Legal positivism

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It is a perversion of terms to say that a charter gives rights. It operates by a contrary effect — that of taking rights away. Rights are inherently in all the inhabitants. ~ Thomas Paine
All men have original equal rights which government did not give and cannot justly take away. ~ George William Curtis
The government cannot bestow dignity, and it cannot take it away. ~ Clarence Thomas

Legal positivism is a school of thought of philosophy of law and jurisprudence, largely developed by eighteenth and nineteenth-century legal thinkers such as Jeremy Bentham and John Austin. However, the most prominent figure in the history of legal positivism is H. L. A. Hart, whose work The Concept of Law caused a fundamental re-thinking of the positivist doctrine and its relationship with the other principal theories of law.




  • The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry.
    • John Austin, The Province of Jurisprudence Determined (1832)



  • The positivist thesis does not say that law's merits are unintelligible, unimportant, or peripheral to the philosophy of law. It says that they do not determine whether laws or legal systems exist. Whether a society has a legal system depends on the presence of certain structures of governance, not on the extent to which it satisfies ideals of justice, democracy, or the rule of law. What laws are in force in that system depends on what social standards its officials recognize as authoritative; for example, legislative enactments, judicial decisions, or social customs. The fact that a policy would be just, wise, efficient, or prudent is never sufficient reason for thinking that it is actually the law, and the fact that it is unjust, unwise, inefficient or imprudent is never sufficient reason for doubting it. According to positivism, law is a matter of what has been posited (ordered, decided, practiced, tolerated, etc.); as we might say in a more modern idiom, positivism is the view that law is a social construction. Austin thought the thesis “simple and glaring.” While it is probably the dominant view among analytically inclined philosophers of law, it is also the subject of competing interpretations together with persistent criticisms and misunderstandings.
    • Leslie Green, "Legal Positivism", The Stanford Encyclopedia of Philosophy (Fall 2009 Edition), Edward N. Zalta (ed.)


  • Legal positivism has become one of the main forces which have destroyed classical liberalism because the latter presupposes a conception of justice which is independent of the expediency for achieving particular results. Legal positivism, like the other forms of constructivist pragmatism of a William James or John Dewey or Vilfredo Pareto, is therefore profoundly antiliberal in the original meaning of the word, though their views have become the foundations of that pseudo-liberalism which in the course of the last generation has arrogated the name.
    • Friedrich Hayek, Law, Legislation and Liberty, Vol. 2 (1976), Ch. 8 : The Quest for Justice.


  • It is a perversion of terms to say that a charter gives rights. It operates by a contrary effect — that of taking rights away. Rights are inherently in all the inhabitants; but charters, by annulling those rights, in the majority, leave the right, by exclusion, in the hands of a few. … They...consequently are instruments of injustice. The fact therefore must be that the individuals themselves, each in his own personal and sovereign right, entered into a contract with each other to produce a government: and this is the only mode in which governments have a right to arise, and the only principle on which they have a right to exist.


  • Human dignity has long been understood in this country to be innate. When the framers proclaimed in the Declaration of Independence that 'all men are created equal' and 'endowed by their Creator with certain unalienable Rights', they referred to a vision of mankind in which all humans are created in the image of God and therefore of inherent worth. That vision is the foundation upon which this nation was built. The corollary of that principle is that human dignity cannot be taken away by the government. Slaves did not lose their dignity, any more than they lost their humanity, because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away.

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