The myth in question goes by various names, but is perhaps best captured as the “no necessary connection thesis” (Gardner 2001; Raz 2003). According to this thesis, legal positivism is committed to the view that there is no necessary connection between law and morality (for ascription of this myth to legal positivism, see e.g., Davies and Holdcroft 1991: 3). There are (at least) three problems with this thesis, and with its role in contemporary legal philosophy. The first problem is that it is false as a statement about the nature of law. There are many necessary connections between law and morality, from the seemingly obvious and perhaps less significant—such as that, necessarily, law and morality both contain norms; or that, necessarily, legal systems cannot exhibit the personal vice of jealousy—to the potentially more important (and, in some cases, more controversial), such as that, necessarily, law can be subject to moral evaluation; necessarily, law makes moral claims of its subjects (this cannot be explored here, but for an explicit defense of it, see Green 2003 and 2008); or, given the conditions of human existence, necessarily, law regulates some morally important matters in certain ways, for example, in having rules protecting human life and bodily integrity (see, e.g., Hart’s discussion of the “minimum content of natural law” in Hart 1994, ch. 9, section 2).

Considerations such as these have led some legal philosophers to wonder whether we should abandon the term “legal positivism” and, more generally, to doubt the value of speaking in terms of broad schools of thought in jurisprudence at all: “In truth, such dichotomies [between legal positivism and natural law] are rarely revealing of any important truth” (MacCormick 2007: 278); “Perhaps it is time not to refute legal positivism, but to forget the label and consider the views of various writers within that tradition on their own terms” (Raz 2007: 35). While these are important cautionary notes to sound, there will be reason to retain the term and its (judicious) use, if, despite the points made above, we can find some propositions about the nature of law which are held in common by contemporary legal positivists, and which illuminate something important about the nature of law.

Which views about the nature of law, then, are endorsed by contemporary legal positivists responsible for such diverse and wide-ranging legal philosophical work as are Joseph Raz, Wil Waluchow, Leslie Green, John Gardner, Andrei Marmor, Jules Coleman, Scott Shapiro and Matthew Kramer? (Hugely notable by his absence from this list is, of course, H. L. A. Hart. As we are nearing two decades since Hart’s death, I hesitate to include him amongst contemporary legal positivists. However, as his work has had immeasurable influence on most if not all living legal positivists, and as it has remained the subject of many contemporary debates, I will, of course, be making reference to Hart’s work in the course of what follows.) I venture to suggest that they are all committed to certain views about the social nature of law, and, more particularly, to the social thesis as regards the existence and identification of law.

Legal positivists understand law as having a fundamentally social nature: it is a human artifact which has been socially constructed. As the term “legal positivism” itself connotes, law exists in virtue of the fact that it has been posited: because human beings, and the social institutions they create—such as legislatures, courts and legal officials—have decreed or decided or recognized or practiced or enforced or interacted in some way with a given set of norms (Gardner 2001; Green 2003). Those human social processes bring legal norms into existence, and are also the means by which they are modified and/or extinguished. More specifically, contemporary legal positivists are committed to the social thesis. They hold that the existence and content of the law is ultimately to be determined by reference to social facts, in particular by reference to law’s social sources, and not by reference to the merits of the legal norms in question. To simplify for the purposes of example: that a bill has been passed by votes in the House of Commons and the House of Lords and has received the Royal Assent—that it has emerged from that series of social facts, has those social and institutional interactions as its source and that legal material emerging from that source is recognized by legal officials in the United Kingdom as constituting valid law—is what makes it into part of the statutory law of the UK. A bill which those social facts has rendered an Act of Parliament is valid law even if it lacks merit to the point where it should never have been introduced to or supported in Parliament in the first place, or recognized or enforced by anyone, and a bill which is meritorious to an admirable degree but which has failed to receive the relevant votes or Royal Assent, and so does not have a social source which counts as a law-constituting source in the UK, is not valid law.

To return to legal positivism: it should be noted that some have thought that the social thesis lends support to or even entails a version of the no-necessary-connection thesis, i.e., that if law is to be identified ultimately by reference to its social sources rather than by reference to its merits, the law so identified cannot of necessity possess any moral qualities. This, however, is a non sequitur which is explicitly rejected by contemporary legal positivists: “The claim that what is law and what is not is purely a matter of social fact still leaves it an open question whether or not those social facts by which we identify the law or determine its existence do or do not endow it with moral merit” (Raz 2009: 38–9); “Legal positivists deny that laws are valid thanks to their moral merits. But they do not deny the converse proposition that laws might be morally meritorious thanks to their validity” (Gardner 2001: 224).

B. Some Disagreements Around the Agreement

A second area of controversy surrounds the issue of whether the social facts by means of which law’s existence and identity are determined are best understood as social con ventions of some kind, and, if so, of what kind. Debate on this issue has often been prompted by H. L. A. Hart’s version of legal positivism and, in particular, by his contention that the ultimate social fact upon which law’s existence and identity depends is acceptance in common by legal officials of a recognition rule specifying criteria of legal validity (Hart 1994). The question has then arisen as to whether, as Hart himself seems to indicate in the “Postscript” (Hart 1994: 256, 267), the common recognition practices of legal officials ought to be regarded as a social convention, i.e., wherein part of the reason which each official has for adopting the practice of accepting the recognition rule in question is the fact that her fellow officials so adopt it (for further discussion see Green 1999; Marmor 2001; Shapiro 2002; Dickson 2007).

A third point of contention is whether legal positivism offers a reductive account of legal validity, i.e., whether it attempts to reduce what it is for a norm to be legally valid to a certain combination of social facts. Some of those usually classified as legal positivists vehemently reject such reductivism, and contend that legal validity must be understood in purely normative terms: legal norms are valid in virtue of their relation to other legal norms higher up what are referred to as “chains of validity” of norms (see Kelsen 1967, although Kelsen’s work does not feature significantly in the present discussion for the reasons already outlined in relation to H. L. A. Hart). Other positivists, however, do reduce what it is for a norm to be legally valid to a combination of certain facts, e.g., the fact that the norm has been decreed by a sovereign, the fact that it is habitually obeyed by the relevant populace and the likelihood in fact that a sanction will be visited on those failing to comply with that norm (Bentham 1970/1782; Austin 1995/1832). Still others occupy what might be seen as an intermediate and perhaps tricky position, claiming that social facts (such as the fact of acceptance in common by legal officials) identify and constitute the recognition rules which determine legal validity in a given jurisdiction, but also insisting that the recognition rules so constituted must be understood in normative terms, i.e., as creating legal reasons for action. On this view, recognition rules must be understood normatively, and not merely as indications that certain facts have occurred or as predictions that they will occur, because that is how those rules are understood and used by the legal officials administering them (Hart 1994, especially his discussion of the “internal point of view” in chs. 5 and 6).

These complex and somewhat internecine debates can be explored further by referring to those works mentioned in this section. As there is no shared view on them among legal positivists, they do not feature among those core tenets by reference to which that position is characterized here. In any case, the present discussion largely sidesteps these issues in order to devote more attention to what I regard as a more fundamental point as regards contemporary legal positivism, namely why, if at all, are the theses about the nature of law to which it is committed important? This will form the topic for discussion in Part II below. Before embarking on that discussion, however, it is important to note a few other things that legal positivism is not.

C. What Else Legal Positivism Is Not

Legal positivists are committed to certain views about the nature of law, namely (in the sense explained above) the social thesis regarding the existence and identification of law, and, more broadly, the fundamentally social nature of law. These, however, are but a small subset of purported truths about law’s nature: legal positivism marks a commitment to certain views about some aspects of the nature of law