Essay On Legal Positivism

This paper will provide a critique of legal positivism through consideration of its origins, principle scholars, theoretical assumptions, limitations. It will include an example of relevancy through the complex and divisive issue of same-sex marriage.

Legal positivism is a theory defined as, “a method of legal study that concentrates on the logical structure of law, the meanings and uses of its concepts, and the formal terms and the modes of its operation and that tries to understand the nature of law”(US Legal Dictionary - Law and Legal Definitions, 2016, n.p.). Legal positivism rests its validity upon separability. According to Pino (2014), “a legally valid rule does not lose its legal standing if it fails to conform to some moral requirement—and

Origins

Legal positivism theory is rooted in the writings of the English philosopher Thomas Hobbes (1588 – 1679). Hobbes belief was that law was based on a sovereign’s will. Hampton (1986) states Hobbes’s view is a positivist view because “law is understood to depend on the sovereign 's will. No matter what a law 's content, no matter how unjust it seems, if it has been commanded by the sovereign, then and only then is it law" (p.107). Positivism, itself, posits that society, like the physical world, operates according to general laws.

In the 18th and 19th centuries legal philosophers Jeremy Bentham (1748 -1842) and John Austin (1790–1859) evolved the theory of legal positivism. “Bentham argued that no one can be under a legal obligation without the threat of punishment. Indeed that threat is, he said, what constitutes “obligation”—and therefore wrong is synonymous with punishable” (Stumpff Morrison 2016, p.365). Austin said essentially the same thing, “Every law is a direct or circuitous command”; and “every command imposes an obligation” (p. 365). This view of the law, the command of the sovereign, supported by force dominated legal positivism well into the 20th

Hart’s position is that there is no necessary connection between a particular law and morals of a society. As such, a law will not divide citizens on any particular issue, but will embrace the belief that everyone is equal before the law. In the Obergefell (2015) decision, Chief Justice Roberts’s dissenting opinion supports this legal positivist belief that a decision made and enforced by the court sends a message of a substantial truth, with no recognition or legitimacy granted to different worldviews ( Obergefell, 135 S. Ct. at 2525-26 (Roberts, C.J.,