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Positivism Before Hart

Published online by Cambridge University Press:  20 July 2015

Frederick Schauer
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Many contemporary practitioners of analytic jurisprudence take their understanding of legal positivism largely from Hart, and the debates about legal positivism exist largely in a post-Hartian world. But if we examine carefully the writings and motivations of Bentham and even Austin, we will discover that there are good historical grounds for treating both a normative version of positivism and a version more focused on legal decision-making as entitled to at least co-equal claims on the positivist tradition. And even if we conceive of the inquiry in philosophical and not historical terms, there are reasons to doubt the view that a theory of the nature of law is the exclusive understanding of the core commitment of legal positivism. Positivism as a descriptive theory of the nature of law is important, but so too is positivism as a normative theory about the preferable attitude of society or theorists, and so too is positivism as a normative or descriptive theory of adjudication and other forms of legal decision-making. Those who understand positivism and the positivist tradition as being more normative or more adjudication-focused than the contemporary understanding allows are thus committing neither historical or philosophical mistakes, and little would be lost were we to recognize the multiple important contemporary manifestations of the legal positivist tradition.

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Research Article
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Canadian Journal of Law & Jurisprudence , Volume 24 , Issue 2 , July 2011 , pp. 455 - 471
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Copyright © Canadian Journal of Law and Jurisprudence 2011 

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References

This article was first prepared for and presented at the conference on John Austin and his Legacy, held at University College London on December 16-17, 2009. I am extremely grateful for the timely and challenging comments of Brian Bix and Brian Leiter.

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16. See, for example, Bix, “Positively Positivism” supra note 7 at 903-15; Coleman, supra note 2; Leiter, supra note 7 at 1149-53; Marmor, supra note 7.

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20. See Fuller, Lon L, The Morality of Law, revised ed (New Haven, CT: Yale University Press, 1969) at 110–12, 145-51Google Scholar; Fuller, Lon L, The Anatomy of the Law (New York: New American Library, 1968) at 184–85Google Scholar.

21. Fuller, supra note 19 at 8.

22. Summers, Robert S, “Legal Philosophy Today—An Introduction” in Summers, Robert S, ed, Essays in Legal Philosophy (Oxford: Basil Blackwell, 1970) 1 at 15-16Google Scholar.

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24. Coleman, supra note 2.

25. Waluchow, WJ, Inclusive Legal Positivism (Oxford: Clarendon Press, 1994)Google Scholar; Himma, Kenneth Einar, “Inclusive Legal Positivism” in Coleman, Jules & Shapiro, Scott, eds, The Oxford Handbook of Jurisprudence and Philosophy of Law (Oxford: Oxford University Press, 2002) 125.Google Scholar

26. HLA Hart, “Postscript” in Hart, supra note 1 at 250-54.

27. Jules Coleman, “Negative and Positive Positivism”, supra note 7.

28. See Andrei Marmor, “Exclusive Legal Positivism” in Coleman & Shapiro, supra note 25 at 104; Raz, Joseph, “Legal Positivism and the Sources of Law” in The Authority of Law: Essays on Law and Morality (Oxford: Clarendon Press, 1978) 37 Google Scholar; Raz, Joseph, “Authority, Law and Morality”(1985) 68 The Monist 295.CrossRefGoogle Scholar

29. I borrow this way of expressing the difference between inclusive and exclusive positivism from Waldron, supra note 11 at 414.

30. Doubts about the possibility that conceptual analysis will yield substantive knowledge and thus be of value in jurisprudence are prominently expressed in Leiter, Brian, Naturalizing Jurisprudence (Oxford: Oxford University Press, 2007) at 121–202 CrossRefGoogle Scholar; Brian Leiter, “Legal Realism, Hard Positivism, and the Limits of Conceptual Analysis” in Jules Coleman, ed, supra note 2 at 355.

31. The leading challenges to this last assumption are Finnis, John, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980) at 3–22 Google Scholar; Stephen R Perry, “Hart’s Methodological Positivism” in Coleman, supra note 2 at 311; Perry, Stephen R, “Interpretation and Methodology in Legal Theory” in Marmor, Andrei, ed, Interpretation and Legal Theory: Essays in Legal Philosophy (Oxford: Clarendon Press, 1997) at 97.Google Scholar

32. Waldron, supra note 11.

33. See Schauer, Frederick, “The Social Construction of the Concept of Law: A Reply to Julie Dickson” (2005) 25 Oxford J Legal Stud 493 CrossRefGoogle Scholar. Waldron is unclear about the relationship between the normative part of normative positivism and the ontological status of the concept of law. When he describes normative positivism as viewing the separation of legal judgment as something “to be valued and encouraged,” he does not directly address whether the something that is to be valued and encouraged has an existence antecedent to the valuing and encouraging. That we should value giant pandas and encourage those who would help them thrive does not suggest that giant pandas are socially constructed for normative reasons. Concepts, however, and certainly the concept of law, are social constructions, and to value and encourage the separation of legal and moral judgment might be to encourage the creation or re-creation of the concept of law so that legal and moral judgment will become or will remain separate. This is the position in Schauer, ibid, but it is unclear whether it is Waldron’s as well.

34. Hart’s writings do not resolve conclusively whether he should be understood as sympathetic to normative positivism. That positivism should be chosen for instrumental normative reasons is a plausible reading of Hart, HLA, “Positivism and the Separation of Law and Morals” (1958) 71 Harv LR 593 CrossRefGoogle Scholar (see Murphy, supra note 12), and in The Concept of Law, supra note 1 at 209, Hart described the “reasoned choice” between positivism and natural law as a matter of “comparative merit.” Exercising this choice, says Hart, must involve determining which of them “will assist our theoretical inquiries, or advance our moral deliberations, or both.” For Hart, positivism is preferable not because it is an accurate description, but because “nothing is to be gained in the theoretical or scientific study of law as a social phenomenon by adopting the narrower concept [of natural law]” [emphasis added]. Moreover, he says (at 210), the view “that there is something outside the official system, by reference to which in the last resort the individual must solve his problems of obedience, is surely more likely to be kept alive among those who are accustomed to think that rules of law may be iniquitous, than among those who think that nothing iniquitous can anywhere have the status of law.” Hart continues in this vein for two more pages, making clear that for him the moral virtues of a positivist “concept of law” (at 211) provide the best reason for a society to adopt such an understanding.

Yet despite the foregoing, Hart elsewhere in The Concept of Law, and at times even in the 1958 article, emphasizes that his primary goal is descriptive accuracy, a view explicitly and persistently reinforced throughout the “Postscript” (e.g. at 240); see Green, “Positivism and the Inseparability of Law and Morals”, supra note 4 at 1039. And thus because there are statements in Hart’s work that would both support and rebut aligning him with normative positivism, it might be preferable to refrain from describing Hart’s view of positivism as either descriptive or normative, in favor of relying on Julie Dickson’s apt description of Hart’s different views about the question as “awkward.” Julie Dickson, “Is Bad Law Still Law? Is Bad Law Really Law?” in Del Mar & Bankowski, supra note 14 at 164. So even if the warrant for characterizing Hart as a normative positivist is questionable, the justification for claiming that his positivism was entirely descriptive is equally so.

35. Lyons, David B, Moral Aspects of Legal Theory: Essays on Law, Justice, and Political Responsibility (Cambridge: Cambridge University Press, 1993) at ix–x CrossRefGoogle Scholar (where Lyons explains his earlier sympathy with positivism as based on his belief that positivism “embodied a fitting lack of reverence for the law,” a position he then came to question). See also Schauer, Frederick, “Positivism Through Thick and Thin” in Bix, Brian, ed, Analyzing Law: New Essays in Legal Theory (Oxford: Oxford University Press, 1998) at 65 Google Scholar; Schauer, Frederick, “Positivism as Pariah” in George, Robert, ed, The Autonomy of Law: Essays on Legal Positivism (Oxford: Clarendon Press, 1996) 31 Google Scholar; Schauer, Frederick, “Fuller’s Internal Point of View” (1994) 12 L & Phil 285 CrossRefGoogle Scholar.

36. See Campbell, supra note 8 at 41.

37. See, for example, Gardner, John, “Legal Positivism: 5 1/2 Myths” (2001) Am J Juris 199 at 211–18Google Scholar; Himma, Kenneth Eimar, “Judicial Discretion and the Concept of Law” (1999) 19 Oxford J Legal Stud 71 CrossRefGoogle Scholar.

38. See Sebok, supra note 18.

39. David Dyzenhaus, supra note 12, develops an account and defense of what he calls “judicial positivism,” which is in the same neighborhood as what I describe here. But there is no reason to believe that all or most important decisions of legal application, enforcement, and interpretation are made by judges, and the term I use is intended to emphasize that a positivist theory of how legal actors do or should behave need not be parochially focused on judges alone.

40. Note that, pace Marmor, supra note 7, a decisional positivist need not have a view about a judge’s duties, whether moral or otherwise. Decisional positivism is foremost a view about the design of legal decision-making institutions, and the positivist (or Benthamite, if you will) view of judicial decision-making might, through sanctions or otherwise, attempt to prevent a judge’s reliance on her own moral judgments even if, from the judge’s perspective, it would be right to rely on those moral judgments when they conflicted with the positive law.

41. Austin, John, Lectures on Jurisprudence, or the Philosophy of Positive Law, ed by Campbell, Robert (New York: James Cockroft & Co, 1875) vol II at 108–35Google Scholar (¶¶ 932-969) (Lecture XXXIX, parts I & II). See also Ruben, Eira, “John Austin’s Political Pamphlets 1824-1859” in Attwooll, Ellspeth, ed, Perspectives on Jurisprudence (London: Rowman & Littlefield, 1977) 20.Google Scholar

42. See text accompanying note 13 above.

43. See Postema, supra note 10 at 304-08.

44. See Schauer, Frederick, “Formalism” (1987) 97 Yale LJ 509 CrossRefGoogle Scholar.

45. (1889), 22 NE 188 (NY Ct App).

46. See Atiyah, PS & Summers, RS, Form and Substance in Anglo-American Law: A Comparative Study in Legal Reasoning, Legal Theory and Legal Institutions (Oxford: Clarendon Press, 1987)Google Scholar; Posner, Richard A, Law and Legal Theory in England and America (Oxford: Clarendon Press, 1996)Google Scholar. Among the iconic works of the American instrumentalist and anti-formalist tradition would be Calabresi, Guido, A Common Law for the Age of Statutes (Cambridge, MA: Harvard University Press, 1982)Google Scholar; Hart, Henry M, Jr & Sacks, Albert M, The Legal Process: Basic Problems in the Making and Application of Law, ed by Eskridge, William N, Jr & Frickey, Philip P (New York: Foundation Press, 1994).Google Scholar

47. Compare, for example, Dickson, Julie, Evaluation and Legal Theory (Oxford: Hart, 2001)Google Scholar; Marmor, supra note 7; Joseph Raz, “Can There Be a Theory of Law?” in Golding & Edmundson, supra note 7 at 324; Soper, Philip, “Choosing a Legal Theory on Moral Grounds” (1986) 4 Social Phil & Policy 31 CrossRefGoogle Scholar; Wilfrid J Waluchow, supra note 25 at 86-98, with Dworkin, Ronald, Justice in Robes (Cambridge, MA: Harvard University Press, 2006) at 140–240 Google Scholar; Finnis, supra note 31 at 3-22; Perry, supra note 31.

48. The preceding sentences in the text summarize the argument in Schauer, supra note 33.

49. A valuable discussion is in Perry, Stephen R, “The Varieties of Legal Positivism” (1996) 9 Can J L & Jur 361 Google Scholar. See also Leslie Green’s distinction between methodological and object-level claims in Green, supra note 4 at 1038-39.

50. See supra note 34.

51. It would be extravagant to suppose that this plea would have any direct or immediate effect, but the same could be said about the normative voice in almost all of moral and political philosophy. The enterprises of normative moral, political, and legal philosophy are premised on the belief that philosophical progress might eventually and cumulatively translate into social change, but only the delusional participants in these enterprises believe that such change will take place in the short term or as the result of the efforts of any one theorist.

52. I bracket the interesting methodological question whether conceptual and normative positivism are mutually exclusive. If the conceptual positivist believes that there is a pre-existing concept that can be described without having or presupposing normative commitments, and if the normative positivist believes that constructing a concept of law must be based on normative considerations, then the two are incompatible. But if one believes that concepts can be created for normative reasons without themselves being normative, or if one believes that people can have normative reasons for identifying and stressing non-normative concepts, then normative and conceptual positivism can co-exist, and that modest claim is all that I make about Bentham here.

53. The “as well as” is important. Coleman warns against “confusing” legal positivism with “programmatic or normative interests certain positivists, especially Bentham, might have had” in “Negative and Positive Positivism,” supra note 2, but I do not deny that conceptual and normative positivism are different. I will presently challenge Coleman’s claim that only the former is entitled to be called “positivism,” and question his view that the latter (note the word “might”) is contingent and secondary, but I freely acknowledge that the two are different.

54. See Twining, William, Theories of Evidence: Bentham and Wigmore (London: Weidenfeld & Nicolson, 1985).Google Scholar

55. See Rumble, Wilfrid E, The Thought of John Austin: Jurisprudence, Colonial Reform and the British Constitution (London: Athlone Press, 1985).Google Scholar

56. Ibid.

57. “Analytical positivism rests, first, on the command or imperative theory of law—that that is law which is laid down by duly constituted political authority—in the case of England, by the sovereign Parliament—and that only that is law. From the command theory of law is derived a normative proposition that judges have no business making law, for that is the business of the legislature and it would be usurping the legislator’s functions for the judges to do so.” McWhinney, Edward “English Legal Philosophy and Canadian Legal Philosophy” (1958) 4 McGill LR 213 at 226Google Scholar [emphasis added]. Although disagreeing with McWhinney that Austin denied the existence of judicial legislation, Austin’s biographer WL Morison does not take issue with the claim that the foregoing claim about the derivation of a view about adjudication from Austin’s central descriptive and conceptual claims applies more to Austin than to other nineteenth century analytic philosophers of law. Morison, WL, “Some Myth about Positivism” (1958) 68 Yale LJ 212 CrossRefGoogle Scholar.

58. Austin, Lectures on Jurisprudence, supra note 41.

59. See Morison, supra note 57 at 152.

60. This crude and simple characterization of Bentham’s view about judging does not capture the far more sophisticated and nuanced position in Postema, supra note 10, but it is sufficient here simply to stress Bentham’s overall skepticism about the virtues of judicial power.

61. By virtue of legislative authorization, Austin believed.

62. Austin, Province, supra note 3 at 163.

63. Austin, Lectures on Jurisprudence, supra note 41 at 108-35 (¶¶ 932-969) (Lecture XXXIX, parts I & II).

64. “Legal positivism makes a conceptual, or analytic claim about law, and that claim should not be confused with programmatic or normative interests certain positivists, especially Bentham, might have had.” Coleman, supra note 7 at 11.

65. Some critics also characterize legal positivism as a claim about the concept of law taking on the form of some variety of the Social Thesis (or, occasionally, the Sources Thesis), the view that what counts as law is a question of social fact. Leiter, supra note 7 at 1141; Raz, , “Legal Positivism and the Sources of Law” in Raz, Joseph, The Authority of Law: Essays in Law and Morality (Oxford: Clarendon Press, 1979) at 37.CrossRefGoogle Scholar

66. See, for example, Bix, Brian H, “Legal Positivism” in Golding, Martin P & Edmundson, William A, eds, The Blackwell Guide to the Philosophy of Law and Legal Theory (Oxford: Blackwell, 2005) 29 at 31Google Scholar: “Legal positivism is a theory about the nature of law, by its self-characterization a descriptive or conceptual theory. By its terms, legal positivism does not have consequences for how particular disputes are decided, how texts are interpreted, or how institutions are organized.” Bix goes on to say that positivism does not have anything to say “about how certain ways of operating … should be evaluated or reformed.” Ibid. Also, “Positivism is a theory of law, while formalism is a theory of adjudication. If positivism is one’s theory of law, nothing substantial follows about one’s theory of adjudication.” Leiter, supra note 7 at 1149.

67. Characterizing the issue in terms of the “core commitments” of legal positivism is ubiquitous. See, for example, Himma, Kenneth Einar, “Substance and Method in Conceptual Jurisprudence” (2002) 88 Va LR 1119 at 1152Google Scholar; Andrei Marmor, supra note 8 at 685; Shapiro, Scott, “Law, Morality, and the Guidance of Conduct” (2000) 6 Legal Theory 127 at 127 and 129 Google Scholar.

68. Waldron, supra note 11.

69. Postema, supra note 10.

70. Lyons, David, “Founders and Foundations of Legal Positivism” (1984) 82 Mich LR 722 CrossRefGoogle Scholar.

71. Gardner, supra note 47.

72. See Greenawalt, Kent, “Too Thin and Too Rich: Distinguishing Features of Legal Positivism” in George, Robert P, ed, The Autonomy of Law: Essays on Legal Positivism (Oxford: Clarendon Press, 1996) 1 at 14Google Scholar, observing that the question of what is true about law in all possible legal systems “does not seem very important for understanding the legal systems under which we live.”

73. Leslie Green properly warns against taking current interest to legal practitioners as a necessary condition for fruitful jurisprudential inquiry. Green, Leslie, “General Jurisprudence: A 25th Anniversary Essay” (2005) 25 Oxford J Legal Stud 565 at 580CrossRefGoogle Scholar. But my claim here is different from those of Dworkin and others who appear to take the view to which Green properly objects. Unlike Dworkin, my plea with respect to a certain form of conceptual jurisprudence is not against its value, but only against its hegemony. For further development of this claim, see Schauer, Frederick, “The Best Laid Plans” (2011) 120 Yale LJ 586 Google Scholar; Schauer, Frederick, “Necessity, Importance, and the Nature of Law” in Ferrer, Jordi Beltran, ed, Neutrality and the Theory of Law (Madrid: Marcial Pons, forthcoming in 2011).Google Scholar