Legal Positivism: Early Foundations
Gerald J. Postema
Legal positivism is a vital and controversial approach to central questions of philosophical jurisprudence. Not only are its core theses contested, but claims about what its core theses are, and what it stands for, have been hotly disputed in recent years. We can get some perspective on these debates if we look to the history of legal theory from which contemporary positivist jurisprudence has emerged. But we should not take any contemporary formulation of the doctrine as canonical, since most such formulations are contested. So, rather than seeking out full-fledged, card-carrying positivist theories in the history of jurisprudence to interrogate, we will explore the articulation and development of a set of themes which arguably have attracted at least some major positivist legal theorists. The aim of this chapter is to set the stage for understanding Hart’s neopositivist theory of law (Hart 1994, first published in 1961), and that of more recent philosophers working in its shadow, by locating their work in the context of positivist themes and arguments that have developed over the long history of philosophical reflection about the nature of law.
Jeremy Bentham and John Austin, thought to have offered classic formulations of positivist doctrine, are central to the plot of the story told here. Both legal theorists, in very different ways, revolutionized jurisprudence, departing dramatically from the developing positivist tradition. Bentham’s revolutionary path, for the most part, was not followed or even much considered by subsequent jurisprudence, while Austin’s influence was and continues to be great. The nature and scope of their respective reorientations of legal theory are brought into relief in this chapter by sketching first the development of positivist themes beginning with Plato, Epicurus, Aquinas and Marsilius of Padua.
In the course of his classic discussion of the question whether it is better to be ruled by a wise man or wise law, Plato (427–347 bce) articulated a common-sense understanding of key features of law (Plato 1995). Law, he assumed, is meant to provide rational agents with guidance to right or wise action, but it is addressed in public terms to a public consisting of individuals engaged in complex patterns of social interaction. So it must give its guidance wholesale, i.e., for general circumstances and broad classes of people. But he observed that, as a consequence, law’s wisdom can sometimes appear to be folly; law and the right or rational can diverge. Yet, he argued, we are well advised to opt for the rule of law rather than men, since the costs of permitting unregulated official discretion are high.
The Epicurean tradition (third to first century bce) emphasized even more strongly the adventitious features of law (Long 2007: 122–27). On this view, while pleasure is the greatest good, the greatest pleasure is mental tranquility and the greatest disturbance of such tranquility is fear of harm suffered at the hands of others. Being free of the primary causes of the desire to harm (hatred, envy, low self-esteem), the sage is not inclined to harm others, because he knows that refraining from harming others sacrifices nothing of value. However, he also realizes that if he is known to be unwilling to respond to violence with violence, others who do not appreciate the pointlessness of violence will be emboldened to attack. Thus, Epicurus argued that justice, formally expressed in legal norms, “was never anything per se, but a contract regularly arising at some place or other in people’s dealings with one another, over not harming or being harmed” (Epicurus 1987: 127) Justice and law are products of a kind of mutual, consensual arrangement; coercive sanctions are added to assure those who are independently motivated to comply with law that advantage will not be taken of them by those who are shortsighted and fail to recognize law’s benefits.
Late Medieval Jurisprudence
Epicurean jurisprudence was one form of a more general view of law, common in late ancient and medieval theory, that understood law to be artificial or conventional, in the sense that it is temporally limited and changing, stemming in part from intelligent human activity, and rooted in potentially varying custom or practice, which manifests the “consent” or “consensus” of those subject to the law. Some laws might be made by the prince, on this view, but the bulk of law was planted deeply in the soil of custom, for, as Aristotle (384–322 bce) wrote, nomos [law] has no compelling force beside that of ethos [custom] (Aristotle 1996: 49). In the eighteenth century, Hume offered a sophisticated version of the convention-based understanding of law, grounding the formal elements of law in informal social conventions and practices (Hume 2000: 307–45).
However, a more distinctively positivist conception of law is evident in the work of two important late medieval philosophers. I will refer to this as the “thetic” conception—taking the term from the Greek tithenai, meaning to put, as in laid down or posited—to highlight the fact that law, on this conception, is seen to be explicitly and intentionally made and imposed on law-subjects.
Aquinas (1225–1274) took lex as opposed to ius as the core concept in his discourse on law. The contrast he drew between these two concepts highlights the extent to which he embraced the thetic model of law. According to Aquinas, ius is the object of iustum (right or justice). It is a condition or state of affairs: the right ordering of the external actions or interactions of members of a community of equals (Aquinas 2002: 158–60). Ius is established by nature (ius naturale), but it may also be instituted in part by agreement or mutual consent (ius postiva) (Aquinas 2002: 161–63, 201). Lex is the public expression of ius, that is, the rules or measures prescribing right order, publicly expressed and typically reduced to writing (Aquinas 2002: 160). Moreover, lex does not merely declare or make public this order, it makes or institutes it through this expression, “giving it the force of authority” (Aquinas 2002: 201).
According to Aquinas, lex differs from ius in nature, source and force. First, lex is action-guiding; it consists of rules (“ordinances of reason”) addressed to self-directing rational agents, prescribing actions to be performed. It guides action through the agency of another rational being: “Every law proceeds from the reason and will of a legislator” (Aquinas 2002: 153). Lex is a dictate of reason that exists first in that lawmaker who then “imprints” it on the minds of law-subjects (Aquinas 2002: 110), inducing or restraining (“obliging”) their actions (Aquinas 2002: 77). Thus, promulgation is essential to the nature and binding force of lex (Aquinas 2002: 82–83). Second, it is essential to lex that it originates in and is established by one who has the standing or authority to direct the actions of others. This must be a “public person,” one charged with care of the community (Aquinas 2002: 81). Moreover, third, since laws are not merely declared but are imposed on law-subjects (Aquinas 2002: 110), the relationship of lawmaker to law-subject is one of superior to inferior (Aquinas 2002: 58). The appropriate response of the law-subject is obedience, which involves taking the will of the legislator for one’s own. “By obedience,” Aquinas wrote, “we slay our own will” (Aquinas 2002: 64–65).
Aquinas’s model of law is distinctively thetic, but it is not exclusively so, for a directive has the character of law, in Aquinas’s view, only if it is in accord with reason, and more specifically, only if it is properly directed to the common good (Aquinas 2002: 78–80). In the view of many, this addition is enough to consign his theory to positivism’s rival camp, natural law jurisprudence. But this should not obscure its contributions to the developing understanding of positive law. We should keep in mind that by “character of law” Aquinas does not have in mind the legal validity of some norm, but rather the condition of having the full nature and force of law. So, he means to say that when laws fail to be directed to the common good they fail in an important dimension to be and do what we reasonably expect laws to be and do.
Moreover, Aquinas’s account of law is not merely a hybrid of positivist and naturalist elements, for the thetic elements of his account are internally linked to this substantive element. Juridical law is needed, in Aquinas’s view, because the common good for a community is in large measure indeterminate both as a goal and with regard to the means needed to achieve it. This makes coordinating our interactions with others especially difficult, for we often do not know what the common good requires of us, and even if we do, we lack adequate assurance that others share our understanding or are sufficiently motivated to comply with its requirements. In view of these conditions, we need publicly accessible, manifestly authoritative, explicitly articulated directives to determine the indeterminate and the difficult to determine, and to assure a sufficient degree of general compliance with the resulting social order that any individual’s compliance is reasonable and warranted. This, on Aquinas’s view, is precisely what law is designed to offer.
The thetic dimensions of law are even more marked in the work of Marsilius of Padua (ca. 1275–1343). Law, according to Marsilius, seeks to direct actions which are autonomous in nature and transitive in effect (Marsilius 2005: 213–14). Law elicits actions “as a result of [the agent’s] empire,” i.e., it directs actions which fall within the control, liberty and agency of their agents, and it concerns only actions that have the potential to affect others, especially to harm or injure them. Although we sometimes misleadingly use the term “law” to refer to principles of action to which we are habituated through “disciplines of work,” law properly so-called lacks such habituation (Marsilius 2005: 53, 215), and so “lacks a soul and moving principle” (Marsilius 2005: 216). It needs a maker to issue the standard, a judge to assess acts relative to that standard and a coercive incentive to secure compliance. On Marsilius’s view, laws are universal judgments of justice and public good which can be viewed in two ways: either as indications of what is just or advantageous, or as imperatives expressed in a “command … which coerces by means of a penalty” (Marsilius 2005: 53). But, strictly speaking, a true judgment of what is just for a community is not yet a law, “unless a coercive command has been given in respect of its observation” (Marsilius 2005: 54, 66). By the same token, although laws can fail as true indications of what is just, a coercive command that does not even pretend to offer an assessment of what is required by justice would have the form of law only but not its proper content, both of which are essential to law.
Marsilius required more of the form of law than that it express a coercive command. Laws, he argued, provide that “without which civil judgments cannot be made in a way that is simply speaking correct” (Marsilius 2005: 56). That is, they are necessarily general and secure a kind of impartiality with respect to particular agents and circumstances. This makes possible a degree of equality or equity among parties governed by it which is essential for the role law plays in social ordering (Marsilius 2005: 56–57). Moreover, following Aristotle, Marsilius insisted that law is prince over all (Marsilius 2005: 61). Law is the form of the prince’s exercise of power (Marsilius 2005: 51, 56–57, 61) in the dual sense that it constitutes the office, standing and power of the prince and is the mode of ruling to which the prince is held. The source of law, however, lies not in the prince, according to Marsilius, but in the “human legislator” who holds supreme lawmaking authority and power. This power is located in the community as a whole—the universal body of citizens, or its “prevailing part” (Marsilius 2005: 66–72). It is supreme in a polity because it directs the actions of free individuals, and even more because it defines and constitutes the social order; it is located in the universal body of citizens because it most fundamentally touches their lives. According to Marsilius, law serves three important functions: (1) it defines and confines the exercise of lordship, and in particular warrants and vindicates the exercise of coercive force; (2) it constitutes and structures all fundamental social and political relations; and thereby (3) secures the peace amongst people who, while by nature sociable, are nevertheless prone to passions that drive them into conflicts.
The Command Tradition
In the work of Aquinas and Marsilius we find most of the themes that figure in a tradition of thinking about the nature of law that extends from the thirteenth to the nineteenth century—a tradition in which the idea of command became the central organizing concept or metaphor. Considering only writers in the seventeenth century, we find it not only in the work of Hobbes (1588–1679), but also in Scholastics like Francisco Suarez (1548–1617), Protestant theorists like Samuel Pufendorf (1632–1694) and even classical common-law theorists like Sir Matthew Hale (1609–1676).
The core elements of this tradition, modeled by the concept of command, include the following. First, law is seen as a matter of directives addressed to, and ordering the behavior of, rational, free, self-directing agents. Suarez, for example, wrote, “properly speaking, only those who have the use of intellect and reason are governed by law” (Suarez 1944: 51; see also 22). Similarly, the English jurist, Sir Matthew Hale, wrote that a law is “a rule of moral actions, given to a being endued with understanding and will” British Library Hargrave MS 485, fo. 3; see also Pufendorf 1994: 102, 123). However, law is meant to engage and direct the will, the executive faculty of a rational agent (Suarez 1944: 56; Pufendorf 1994: 112). Law presents an agent’s will with the product of another agent’s deliberation, judgment and will.
Second, the model of command captures the distinctive form of law’s normativity: law does not merely point out reasons for action, it imposes binding obligations. Using a trope common throughout the history of legal philosophy, Hobbes wrote, “law in general, is not Counsell, but Command”; “a man may be obliged to do what he is Commanded … But he cannot be obliged to do as he is Counselled” (Hobbes 1991: 183, 177). Even the “laws of nature,” in his view, are properly regarded only as conclusions or theorems of reason rather than laws, unless they are seen as God’s commands (Hobbes 1991: 111). Moreover, third, these new reasons provided by law’s commands are tied exclusively to the fact that its directives are commanded by one in authority. Pufendorf wrote, “laws are obeyed principally because of their prescriber’s will and not because of their content” (Pufendorf 1994: 119). Commands are meant to make conforming behavior nonoptional by precluding deliberative consideration of reasons for alternative actions. “Command is, where a man saith, Doe this, or Doe not this, without expecting other reason than the Will of him that sayes it” (Hobbes 1991: 176).
Fourth, laws modeled on commands presuppose that the party commanding has the standing or authority to do so. Commands, Hobbes reminded us, are addressed to those antecedently obliged to obey them (Hobbes 1991: 183). And Matthew Hale wrote: a law is “a rule of moral actions, given to a being endued with understanding and will, by him that hath power and authority to give the same and exact obedience thereunto per modum imperii” (Hargrave MS 485, fo. 3). Moreover, writers in this tradition uniformly held that the capacity to command presupposes an essential asymmetry in the relations between lawgiver and law-subject. Pufendorf, for example, held that “the faculty of enjoining something in the manner of law or precept implies superiority, just as the obligation to obey proves that we are inferior to one who is able to prescribe to us” (Pufendorf 1994: 59; see also Suarez 1944: 127). Making and imposing law was seen as an exercise of dominion (Suarez 1944: 67), presupposing the subordination of law-subjects to the authority and the coercive power of the lawmakers. Coercive sanctions were typically regarded as logically necessary complements of commands and hence an essential feature of law. The capacity effectively to exact obedience to law is not just a coincidental expression of the lawgiver’s dominion, on this view, for it is regarded as essential to manifesting the seriousness, the nonoptional character, of legal obligations and the lawmaker’s claim to impose them on the subject. “It is vain to prescribe something that can be neglected with impunity,” Pufendorf argued; “one who can be disregarded with impunity rules only by the indulgence of others” (Pufendorf 1994: 59, 126). In this tradition it was thought that the claim of sovereign power made by enacting and imposing laws is in effect withdrawn if violations are known not to be punished.
Hobbes developed this tradition in an important way, arguing for it on explicitly normative grounds. He argued that in the absence of a common authority (that is, in the state of nature), we lack common standards and are forced to make private judgments of good and evil, right and wrong, and mine and thine, as well as judgments of our own best interest and the common interest. Certain demonstrable “laws” of nature and equity are available to the natural reason of each of us, he argued, but they bind only on the condition that we can reasonably expect others to comply with them as well, a condition that is manifestly unmet in the state of nature. We are likely, then, to suffer regular, persistent and disastrous conflicts of interest and principle, which can be avoided, he argued, only by putting full and unlimited authority in the hands of a sovereign. However, to solve the problem posed, the sovereign is charged with minimizing such disastrous conflicts by defining for us and enforcing common public standards to govern our interactions. That is, the sovereign is expected to exercise authority through law. In his Dialogue, Hobbes wrote, “A Law is the Command of him, or them, that have the Soveraign Power, given to those that be his or their Subjects, declaring Publickly, and plainly what every of them may do and what they must forbear to do” (Hobbes 2005: 31). He looked to law to make clear, decisive and determinate standards by which people are expected to govern their actions in the polity. Law is not like philosophy “and other disputable Arts,” he argued, but rather is a matter of explicit, public, manifestly authentic commands (Hobbes 2005: 29). This brings to mind Aquinas’s view of the primary task of law, except that Hobbes insisted further that for this purpose the standing of a norm as valid and binding must not depend in any way on its judgments of its justice or reasonableness. “It is not Wisdom,” he argued, “but Authority [alone] that makes a Law” (Hobbes 2005: 10). Hobbes acknowledged that law is (the expression of) reason, but the reason he had in view is only the fallible, utterly ordinary “natural reason” of the sovereign, which is deemed by law-subjects to be public reason, i.e., reason that is meant to take the place of their individual, private reason and judgment. To achieve this purpose, the sovereign’s commands, the authenticity of which are public and undisputed (Hobbes 1991: 189), must displace the private deliberation and judgment of each citizen. Law, conceived on the command model, is an essential part of the solution to the problem of privacy of judgment which in his view bedevils public life.
Bentham’s Revisionist Positivism
Bentham (1748–1832) oriented his thinking to this thetic conception of law and developed the most comprehensive, systematic and sophisticated theory of law in the positivist tradition. Yet his boundless intellectual energy could not be contained within any paradigm and his restless drive to reform legal thought and practice led him to radical revisions of received ideas even as he explicitly endorsed them. Legal theory in general, and the positivist tradition in it, was transformed by his relentless work—or rather, it would have been, had he published the bulk of this work and had the English legal establishment been more receptive to his reform ideas. Rather, it was John Austin’s pedestrian account of law and narrow view of the jurisprudential method that defined the career of positivism throughout the nineteenth century and well into the twentieth. Bentham’s work (much of it having come to light only in recent decades) represents a positivist road not taken or only recently considered.
Bentham was a tireless and penetrating critic of the practice of English law (see Postema 1986, ch. 8, sec. 2), arguing that its devices, pretenses and modes of thought forced it to lurch unpredictably between absurd rigidity and unconstrained flexibility. This, he charged, made it radically unsuited to the fundamental tasks of law, which are to secure expectations and coordinate the complex interactions characteristic of modern social life (Postema 1986, ch. 5