John Austin (3 March 1790 † 1 December 1859) was an English legal theorist who posthumously influenced British and American law with an analytical approach to jurisprudence and a theory of legal positivism.  Austin rejected traditional approaches to „natural law“ and opposed any need for connections between law and morality. Human legal systems, he argued, could and should be examined empirically and worthlessly. The two most important statements of positivism in the 20th century are Hart 1997 (originally published in 1961) and Kelsen 1970 (first published in 1934). Hart was influenced by earlier British positivists such as Austin and Bentham, as well as the future Wittgenstein, but his text proved to be the most influential text on positivism in the English-speaking world. Hart argues that any legal system is a union of binding („primary“) rules and social rules of transmission of power („secondary“); In the latter case, a sufficient number of system officials accept these rules as guidelines for their conduct and as standards for assessing the conduct of other legal participants. The most basic secondary rule in the system is what Hart calls a „recognition rule“ that sets out the ultimate criteria for legal validity (e.g., „What Parliament enacts is law“). Hart`s discussion has been at the center of almost every discussion of legal positivism since its publication in 1961. The second edition (Hart 1997) contains a posthumously published postscript in which Hart primarily addresses the critique of Ronald Dworkin, a response that has itself produced considerable literature.
Kelsen`s theory is also one of the great positivist theories of the 20th century. It is more inspired by certain themes of European (and especially neo-Kantian) philosophy. Kelsen`s texts had less influence in the English-speaking world and received much less scientific attention, which is no doubt due to his difficult and sometimes obscure prose. Green 2003 provides a comprehensive and up-to-date overview of the various competing positivist theories and contains a short but reliable bibliography for further reading. Leiter 2003 and Shapiro 2007 give useful summaries of the dialectic between positivists and their critics over the past three decades. Gardner 2001 takes a different path in shedding light on the nature of positivism by distinguishing it from other views that are often wrongly identified as central to positivism. Legal positivism is often juxtaposed with natural law. According to the faculty of natural law of jurisprudence, all written laws must be informed of the universal principles of morality, religion and justice or designed in such a way that they are compatible with them, so that a law that is not just and equitable cannot be rightly called a „law“. For example, individuals who engage in peaceful protests through civil disobedience often invoke a higher law of nature by denouncing social practices that they deem offensive. Legal positivists generally recognize the existence and influence of non-legal norms as sources to be consulted when assessing human behavior, but they argue that these norms are desirable only because the individuals who violate them do not suffer immediate negative consequences for them.
In contrast, positivists point out that legal norms are binding and enforceable through the government`s police power, so people who break the law can face serious consequences, including fines, imprisonment, loss of property, or even death. Hart`s book, originally published in 1961, is by far the most influential statement of legal positivism in the English-speaking world of the 20th century. Hart`s style is admirably clear and accessible, making it a fitting introduction for undergraduate, graduate, and university students. This is a general but concise overview of the history and development of positivism since its inception. Also a brief discussion on the broader methodological problem of the role of evaluation in the construction of legal theories, a topic that has come to the forefront of the debate among positivists and legal theorists in general. A good introduction for undergraduate, graduate and science graduates. At one point, Hart identified legal positivism with there is no doubt that moral and political considerations influence legal philosophy. As Finnis says, the reasons we have for establishing, maintaining, or reforming the law are moral reasons, and these reasons therefore shape our legal concepts (1980 [2011:266-273] and 1996:204). But what concepts? If one accepts, as Finnis does, that the existence and content of the law can be identified without recourse to moral arguments and that „human right is an artifact and an artificiality; and no conclusion from moral premises“ (1996:205), it will be difficult to see how the theory of natural law he developed rivals the truth of legal positivism rather than absorbing it (see Gardner 2001, 225-227). This also weighs on Lon Fuller`s criticism of Hart (Fuller 1958 and 1964).
Fuller has two main points. First, he believes that it is not enough for a legal system to be based on usual social rules, since the law could not guide behaviour without being at least minimally clear, coherent, public, forward-looking, etc. – that is, without showing to some extent these virtues collectively called „rule of law“. Suffice it to note that this is compatible with the law of sources. Even if the moral qualities were identical or outdated to these constitutional qualities, they do so because of their majestic character. Whatever virtues are contained in clear, consistent, forward-looking, and open practices, they can be found not only in the law, but in all other social practices with these characteristics, including habit and positive morality. And such virtues, if they exist, are insignificant: there is little, if any, to be said in favor of a clear, coherent, forward-looking, public, and impartially administered system of racial segregation. Fuller`s second concern is that if the law is a fact, we have no explanation for the duty to obey.
He asks how „an amoral date called the law could have had the special property of creating an obligation to obey it“ (Fuller 1958:656). One possibility he overlooks is that this is not the case. But even if Fuller is right in his undisputed hypothesis, the „special quality“ he doubts about the existence of is a well-known feature of many practices. Compare promises: Whether a company has a practice of promise and what someone has promised is a matter of social facts. But promising bonds create moral obligations of performance or remuneration. An „amoral date“ can indeed appear, along with other premises, in an argument valid for moral conclusions. At first glance, exclusive positivism may be difficult to reconcile with the moral criteria of legal validity in legal systems such as that of the United States. For example, the Fourth Amendment provides that „the right of persons to be free from improper search and seizure of their persons, homes, papers and property shall not be violated.“ Similarly, the First Amendment prohibits laws that restrict the right to free speech.
Taken literally, these amendments seem to make moral standards part of the conditions for legal validity. In reality, however, legal positivism cannot be identified with either of the two theses: both are false. There are many necessary „links“, trivial and non-trivial, between law and morality. As John Gardner notes, legal positivism takes a position on only one of them; he rejects any dependence on the existence of the right on his merits (Gardner 2001). And with regard to this relationship of dependence, legal positivists are concerned with much more than the relationship between law and morality, because it is only in the sense that they insist on a separation of law and morality that they must also – and for the same reasons – insist on a separation of law and economy. Hart, for his part, acknowledges that the judicial legislative power is limited in two respects: „Not only are the powers of judges subject to many limitations that limit its choice, of which a legislature may be quite free, but since the powers of the judge are exercised only to settle certain immediate cases, he cannot use them to introduce large-scale reforms or new codes“ (Hart 1994, p. 273). What explains the judge`s discretion to enact new legislation in a particular case, in Hart`s view, is not the absence of legal standards that limit his or her decision; Rather, it is the absence of legal norms that dictates a particularly correct response to the case.
The judge cannot rule on such a case solely by applying the existing law, as there is more than one result available that is in accordance with the existing law. In such cases, it is impossible to make a substantive decision (instead of simply referring the matter to the legislator) without creating a new law. Legal positivism has also been confused with the old idea of positive law. Leslie Green (2003), for example, argues that the term „legal positivism“ was introduced into medieval legal thought, and cites Finnis (1996) as the source of this claim – although Finnis does not discuss legal positivism, but positive law. In fact, it was not until the twentieth century that some influential legal theorists began to call themselves „positivists“ and their doctrines of „legal positivism,“ including Hans Kelsen (1945), H. L.A. Hart (1961), and Joseph Raz (1986). The problem with Dworkin`s analysis, however, is that it falsely assumes that a public servant cannot enact a new law unless there are no legal norms that limit the official`s decision. In fact, legislatures in jurisdictions like the United States never have what Dworkin calls strong discretion. Even the legislative decisions of Congress, the nation`s highest legislative branch, are still limited by constitutional norms. For example, under the Fourteenth Amendment, Congress cannot pass a law that sets a speed limit for male drivers on highways and another for female drivers.