Talk:Legal positivism

Introduction

Currently the introduction is

"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. In more recent years the central claims of legal positivism have come under significant attack from Ronald Dworkin."

As someone who knows nothing about the topic, this introduction does not help me at all. Considering google is also now using the first sentence as a feature when searching topics, it only highlights the largely esoteric nature that the contributors to this article have taken. I'm sure I sound demanding, but I believe the article would be so much better if the introduction outlined at least roughly what Legal Positivism IS and not who developed it. — Preceding unsigned comment added by 210.54.34.40 (talk) 10:05, 22 January 2015 (UTC)

Problem

The sentence which states there is no connection between "law ethics, hence marality" makes no sense. Indeed it is not a complete thought. I had hoped to figure out how to correct it but the idea itself is so obscured by the poor language that I do not know what is being expressed. I have a few suggestions: there is no necessary connection between law and ethics. But then what of this "hence, morality" part? What does it mean? That morality itself comes from the disconnect between law and ethics? Could someone please correct this, it hurts my brain to look at it?

Alexy, POV

It is far from a certainty, and definitely far from an undisputed fact, that 'freedom is of obvious ethical significance', which the article without quoting any other source specifically stated before I modified it slightly to say 'according to Alexy...'. I thought I should report this edit in the discussion section. 213.112.137.177 15:22, 27 August 2006 (UTC)

Plagarism

The entire page appears to be copied from [this website:=http://www.answers.com/topic/legal-positivism] Either that, or they copied you.

Yoda921 07:23, 27 February 2007 (UTC)Yoda

If you look at the blue bar, you'll see answers.com gives credit to wikipedia. They do this all the time. Danielx (talk) 10:26, 25 November 2007 (UTC)

Against merging "laws without ethical content"

The fact that laws can be devoid of ethical content (which is different from claiming that laws can be devoid of an ethical basis) is not disputed by natural lawyers. It is not therefore a tenet of legal positivism that distinguishes it from its rivals. Hence the article "laws without ethical content" should NOT be merged to this article on legal positivism.

Simple facts, no?

Aren't the two points in the introduction simple facts? The first seems to derive from the definition of the word "law" itself. Is there an opposing school of thought which contradicts either one of these? Danielx (talk) 10:31, 25 November 2007 (UTC)

Also against merging "Laws without ethical content"

The article, "Laws without ethical content" defines such a law as "one that does not proscribe or mandate an act because of the act's moral or ethical value, but for some other reason." Positivism expresses no view on the motivation behind laws. It simply holds that law is a human posit, and does not flow DIRECTLY form morality itself. Humans may posit laws because of our moral convictions or for any other reason. But, according to positivism, these laws are still human posits. Don Loeb (talk) 01:07, 17 December 2007 (UTC)

Contemporary Practice?

Are there U.S. supreme court judges who would be considered Legal Positivists? I came to this page from the entry on Holmes, and wonder how this legal philosophy is used in today's world. Who uses it? How prevalent is it taught and practiced in the legal profession at large, and in the top courts of the U.S.? Also, is it strictly American, or is it also a philosophy in other cultures? (added this note on Oct. 23, 2008)

"Of course" non-NPOV

The article currently claims "Of course, in the Republic of the United States, the citizens have granted through the Constitution authority and power to the government to determine and enforce the laws." I can see multiple objections to this statement - which is disputed and non-NPOV as well as cn - including:

• Objections to the social contract theory in general, e.g. from anarchists.
• Objections to the historical claim, e.g. was the constitution a compact among the states or among the citizens.
• P.S. Objections to the claim that the United States government actually operates according to either the constitution or a social contract.
• It is, of course, a claim of certain political philosophies and not one that all people would regard as true, of course, or even coherent. 71.191.213.197 (talk) 22:25, 14 February 2009 (UTC)

Image copyright problem with File:1kelsen.jpg

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Exclusive and inclusive positivism

Should the section on positivism and ethics be edited to describe exclusive and inclusive positivism? I'm not sure if it corresponds with the "hard" and "soft" versions currently there; to be honest it is presently very vague. I think describing the necessity of the connection between law and morality would be better in terms of exclusive and inclusive positivism, which would account for much of the present literature on the topic, and also sound much better. 218.186.12.217 (talk) 11:52, 8 March 2009 (UTC)

Section heading

There's a section heading called "Legal positivism and strict interpritivism". Aside from the spelling of "interpritivism", what is this supposed to mean? There's a philosophy of strict constructionism, but it's not clear that this is what the section is about, as the article needs more clarity in its prose and better development. --Michael Snow (talk) 20:11, 28 April 2009 (UTC)

Actually, you're raising a bigger issue than you might know. To beggin with, strict interpritation is synonamous with textualism, a belief that one should consult the existing text and the existing text only when understanding its meaning. The larger issue is that this view is not held by all legal positivists. I 'think' this reading would be something advocated by Joseph Raz or someone of his ilk. The section drastically needs to be rewritten to note the importance of the one for the other, but to more clearly state their unnecessary connection. Piratejosh85 (talk) 21:27, 28 April 2009 (UTC)

Using English syntax

From the section: Legal validity and the sources of law

"Why the tendency is critical is for that the claim simultaneously opens the possibility to directly access to the constitution by those who have not direct legal interest so that the possible vein claim could be readily abused by some political movement(s) which is not regarded as normal work(s) of any law system. However, it is also true that legal positivism contributes to improve the way of legal reasoning in term of more nomothetic (rule-making) approach to a case in turn. To the point, legal positivim and legal realism are similar to each other except to recognizing the source(s) of law and jurisprudene. The reason why legal positivism is popular to are largely depending on its assimiliation to the modern normal science and its acceptance of social class theory else."

Can someone with better knowledge than I of the intended meaning of this section clean up the phrasing so that it is understandable? — Preceding unsigned comment added by 69.143.141.15 (talk) 07:00, 19 November 2011 (UTC)

Hart as the most prominent positivist?

The claim made early in the article that Hart is the most prominent positivist may be based on a parochial assessment. Although I am more sympathetic to Hart's version of positivism than Kelsen's, I must acknowledge that outside the Anglo-American world - and, alas, there are very many scholars outside the Anglo-American world - Kelsen is more widely studied than Hart. — Preceding unsigned comment added by 177.142.70.108 (talk) 17:21, 15 July 2012 (UTC)

Time problem: 19th century is not 1700s

The first and second lines of the article tells that Jeremy Bentham and John Austin are 19th century writers. Wrong. They are 18th and 19th (jsut John Austin) century writers as they wrote in the 1700s (John Austin wrote in 1800s). I suggest we modify the text with 18th and 19th century.

128.163.8.28 (talk) 17:12, 1 May 2013 (UTC)

Has been changed (though not by me) to "eighteenth and nineteenth-century legal thinkers such as Jeremy Bentham and John Austin". Seems ok now. Wikiain (talk) 06:41, 4 May 2015 (UTC)

References

A paragraph without meaning

The problems with this paragraph are so serious that I will make my comments inline:

Legal positivism was focusing[*Why the past continuous verb? Why not simple past or even better, the simple present "focuses"?] on how to prevent possible conflict between[*what is the object of this preposition? Like this: Between "A and B" where A is "concurrent rule(s) and successive norm(s)" and B is "or foundation of law(s)". Or is it something else.] concurrent rule(s)[*What is this? Does it indicate a singular or a plural or just laziness. It pollutes the whole paragraph.] and successive norm(s), or foundation of law(s) in reality so that it tends to equate the authority to compose a law(s) to[*Usually we would say "equates with" in this context] the authority to abolish a law(s). Why the tendency[*This is new. What tendency is this?] is critical is that the claim[*Ditto for the claim] simultaneously opens the possibility for direct access to the constitution by those who have no direct legal interest so that a possible vain claim could be readily abused by some political movement(s)[*Ditto] which is not regarded as normal work(s)[*Ditto] of any law system. However, it is also true that legal positivism contributes to improve[*This should be the participial verb form, improving.] the way(chain)[*What? I don't know what a "way(chain)" is.] of legal reasoning in terms of a more nomothetic (rule-making) approach to a case in turn[*in turn?]. To the point[*What point?], legal positivism and legal realism are similar to each other except in recognizing the source(s)[*Ditto] of law and jurisprudence. The(A)[*What is this?] reason why legal positivism is popular (to whom?)[*What is this?] is its assimilation of modern normal science and its acceptance of social class theory.[citation needed]

The errors in syntax and grammar and the repetitive use of stylistic shortcut(s), suggest to me that this has been written by a non-native speaker of English. If that is the case I suggest that that person write a more discursive explanation on this talk page that might express better what he or she is trying to say. Then, perhaps, we can tighten it up and produce a coherent paragraph. As it stands I have no idea what it means.

But first a little advice. A sentence's grammatical structure should reflect the logical structure of the underlying thought. Common English usage is to use the words "and" or "or" interchangeably to join the two words or phrases that comprise the object of the preposition "between". But, if the second item is a compound then you don't have a choice. You must write "between A or B and C" not "between A and B or C". The first means what you want (I think) but the second means the opposite.

Furthermore, there is no requirement that sentences be long and complex. Legal documents are usually written in a complex manner in order that there be no misunderstanding of the document's intended meaning. This has the effect of demanding a very close reading; no one wants to be hanged on a comma. But judges and lawyers are paid to do that kind of reading; you reader is not. You can afford to be less precise and easier to read. And you can always add another sentence to clarify. Clarity is the the goal.

Also, if you are going to introduce some new word or concept, make sure the meaning is clear. If there is tendency you have to say what it is. If there is a claim you have to state it. If it isn't absolutely clear from the nearby context, clarify it.

Finally, if you absolutely must indicate that a noun is to be taken as both singular and plural, then do so grammatically. For example, "If it is the case that a sentence (or sentences) is too complicated to understand, break it into pieces." Notice that in the following dependent clause it's not necessary to repeat the plural construction. If you have to change the structure of the whole sentence to make it grammatical, then do so.It's clearer that way.75.157.135.57 (talk) 08:04, 31 August 2013 (UTC)

What IS legal positivism?

I added a definition to the lede by extending a sentence: "holds that law is constructed from social facts, without regards to the merits of such law." This is a paraphrase of the Stanford source.

Feel free to improve it, but the article needed some definition of what the term means, not just its historical context. I avoided using the term "social constructs" and just stuck with the wording from the source. 2603:7081:1603:A300:8448:8888:CC8F:BC90 (talk) 12:00, 28 March 2024 (UTC)

The Lead

The lead has been subject to many variations. Recently I replaced a tortuous version with this:

Legal positivism is a contested label covering a range of approaches in philosophy of law and jurisprudence that are commonly considered to hold (a) that law is not an occurrence in "nature" independently of human knowledge or action but is "positive" in the sense of being an observable social fact, (b) that this fact consists of "posited" products of human will, and (c) what is to count as 'law' is to be determined independently of moral value.

One or more of these tenets have been held, most prominently, by Thomas Hobbes in the 17th century, in the 18th and 19th centuries by Jeremy Bentham and John Austin, and in the 20th by Hans Kelsen, H. L. A. Hart, and Joseph Raz.

User:Mathglot has substituted another tortuous text. If I were to argue the toss between our texts, there could be a war and a pointless one. What I will insist on, however, against one of Mathglot's comments, is that the term "legal positivism" is not just various: it is contested. This has been examined in Stewart, Iain (2023). "Hans Kelsen, Legal Scientist". Journal of Legal Philosophy. 48: 119 at 122-24. (I identify as the author.) Its meaning has never had the coherence of representing a "school of thought".

My text above avoids supposing that "legal positivism" can usefully be characterised in an analytical (distinct from historical) way as a reaction to doctrines of natural law. That supposition is already incoherent, since (as Bobbio emphasises) the expression "natural law" (and equivalents) is itself contested. The lead to this article should not reproduce the contest over the phrase "legal positivism", only register it. Errantios (talk) 13:42, 19 June 2024 (UTC)

I'm not entirely convinced by (a) that law is not an occurrence in "nature" independently of human knowledge or action but is "positive" in the sense of being an observable social fact, which seems a bit complicated and perhaps inaccurate (would prominent natural law theorists like Finnis deny that law is dependent on human action and observable?). Also (b) is debatable because certain strands of legal positivism (such as the German historical school, Santi Romano's legal institutionalism, and others) challenge the notion that law is solely the product of deliberate human will and argue that law can also emerge organically from established practices and customs. Finally (c) does not apply to "inclusive legal positivists" (such as Jules Coleman, Gerald J. Postema and the very same H.L.A. Hart) who argue that what counts as law is determined by moral values rather than "pedigree", if the rule of recognition so establishes.

. Gitz (talk) (contribs) 14:22, 19 June 2024 (UTC)

Gitz, you usefully illustrate the very problem that my formulation attempts to address with its "contested label", "covering a range" and "commonly considered". Errantios (talk) 22:41, 19 June 2024 (UTC)

I'm okay with changing "school of thought" to something else, as long as it's supported by the sources. (See the collapsed snippet below for more on this.) However, your claim that contested label is a valid description, is without support in reliable sources, and thus cannot be the choice of words to use here in Wikipedia's voice, as you did in this edit. There is one source that does support it, namely your 2023 book review in J Legal Phil, but nothing else does. Several neutral searches in books and websites found terms such as theory, view, philosophy of law, major tradition, intellectual tradition, idea, and approach, but no contested label:

Some results from searches in books and web

Neutral searches were performed in books and websites to look for trends in how books and articles about Legal Positivism define it. A representative sample (un-picked) is shown below: Searching books for legal_postivism_is: a "theory", an "intellectual tradition" – The Cambridge Companion to Legal Positivism, Spaak 2021:... p. 3 "theory", "view", "important legal theory" – Philosophy of Law: A Very Short Introduction, Wacks 2014, abstract "set of concepts" – The Philosophy of Positive Law: Foundations of Jurisprudence, Murphy 2008 , p. ix "[one of the three] major traditions in jurisprudence" – Normative Jurisprudence: An Introduction, Westone 2011: p. 'PP1' "a theory about the nature of law" – Philosophy of Law, Marmor 2014 , p. 115 Expanding to web search for legal_positivism_is : "a thesis" – SEP "a philosophy of law" – Internet Encyclopedia of Philosophy "[one of the leading] philosophical theories of the nature of law" – Oxford Bibliographies, Legal Positivism "theory about the nature of law" – Legal Positivism: Still Descriptive and Morally Neutral, Marmor 2006 "idea", "theory" – Legal positivism and the real definition of law, Plunkett 2022 "incoherent intellectual enterprise" – "On the Incoherence of Legal Positivism" by John Finnis, Finnis 2000 "approach [in legal philosophy]" – Routledge Encyclopedia of Philosophy

Based on the numbers I found, I might choose something like, major tradition in the philosophy of law but other expressions have support and could serve equally well. However, contested label has no support, and cannot.

Given that your preferred term is not the majority view, nor even a significant minority view, but only the view of a tiny minority of one, per WP:DUEWEIGHT the expression contested label should not appear in the article at all; most certainly not in the defining sentence of the article, nor even in the body.

Regarding the rest of your proposed lead: as someone with expert knowledge and multiple academic publications on this topic to your credit, and who are probably used to addressing other professors and graduate students in the field, you are perhaps too familiar with the topic to see how abstruse and opaque your formulation is to those not already familiar with the field, which makes it all but unattainable for the general reader. This places it in violation of the MOS guideline for the MOS:LEADSENTENCE, which says:

The first sentence should introduce the topic, and tell the nonspecialist reader what or who the subject is, and often when or where. It should be in plain English.

Virtually nothing in your version is in plain English, least of all the first sentence. The version present in the article just before your edit was much better.

Regarding the term school of thought, I would say this: those are not my words, I merely restored them from an earlier version. You didn't seem to have any problem with school of thought before, as in this edit of yours, or this one. My edit was an improvement, restoring previous stable wording that is preferable to contested label, which is a no-go per the sources. However, like I said above, that does not mean that that is the best possible term, just the less-bad one from earlier on. There are plenty of other, better choices and I suggest we use one of them, such as "major theory in the philosophy of law" or similar, which is both in plain English, and represents a majority view among reliable, secondary sources. Thanks, Mathglot (talk) 05:48, 20 June 2024 (UTC)

Replaced school of thought with intellectual tradition for now, until this settles out from the discussion. Mathglot (talk) 07:16, 20 June 2024 (UTC)

I could provide another list, this time of direct references to authors, which I think would fully justify the term "contested label". While that very phrase may be my own invention, the idea certainly is not. See, especially, Bobbio as summarised in my article. Or the most recent extensive recent reflection—Walter Ott and Anna Rea-Frauchiger, The Varieties of Legal Positivism (Dike, 2018)—which, although it characterises legal positivism as "one of the most important contemporary schools of thought", refers to "the dismaying inability to reach agreement" (p 1) and the book goes on to demonstrate exactly that. If there is a "school", it is a fractious one and thus of dubious identity. Or, even more recently, in 2021, Spaak and Mindus, The Cambridge Companion to Legal Positivism, which you quote as referring to "a 'theory', an 'intellectual tradition'" (p 3). For these words are used within the context of acknowledging "a considerable lack of clarity as to what, exactly, the term 'legal positivism' stands for, or should stand for" (p 2, see also later on p 3). They further claim that in other major European languages "the equivalents to the English term 'legal positivism' have had no very clear meaning" (p 3, cp 5). However, their discussion and the succeeding multinational contributions appear to me to show not that these meanings have been less clear than the English but that they too have been contested. Errantios (talk) 13:23, 20 June 2024 (UTC)

I could provide a much bigger list, showing that innumerable definitions have been given for 'Art' (even multiple books and chapters entitled, What is Art?) but that doesn't mean we should run over to the Art article and alter the lead sentence to "Art is a contested label". You could apply the same exercise to almost any field of academic study, as it is the business of academics to look at their field and define it as they see it. Heck, there are even numerous books called What Is Mathematics? There may be a place in a subsection lower down the body to get into an exposition of the the various definitions and disagreements about it over time and by different scholars, but the WP:LEADSENTENCE is very definitely not the place to do that. If and when someone does add a subsection like that, the contested label formulation, present in no other source, should not be the way to refer to it, unless by consensus as added by some other editor than the author of the phrase. Mathglot (talk) 16:54, 20 June 2024 (UTC)

I agree. Since Gallie's essay on essentially contested concepts we have plenty of those, but we don't need to specify in the lead sections of "democracy", "freedom", "equality", let alone "legal positivism" and other schools of thought, that these concepts are contested - in the lead, we should strive for clarity and simplicity. However, if we have enough sources and content to write a section on "Controversies over the concept of LP", that might be helpful. I plan to write a section on the exclusive/inclusive legal positivism controversy in the near future, yet I wouldn't specify in the lead that legal positivists have different views on the relations between morality and legal validity. Gitz (talk) (contribs) 17:10, 20 June 2024 (UTC)

May I suggest that we replace the current OS (Legal positivism is a modern intellectual tradition in the philosophy of law and jurisprudence that holds that law is a set of rules created by human beings who prescribe certain procedures for its enactment) with the following?

In jurisprudence and legal philosophy, legal positivism is the theory that the existence of the law and its content depend on social facts rather than on its value

As per WP:FIRST, this seems simpler and clearer. Most importantly, I strongly doubt that the current reference to procedures for enacting the law is mainstream: so-called "primitive law" has no such procedures, yet legal positivists acknowledge that it is law. The proposed text can be sourced with Green, Leslie (2003). "Legal Positivism". The Stanford Encyclopedia of Philosophy. Legal positivism is the thesis that the existence and content of law depends on social facts and not on its merits. Gitz (talk) (contribs) 17:32, 20 June 2024 (UTC)