The Law To Know

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Modern analytical and empirical

Legal Positivism

Law is what the proper authorities have laid down, whatever its moral merit.

Late 18th century to today · England and Austria, then worldwide. Spotted a mistake? Tell us.

Read this first. This is a first map of a large subject. Each school is a family of views, and its thinkers often disagree with one another, so every summary simplifies. We describe each school in terms its own followers would accept and give the strongest criticism beside it. Read the original works before you cite anyone, and check your own course's reading list. This is general information, not legal advice.

What is law?

Law is a social fact: a rule is law because it was made, recognised or accepted in the right way within a legal system, not because it is just. Bentham and Austin saw law as the commands of a sovereign, Kelsen as a hierarchy of norms, and Hart as primary rules plus secondary rules, resting on a rule of recognition.

Law and morality

Conceptually separate. Positivists do not say law is always moral or must always be obeyed, only that whether a rule is law is one question and whether it is good is another.

Where does its authority come from?

The facts of social practice: who makes the rules, and what officials accept as the sources of law (statutes, precedent, custom).

How should judges decide?

Judges apply the valid rules, and where the rules run out they use discretion. Whether they may bring in moral reasoning is debated between inclusive and exclusive positivists.

The question it asks

What makes a rule a valid rule of law?

Main criticism

Natural lawyers say it cannot explain why law claims authority or how to treat monstrous regimes. Dworkin says it ignores legal principles. Others say law is not only rules.

Legacy today

The way most courts and law schools speak about sources of law, and the clarity of 'law as a social fact' in comparative law.

Key thinkers

Jeremy Bentham, John Austin, Hans Kelsen, H.L.A. Hart, Joseph Raz.

Key works

  • Bentham, Of Laws in General (written c. 1782)
  • Austin, The Province of Jurisprudence Determined (1832)
  • Kelsen, Pure Theory of Law (1934, 1960)
  • Hart, The Concept of Law (1961)

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Read further

Stanford Encyclopedia of Philosophy: legal positivism. For the exact arguments, go to the original works above.

TheLawToKnow Tools’s guide to schools of legal thought is an educational overview. It is not legal advice. Report a mistake.