POSITIVISM IN JURISPRUDENCE

The term "jurisprudence" refers here to exercise of private and public decision-making functions involved in administration of the system of law of a particular political society, performance of functions related to making these decisions, scholarly critiques of these actions, and the knowledge and skill out of which these actions proceed. This is the classical notion of jurisprudence. The same term refers also to scholarly studies that principally concern the general nature of law, legal institutions, and legal processes in the application of law. Jurisprudence in both instances is a knowledge of law. In the first sense it is a working knowledge of a particular system of law. In the second sense it is a theoretical knowledge of law.

Scholars engaged in jurisprudence in the second sense are generally known in Anglo-American legal circles as jurisprudents. The position of positivist jurisprudents, whatever else it may include, may be described as minimally involving the assertion that in defining the nature of law of a political society the proper object is to separate the law as it is from the law as it ought to be, or to separate law from morality. Since in Western thinking positivism in the broad sense is much more extensive than the position of separating law from morality, it would be well to characterize the latter as "legal positivism." Some current discussions have attempted to distinguish legal positivism from a study called analytical jurisprudence. The latter has been asserted to be a neutralistic study of the meanings and usages of terms belonging to law and the relations of these terms to each other and to nonlegal language. The two concepts and studies that they are asserted to represent may be distinguished; however, the leading positivist jurisprudents, in elaborating their positions, either have not attempted or have not succeeded in the attempt to separate their analytical jurisprudence from their legal positivism.

Finally, although positivism in jurisprudence originated as a theory about the nature of law obtaining in political societies generally, and indeed is even called by its principal Continental exponent a "pure" theory of law, it is far from being a neutral theory free of practical implications for those engaged in jurisprudence in the primary sense. It is in fact inseparable from and probably is better described as a general theory concerning the proper interpretation of law of political societies. Positivism in jurisprudence was unquestionably intended by its proponents to have, and in fact has had, a profound impact on the practical jurisprudence of modern political societies. The jurisprudent, as H. Kelsen has put it, approaches the study of law as a law teacher, a law student, or a lawyer who seeks to determine what the law is. He does not concern himself with the specific meaning of particular legal rules of a given political society, but with a general theory of legal interpretation applicable to the legal system of any political society.

Principal Interpretations. Positivist jurisprudents have focused principally upon two problems of legal interpretation: the identification of law and the general method of expounding the meaning of what has been identified as law.

Identification of Law. In attempting to identify law, positivists have proceeded from at least two different vantage points. One of these is represented by the work of John Austin, the English jurisprudent, and the other by the work of Hans Kelsen, his Continental counterpart. Austin, a utilitarian, doubted whether even judges could engage in rational discourse concerning problems of justice presented in the administration of positive law, and whether they could agree on guidelines to be used or results to be reached in decisions resolving these problems. He expressed some hope for future generations in this respect as mankind progressed in knowledge of moral principles. Nevertheless, he developed his theory of law in light of his judgment that for the foreseeable future it would be impossible to obtain certain desirable goals of political society and at the same time admit into a working concept of positive law a working concept of justice. If one was to promote through a working concept of law the goals of societal stability, certainty in identification and elaboration of law, and ready obedience to law, one must necessarily exclude from that concept the uncertainty and imperfection inherent in human judgment about problems of justice.

Kelsen reached the same result because of his denial of the possibility of rational judgments about justice. He viewed a judgment about justice as a judgment of value always determined by emotional factors, subjective in character, and valid only for the judging subject. For this reason, jurisprudence as a scientific discipline whose aim is cognition of law must exclude from the domain of positive law the problem of the justice of law. Although it is certainly desirable, from this point of view, that the law of political societies will, when created, be considered generally to be just, administration of law is not a quest for justice but for cognition of legal norms.

Thus, for Austin and Kelsen, although for different reasons, the identification of law became a total separation of law from the morally just. They identified as law a working concept that might or might not in fact coincide with true moral justice (Austin) or with a subjective and merely emotional view of what is moral justice (Kelsen). As positivist jurisprudents are fond of saying, "Laws, however morally iniquitous, would still be laws." In his effort to separate law from morality Austin sought to treat as law only those rules he could comprehend within the concept of a command. For Austin, a command involved the power to inflict an evil upon the person directed to do something if he failed to comply. All that could not be fitted within this mold was rejected as not being law. Similarly, Kelsen sought to embrace all law by the concept of a social order based upon directives to officials to apply coercive measures to persons engaging in specified conduct when these directives were issued in accordance with a basic norm.

H. L. A. Hart, in the mid-20th century, rejected the command theory of law as "threadbare" and the directives-to-officials theory as a dogmatic suppression of other aspects of law. To secure a more adequate separation of law from morality, Hart proposed both an ultimate "secondary rule of recognition" whose function is to provide merely procedural criteria by which may be determined the validity of "primary rules of conduct" in the legal system and certain less ultimate secondary rules that govern both the application and modification of the primary rules.

Expounding the Meaning of Law. In constructing a theory for expounding the meaning of such law, positivist jurisprudents have excluded the concept of justice from the theory either totally or in large part. Kelsen, for example, employed the concept of an "objective meaning" of law, essential to the very possibility of a science of law. This concept implied techniques for determining the meaning of legal rules that focus primarily upon the words through which they are expressed. On the other hand, in order to preserve the unity and meaningfulness of an entire legal system, he incorporated a number of principles of interpretation designed for resolving logical contradictions in that system. For example, in order to deal with rules that in the light of their "objective meanings" contradicted previously formulated rules, he included within his general theory the principle lex posterior derogat priori.

Austin was far more definitive in elaborating a general theory relative to expounding the meaning of legal rules, particularly when statutory in form. His most characteristic statement concerning statutes is that "the law is one thing, the reason [for the law] another…." Thisbears a marked resemblance to his position that the existence of a law is one thing, whereas its merit or demerit is another. The expressions of statutory law, according to Austin, are to be viewed as having an objective meaning to be drawn from the provisions themselves and not from other indicia of meaning. Only if these provisions are ambiguous may the ratio legis and the history of the statute be considered. A fortiori, the judge must disregard considerations of justice that might move him to assign a meaning at variance with the objective meaning of the law. Moreover, Austin conceived of statutory law as precluding a judge from administering it except through the vehicle of the precise rules through which it was expressed, although he perceived an underlying principle that would logically indicate the propriety of other applications than the one expressed in the statute. Otherwise, the judge might engage in spurious interpretation, a process Austin condemned as subjecting administration of statutory law to the arbitrary disposition of tribunals. Although Austin recognized that traditional law was frequently administered in new ways by judges resorting to principles underlying specific rules for deciding cases, he strongly favored each political society's rejecting this form of law in favor of a statutory code of law wherever possible. He believed his general theory of interpretation as applied to statutory law would make possible a much greater measure of certainty in law administration. However, he and his followers conceded the necessity of judges making new law both in the traditional and statutory areas. But while deeming this necessity an ungovernable area of discretion except through precise legislation, they have not explored or elaborated an interpretative theory to provide for it.

Criticism. Four central criticisms of legal positivism have been made. They are objections to the positivistic interpretation given to legal process, identification of law, and law administration, and a warning that certain societal harms may arise from positivistic assumptions.

Legal Process. The first criticism asserts that the theory, in whatever form it has been stated, fails to reflect the reality of legal process, whether in identifying law or in elaborating and applying its meaning. In turning their attention away from the content of law by their mode of theorizing, legal positivists have necessarily had to turn away from the legal process by which that content is developed and modified in the course of time. This process throughout its extent is affected in fact by considerations of justice, conceptions of the purpose of law and political society, and a consensus concerning the modes and techniques of authority. The disregard for legal process by legal positivists indicates that their view is not realistic, however pure or analytical it may be. In prescinding to a greater or lesser extent from the content and processes of law, this theory deforms its object and, consequently, prevents its proponents and users from attaining the principal objective of the theory, which is the cognition of law that serves as part of a developing legal system.

Identification of Law. A second criticism of legal positivism is that its proponents misconceive what the problem of identifying or defining law really involves. In elaborating this criticism, L. L. Fuller has remarked that law is a social institution and that what is identified as law must be something with characteristics enabling it to serve the function of that particular social institution and, above all, to promote the objective of fidelity to law that legal positivists now generally concede is a prime objective of their theory. Inevitably, however, there are some characteristics about what legal positivists recognize or define as law that preclude the latter from adequately serving the function of law as an institution or of promoting fidelity to it. These objectives must be worked or planned for in the defining of law. A theory for defining positive law that prescinds from a consideration of these objectives is a faulty theory since it does not comprehend the necessary elements of the particular definitional problem.

Law Administration. A third criticism of legal positivism focuses upon the failure of its proponents to come to grips with undeniable difficulties of law administration. Their theory does not hide these; it may even highlight them. Currently, legal positivists are talking about the intersection or overlapping, especially in certain problem areas, between positive law and justice. Some of the major problem areas confronting them are the following: the assigning of meaning to laws where, according to any description of the task, law is being made; the field of procedural justice in the administration of law, which exacts objectivity and impartiality; the defining of the content of a legal system; the issuance of official decisions concerning the application of "law" to a transaction in light of its grossly immoral quality. By and large, legal positivists now recognize these problems, but only by way of acknowledging them as evidence of the inappropriateness of a total separation between law and morality in defining a working concept of law. They do not consider that their "minor" concessions of certain intersections weaken in any substantial way their effort to keep law separate from morality. Neither do they seek to resolve these problems but defer to other disciplines for their solution. The problems are, however, problems that those engaged in jurisprudence in the primary sense have to meet and solve. Critics of legal positivism insist that its proponents must also face them.

Societal Harms. The fourth criticism of legal positivism is that in proffering a working point of view regarding identification and elaboration of law, it may be responsible for certain societal harms. One of these is the failure of modern jurisprudents to discuss the prudential aspects of problems of justice involved in the operation of a legal system. Instead of making uncertainty or inability to attain science about questions of justice a reason for putting these questions beyond the pale of the legal discipline, jurists should make them the occasion of effort to understand as much as possible about the process of justice. To do so involves no necessary commitment to eternal verities about the minimal content of positive law, nor does it preclude affirmation of them. To the extent that it achieves acceptance, legal positivism defeats that inquiry into justice which ought to be one of its contributions to improvement of administration of law. Moreover, legal positivism can contribute to the dangerous tendency of men, including members of the legal profession, to accept as respectable law whatever has been officially recognized or proffered as such. One need not refer merely to the example of the legal profession in Germany, which, by its adherence to legal positivism, aided the Nazi drive for establishment of a dictatorship. One may see in the United States, positive harms resulting from practical effect being given in law administration to the views of legal positivism. Consider, for example, two decisions of the United States Supreme Court: Korematsu v. United States, 323 U.S. 214 (1944), and Application of Yamashita, 327 U.S. 1 (1946). These decisions were the product of the viewpoint of legal positivism. The doctrine provided a convenient principle for crediting as law what had been administratively formulated as the legal basis for placing a person in a concentration camp without regard to his innocence or guilt, in the first case, and as the basis for depriving a person of his life irrespective of any knowledgeable commission of wrong, in the second case. Legal positivism has also long provided in the Anglo-American legal systems the basis for an attempt to justify literalism and extreme devotion to precedent. To the extent that this has prevented the administration of law from proceeding in accordance with its purpose, the result has been to frustrate the realization of justice, and to some extent, the operation of the democratic principle. Legal positivism is possibly waning in significance as a doctrine of jurisprudence, but its practical legacy is still very much present in the practical administration of law.

Bibliography: j. austin, Lectures on Jurisprudence, ed. r. campbell, 2 v. (5th ed. London 1885). h. kelsen, General Theory of Law and State (Cambridge, Mass. 1945). h. l. a. hart, The Concept of Law (Oxford 1961). l. l. fuller, The Law in Quest of Itself (Chicago 1940); The Morality of Law (New Haven 1964). e. bodenheimer, Jurisprudence: The Philosophy and Method of the Law (Cambridge, Mass. 1962). s. i. shuman, Legal Positivism: Its Scope and Limitations (Detroit 1963).

[j. p. witherspoon]