Law & Legal Studies

The Misconceptions of Legal Positivism and the Way Ahead

The Misconceptions of Legal Positivism and the Way Ahead

Legal positivism is a normative theory of law and not a moral theory of law as it does not give a complete account of morality.


Harsh Mahaseth, Assistant Professor, Jindal Global Law School, O.P. Jindal Global University, Sonipat, Haryana, India.


The definition of legal positivism is that the thesis depends on the social facts rather than the merits.  It has had a long history and a broad influence on society ever since its inception. The theory which was fully developed by John Austin in the 18th century can date back its antecedents in ancient political philosophy.  His idea of legal positivism draws heavily from Bentham’s work which was a two-fold view that (1) both law and morality are separate from each other; and (2) all human made laws can be traced back to human lawmakers.

Though the definition of legal positivism that was set by John Austin was widely influential from the late nineteenth century till the early twentieth century, it is now seen as an overly simplistic understanding. The modern doctrines roots lie in the works of HLA Hart and Joseph Raz who have revised the position of legal positivism from the thinkers Thomas Hobbes and David Hume.

Hart has used Austin’s definition, pointed out the flaws present in it and then worked upon it. The following are the points that needed change:

(1) The legal systems also include rules that do not impose sanctions, some empower specified people to do certain things or specify ways in which legal rules can be identified or changed. Making wills are one example of a rule which does not impose a sanction but rather empowers the beneficiary to gain certain property and the officials to oversee it.

(2) It is difficult to identify a “sovereign” as defined by Austin as the law making power is dispersed with different bodies doing different functions.

(3) If legal duties are understood in terms of obedience to a determinate sovereign then it does not explain why laws still remain in force even when there is a change in government.

(4) All threats do not give rise to obligations. If they did then there would have been no difference between a gunman’s threat, where he makes you choose between your money and your life, and an ordinary piece of legislation.

Joseph Raz has played an important role in continuing Hart’s work. The pupil of Hart, Raz edited the second edition of Hart’s book “The Concept of Law”.  Raz subscribes to the source thesis which believes that the existence and content of law can be determined without any moral argument and on the reference to its sources. Raz being a hard positivist has argued that the moral criteria of legality is precluded by the concept of authority.

Published in: Legal Service India E-Journal

To read the full article, please click here.