of the desirability
of the consequences of the law. [Bentham]
Non-utilitarian narrow positivism. There is
something like natural law (universal human
rights, universal moral principles).
A positive law is binding even if it is
No principle of morality is legally binding until
it has been enacted into positive law.
That a statute is legally binding does not
settle the moral question of whether we ought
(morally speaking) to obey or disobey the
Soft vs. Hard Positivism
Soft positivism: there is no necessary
connection between the content of law
and the truths of morality.
Hard positivism: there is, of necessity,
no connection between the content of
law and the truths of morality.
Defended by H. L. A. Hart.
Society may, if it chooses, incorporate
the principles of morality into the law.
E.g., prohibitions of “cruel” punishment,
requiring “just” compensation.
However, this is merely an option: no
moral principle is legally binding unless
it is incorporated into the law.
Defended by Joseph Raz (Oxford).
It is impossible for the law to incorporate
moral ideas or principles.
Apparent cases of this are merely decorative,
without legal force.
Why? The purpose of the law is to enable
society to avoid and resolve disputes.
Applications of moral truths are always
What is positive law?
The Command Theory (Bentham,
The Social Convention Theory (Kelsen,
X is the superior of Y if and only if Y is
in the habit of obeying X, and not vice
A collection S of human beings
constitutes an independent political
society just in case there is one
member X (or some compact body X of
members) of S that is the superior of all
of the other members of S, and there is
no human being Y outside of S who is
the superior of X. In such a case, X is
called the sovereign of society S.
A command from X to Y is the
expression, in words or actions, of the
desire of X that Y act in a certain way,
backed up by a stated or implied threat
to impose some penalty on Y if Y does
A general command is a command
that is issued to an entire class of
individuals and that is intended to stand
for an indefinite period, until revoked by
A positive law is a general command
issued by the sovereign of an
independent political society to some or
all the members of that society.
Some problems with the
The theory applies clearly to an absolute
monarchy, but is much less clear when
applied to a society where some group is
What exactly does it mean to obey a
Can a group issue commands (in
Austin's sense) -- can a group share a
H. L. A. Hart argues that the command
theory cannot distinguish between a
legitimate government and an armed
robber ("give me your money or else").
The "Gun Man" objection.
Parliamentary or constitutional law, laws
governing the actions of the sovereign,
do not count as law at all.