Notre Dame Law Review

Volume 32 | Issue 1 Article 3

12-1-1956

Legal Positivism
Reginald Parker

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Reginald Parker, Legal Positivism, 32 Notre Dame L. Rev. 31 (1956).
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 LEGAL POSITIVISM
The legal positivist holds that only positive law is law;
and by "positive law" he means legal norms by authority
of the state. Nothing else is "law" to him, even though
he may recognize other normative orders such as the
religious or moral orders, or etiquette. Furthermore, every-
thing thus created by state authority is law to the posi-
tivist, even though he may deplore the state of the law
and seek to change it. The name "legal positivism," inci-
dentally, appears to be preferable to "analytical juris-
prudence" or "analytical positivism," which are often
used, especially in connection with John Austin's work.'
The legal thinking of the positivist is no more "analyti-
cal" (either in the sense of critical thinking or pertaining
to analysis as opposed to synthesis) than that of, say, an
adherent of the historical school.
It is beyond the scope of this brief exposition to outline
the history of legal thinking, on which there exist many
excellent works.' Suffice it here to remind ourselves that
until the eighteenth century most, if not all, legal philoso-
phy was steeped in the theory of natural law. We may add
the observation that many of the great protagonists of one
or another natural law idea, such as Plato,3 Aristotle (to
some extent),' Cicero,' St. Thomas Aquinas, Richard
I E.g., Friedmann, LEGAL THEoRY 133 passim (3d ed. 1953).
2 See, e.g., ibid; CAINS, LEGAL PHLosoPHY From PLATO To HEGEL (1949).
3 For two recent studies of Plato's natural law, see: STmUSS, NATURAL
RIGHT AND HISTORY (1953); WILD, PLATO'S MODERN ENEWIIES AND THE THEORY
OF NATURAL LAW (1953). But see the somewhat skeptical review of these
two books in Friedrich, Two PHLosoPHIcAL INTERPRETATIONS OF NATURAL
Lv, 10 Diogenes 98 (1955).
4 KELSEN, The Metamorphoses of the Idea of Justice, in INTERPRETATIONS
OF MODERN LEGAL PHsaOsOPms 390, 399-409 (Sayre ed. 1947); Cairns, op. cit.
supra note 2, 77, 118, 121 (1949).
5 Who, contrary to some popular notions - e.g., WILKIN, ETERNAL
LAwYER: A LEGAL BIOGRAPHY OF CICERO (1947) -was not a lawyer but an
orator and politician with some legal training. Parker, Book Review, 60
HARv. L. REv. 1371 (1947); SCHULZ, HISTORY OF RoATAN LEGAL SCIENCE 51, 68-
69 (2d ed. 1953).
 NOTRE DAME LAWYER [Vol. XXXII

Hooker, Locke, and Rousseau, were not lawyers but

rather general philosophers or essayists and publicists of
one kind or another. However, those lawyers of the past
who did indulge in legal philosophy did accept the natural
law doctrine just as much as their brethren of the purer
philosophy. Grotius, Christian Wolff, Samuel Pufendorf,
and, of course, Sir Edward Coke,' may be mentioned as
examples. The position, however, of some eminent classical
lawyers, such as Ulpian or Bracton, can be regarded as
dubious despite occasional references to "natural law."7
The eighteenth century saw the culmination of the
natural law idea, with its ideals of the brotherhood and
equality of man and the social contract theory; but it also
saw the rise of skepticism. Montesquieu, better known to
posterity for his doctrine of separation of powers, can
be regarded as the originator of both sociology and com-
parative jurisprudence.' It was he who first propounded
the thesis that both law and basic conceptions of justice
are necessarily influenced not only by religion and custom
but also by climate and soil. His contemporary, David
Hume, "destroyed the theoretical basis of natural law" 9 by
denying both the existence of axiomatic truths in the sphere
of human behavior and the idea that there are-a priori,
as later Kant would have termed it-ascertainable rational
principles of human behavior of universal validity. His
ideas, expressed more than a hundred years before modern
6 In Dr. Bonham's Case, 8 Co. 113b, 114a, 77 Eng. Rep. 646, 647 (1610),
Coke proposed that unreasonable acts of Parliament be void. It cannot be
said, however, that he ever transformed this dictum into a rule of law.
7 Ulpian maintained that natural law is that which "nature teaches all
animals," DIG. 1.1.4., which, if true, would deprive it of its normative charac-
ter and constitute it as a mere physical or causal law. Bracton, BRAC. 1.3.1.,
1A.1, states that law is promulgated by prudent men in council and that
without law a person cannot be just.
8 BARNES, Social Thought in Early Modern Times, in AN INTRODUCTION
TO THE HISTORY Or SOCIOLOGY 29, 46 (Barnes ed. 1948); FIIDamANN, LEGAL
THEORY 50 (3d ed. 1953).
9 FRIEDMANN, op. cit. supra note 8, at 50.
 19561 LEGAL POSITIVISM

anthropology, are strikingly modern, yet they failed

to replace the natural law philosophy with a working sys-
tem of legal theory. This was first done by Friedrich Karl
von Savigny, the founder of the historical school of juris-
prudence."0 His most important disciple (albeit not in
every respect) in the world of English law was Sir
Henry Maine. Savigny, one of the greatest legal scholars
of all times, pointed out that even as language and customs
are different in every nation, so do the legal systems of
the nations necessarily yary from one another; and that
this is indeed desirable, for what is "good" or "correct"
law for one nation is not necessarily so for another.
Yet Savigny's historical school, which has had a most
profound influence on man's approach to history from
the Brothers Grimm down to Toynbee and Spengler,"
while maintaining and indeed forcefully demonstrating
that laws are not of universal validity, retains some natural
law element. Its founder at least, and some of his fol-
lowers, insisted that law must be found rather than made
-"it is first developed by custom and the people's faith,
next by legal science, therefore everywhere by internal,
silently operating forces rather than the arbitrary will of
a legislator."' 2 There is some wisdom in this-some of these
thoughts, expressed almost a hundred and fifty years ago,
can be applied here and now-but it is an ideology never-
theless. It states the nature and origin of good and desirable
law, or at any rate of such law as a German law professor
of the Romantic school would find (by listening to the
3.0 SAVIGNY, Vom Bat uNsPEm ZErr Ftm GESET=GEBUNG uND REcnTswissEN-
scmEa (2d ed. 1828, Hayward's transl. 1840).
1 For instance, nowadays nobody would dream of drawing ideas from
Greek and Roman examples for the purpose of introducing a modern con-
stitution, as the authors of The Federalist did in 1787.
12 SAViGNY, op. cit. supra note 10, at *14. (Translation is mine.)
13 Cf., in reference to our Administrative Procedure Act, PARKER, AD-
UnwisTRATE LAW: A TEXT 64-65 (1952); Madden, Book Review, 5 VAND. L.
Rxv. 680. 686 (1952); Parker, Book Review, 5 ADT. J. CoDip. L. 146, 149 (1956).
 NOTRE DAME LAWYER [Vol. XXXII

"people's spirit") to be good and desirable; but it fails to

explain the nature of law as such, good, bad, or indifferent.
To do this was left to modern positivism.
In the following, the tenets of positivism shall be out-
lined and its moral value demonstrated. In pursuing this
task, however, no attempt shall be made to investigate the
various subschools, as it were, that have sprung from the
loins of positivism and relativism. Rather, we will confine
ourselves to the author's own views, which are largely
influenced by Hans Kelsen.'4 This seems altogether ap-
propriate inasmuch as legal philosophy in this century
will be mainly a conversation with Hans Kelsen.'*
It was John Austin who pointed out "6that law cannot
be defined by the inclusion of any ideal of justice and that
law must be determined by reference to its source, i.e., the
sovereign: "Every positive law, or every law simply and
strictly so called, is set by a sovereign person, or a body
of sovereign persons.. ."" And the sovereign is defined as
a "determinate humane superior, not in a habit of obedi-
ence to a like superior," who receives "habitual obedience
from the bulk of a given society."'" Thus the command of
the sovereign, under threat of sanction, is law according
to Austin. But the question presents itself: who determines
who the sovereign is? Austin's approach to this obvious
probkf-m is blurred by vague references to the constitution
of the state. In other words, it is a certain set of laws that
14 Particularly, KELSEN, GENERAL THEORY OF LAW AND STATE (1945), and
KELSEN, Science and Politics, 45 Am. POL. Sci. REv. 641 (1951). The latter is
a little masterpiece that should be read by every lawyer.
15 For a good piece of evidence supporting the above remark, see RECASENF
SIcHEs, Cossio, AzEVEno, and MAYNEz, LATIN-AIERiCAN LncAL P~moSoPHY
(1948); BUCXLAND, SoME REFLECTIONS ON JURISPRUDEN E (1945).
16 AUSTIN, TE PRovINcE OF JURISPRUDENCE DETERMINED (5th ed., Camp-
bell, with notes of John Stuart Mill, 1885; re-edited by H. L. A. Hart, 1934).
The citations in the following notes are to the (undated) British "Library
of Ideas" edition.
17 Id. at 193.
I8 Id. at 194.
1956] LEGAL POSITIVISM

determines who is to make the law! This recognition, far

from being wrong, as we shall see, somewhat emasculates
Austin's proud sovereign. Moreover, Austin's theory fails
to explain the position of the courts, wherefore Gray,
another pre-Kelsen positivist, could assert that "in truth"
all law is judge-made law, inasmuch as-quite aside even
from judicial precedents-it is the courts that give legisla-
tive enactments their true meaning and delineation.' 9
Kelsen, who incidentally developed his theory while
he lived on the Continent and apparently in ignorance of
Austin, resolved these and other doubts. Like Austin, he
proposed that whether law is "just" (and therefore, in
the view of some, "natural") or "unjust" depends on cri-
teria not capable of scientific cognition. Law is enacted for
a certain purpose, which the lawmaker, in performing his
political task no doubt regards as a good one, but no ob-
jective value judgment can be rendered in regard to
this purpose, and hence in regard to the law as the social
technique to accomplish this purpose. Rather, law like the
norms of any normative order, is either valid or not, re-
gardless of whether we like its contents.20
Thus the validity of a legal norm depends, as Austin
knew, on its source; it is not a "sovereign" to whom we
must look, however, but rather to the legal order itself.
It is the legal order that determines the validity of a
legal norm.2 If, for instance, a city police chief promulgates
a new traffic rule, this rule is valid only if the legal order,
such as a regulation of the state highway commissioner,
authorizes it; and the commissioner's regulation must like-
19 GRAY, NATURE AND Sou cEs or T=E LAw 84, 96, 98, 121, 125 (2d ed. 1921).
For a further discussion of judge-made law see notes 36-38 infra.
20 "Judgments of justice cannot be tested objectively. Therefore, a
science of law has no room for them." KELSEN, GENERAL THEORY OF LAW AM
STATE 49 (1945); AusTIn, op. cit. supra note 16, at 190. On Kelsen's views of
Austin, see KELsEN, GENERAL THEORY or LAW AND STATE, preface xv-xvi.
21 "It is a peculiarity of the law to regulate its own creation" K sr-s,
Science and Politics, 65 AM. POL. SCL REV. 641, 654 (1951).
 NOTRE DAME LAWYER [Vol. XXXII

wise be grounded in law, e.g., a statute authorizing him

to issue regulations. The lawmaking power of the legisla-
ture derives from the state's constitution, which in turn
may be based on an older constitution. The original state
constitution was again authorized by higher law, in our
case the Federal Constitution, which authorizes the states
to make law in those fields not reserved to the federal gov-
ernment. This might be a fair outline of the American
picture, but it is at once obvious that this system of legal
hierarchy is confined neither to this country nor to any
particular country or form of government. It is simply a
description of the norm-creating process, whether it takes
place in America, England, Nazi Germany, or ancient
Rome. To say, therefore, that "under our system even
government must operate within the law,"" as one often
hears, is too narrow. Not only our government but any
government can act only within the law. Even Hitler's
"will" was law unto the Germans only because the then
German constitution provided that he had the supreme
lawgiving power.' What Justice Douglas' above quota-
tion24 means is that, under a system such as ours, the
government may only act within the confines of pre-
established, ascertainable law. That is the constitutional
situation in what the Germans call a Rechtsstaat, which
unfortunately is not the state of affairs in several other
countries, such as Spain or Arabia. Yet nobody can truly
doubt that the legal systems of those and many other
autocracies, old and new, constitute "law," too.
Having determined that any law must be based on the
constitution - written or unwritten, tyrannical or demo-
22 Justice Douglas in Yanish v. Barber, 73 Sup. Ct. 1105, 1108 (1953). For
occult reasons the decision has so far not been published in the official re-
porter.
23 See the discussion of this kind of law in In the Matter of the Estate
of Leefers, 127 Cal. App. 2d 550, 274 P.2d 239 (1954).
24 See note 22 supra.
19563 LEGAL POSITIVISM

cratic - whose mandate thus can be equated with Austin's

command of the sovereign, the question can no longer
be suppressed: on what is the constitution based? Of
course, many a constitution was enacted pursuant to
the authority of a previous constitution; and so may our
Constitution be based on the Articles of Confederation.2
But who or what authorized the latter? Its force can be
said to be grounded in a revolutionary act, as manifested
in the Declaration of Independence. Similarly, British law
can be traced a long way back; but the laws and decrees
of William the Conqueror were not authorized by those
who prior to him ruled England. We must concede that
it was his act of subjection of England that created what is
being called the basic norm: "A norm the validity of which
cannot be derived from a superior norm we call a 'basic'
norm. ' 26 Its assumption stems from the recognition that
successful revolutions, conquests, or even military oc-
cupations are norm-creating facts. The men who partook in
the French or American revolutions were law-violating
rebels - until they succeeded: ex iniuria ius oritur.
Of course, the basic norm is but an assumption. It is
not a logical but an empirical category; and there are
those who may dispute it, saying that a wrong, such as a
revolutionary act, can never create law. This theory of
legitimism, which flourished during the time of the Holy
Alliance, would recognize the United States as a legal
entity only by virtue of its ratification, as it were, by the
peace treaty with England. The awkwardness of this argu-
ment is obvious and it has been generally abandoned. More
potent, however, is the reference to international law. It

25 Article thirteen of the Articles of Confederation, however, authorized

changes of the Articles only upon unanimous assent of the states. The Con-
stitution was declared to be in force after ratification by only nine states.
It may be concluded, therefore, that the Constitution became law, like its
predecessor, by revolutionary act rather than by authority of existing law.
26 KXLSEN, GENERAL THEORY OF LAW Ao STATE 111 (1945).
 NOTRE DAME LAWYERX rVol. XXXII

can be said that successful conquests and revolutions are

norm creating facts because international law so authorizes.
If in our above example2" we could have restated the norm
(statute), that authorized the highway commissioner to
issue regulations, as follows: "whenever the highway com-
missioner finds that the exigencies of traffic (in regard to
such and such stated matters) make the enactment of
regulations necessary, he shall promulgate traffic regu-
lations," then international law can be restated as provid-
ing that whenever a group of men overthrows the govern-
ment and disrupts its legal continuity by establishing a
new legal order, which is generally accepted (to be effi-
cacious, a revolution must be successful),' the new legal
order is recognized and becomes the law of the land. A
new state or system of government has been formed.
It depends on one's political philosophy to choose the
force from which the basic norm derives. If it is inter-
national law, however - and this is Kelsen's political
choice29 - then the search for the basic norm has been
merely deferred, for if the law of nations is a legal order,
it, too, must have a basic norm. It would be grounded in
a provision of customary law, which might be formulated
as follows: "The States ought to behave as they have
customarily behaved.""0 Nothing can demonstrate more
forcefully the weak character of international law than
its basic norm. As a matter of fact, one may seriously
doubt whether the above-quoted sentence, and therefore
international law as such, has any normative character.3"
The basic norm may also be conceived as being of divine
27 See text, page 7 supra.
28 Space forbids to discuss the relation between the validity of either
a norm as such or a legal system and its efficiency. See KExsEN, GENERAL
TI-oRY OF LAW AND STATE 41-42, 118-22.
29 Id. at 386-88.
30 Id. at 369.
31 Cf. my review of Kelsen's book, 41 ILL. L. REV. 145, 149 (1946).
1956) LEGAL POSITIVISM

origin. Many law givers, ever since Hammurabi and Moses,

have so claimed and the pure theory of law, with its basic
norm theory, furnishes no logical weapon against such an
assumption.32 It would be going too far, however, to say
that indeed a system of natural law could be deduced from
the basic norm hypothesis with equal logical force as a
positivist, natural-law denying system. 3 The system of
legal hierarchy, outlined above, destroys any such idea.
For even if the divine law giver promulgates certain
commands, the law appliers at the lower level of the
hierarchy are not - at least not generally - claimed to be
divine.3 Thus, assuming the command, "Thou shalt not
kill," to be a divine one (and arguendo equating divine
with natural law) ," this merely means that a very general
divine norm must be concretized by human beings, after
their own fashion, to answer such problems as whether,
and to what extent, self-defense shall be an excuse to kill;
whether one may, or should, kill the enemy in battle;
whether criminals, and if so which kind, should be killed,
and so on. The biblical commandment perhaps might claim
universality; but without concrete application it remains an
empty shell, and the concretization has vastly differed in
every civilization.3"
The phenomenon of law-applying brings us to the age-
32 FULLER, AiEricAN LEGAL PHImosopny AT Mm-CEwTURy, 6 J. LEG. ED.
457, 461 (1954).
33 Ibid.
34 The Church, for instance, has always carefully stressed the fact that
- apart from the Holy Father-her law appliers, judges, tribunals, etc.,
are fallible human beings. Cf. The tactful and searching study of SANTILL-
ANA, THE CRuE OF GALILEO (1955), in part devoted to just this point- that
it was not "the Church", that condemned Galileo Galilei, but only organs
of the Church which did so.
35 Not all divine law is necessarily conceived as natural law. CoDEX
Iums CANoNicI, can. 27, § 1, distinguishes between natural and positive
divine law.
36 Cf. PAnRnE, Natural Law and Kelsenism, 13 OMO ST. L. J. 160, 162-65
(1952).
 NOTRE DAME LAWYER [Vol. XXXII

old dispute as to the position of judges. Do they "find,"

"make," or "apply" the law? To the positivist, the first
answer is of course inadmissible. To "find" law in the sense
that it is already here but need only be ascertained (from
"self-evident" or other natural-legal sources, or from
Savigny's Volksgeist) by judges37 somehow better en-
dowed to do so than other mortals is contrary to positivism
as defined in our first sentence. But as to the other proposi-
tions, the only logically correct answer can be gleaned
from our hierarchy theory: a judge, like any other law
applier, such as a legislator under the constitution or an
administrative agency under a statute, both applies and
makes law. He applies the higher norm, for instance a
statute declaring negligent homicide to be a tort or criminal
offense, by making a command - and hence a new,
concrete norm - that the defendant shall pay the plaintiff
a certain sum of money, or by directing the sheriff to con-
fine the accused in a jail. The law which the judge thus
applies by making new law on a lower level may be the
constitution or a simple statute. But in the Anglo-American
legal system, the applicable higher norm may also be
"precedential" law, that is, it may be based on the opinions
of judges in previous similar cases.
The existence of this judge-"made" law constitutes no
exception to or deviation from our rule that judges make
law by applying law. A judge who lays down a new rule of
law, does so because - and only insofar as - the legal
system of his jurisdiction so authorizes him.3"
A judge who
must decide a lawsuit based on a cause of action not
grounded in existing statutory or precedential law - let
us say, on a claim of absolute liability for the handling of
explosives in a state where there has never been a decision
on this point - may dismiss the action for failure to state
a claim upon which relief can be granted, because the legal
37 Or, according to Savigny, by law professors.
38 This may be done either expressly, as in Swiss CIVM CODE art. 1, or
by customary law.
1956) LEGAL POSITIVISM

order contains no norm in the plaintiff's favor. In so doing,

he might briefly rule that the "doctrine of absolute liability
has never been adopted in this state." On the other hand,
he may exercise his authority to create a new rule of law
and decide in the plaintiff's favor.3 9 In this case, too, the
judge applies law - the rule of law that authorizes judges
to create a new rule of law if the existing law is found to
be unsatisfactory or unreasonable according to the judge's
opinion.
The edifice of legal positivism, as all too briefly sketched
in this article, has been criticized on a variety of grounds,
most of which concern themselves with this or that phase
of the pure theory of law. It is not necessary to discuss
them here.4" Two attacks, however, appear to go to the
heart of positivism and deserve a moment's attention.
The first propounds that the pure theory of. law is too much
what it says: an abstract, purely logical theory "devoid of
real life." But this argument is no more valid than it would
be against mathematics, which deals with abstract numbers
and bodies instead of concrete things, such as apples or
bombs. Moreover, it is not accurate to say that, "The
analytical lawyer is a positivist. He is not concerned with
ideals; he takes the law as a given matter created by the
State, whose authority he does not question."'" His system
of legal theory is, indeed, not concerned with ideals; but
he, the positivist lawyer himself, is very much concerned
with ideals. Although he does not question the authority of
the state, he nevertheless questions the desirability and
wisdom of its laws, which he, the positivist, like any other
human being, may seek to alter, by legal means or even by
revolution. Hans Kelsen himself has been a most outstand-
39 The analogous situation will of course arise where the judge for the
first time has to rule concerning a defense, e.g., of the defendant's charitable
immunity. He may either reject the defense as not grounded in (existing)
law or he may grant it and thus exercise his legal authority to make new
rules of law. It is up to the judge's political choice to follow either path.
40 See FumR A-I, LEGAL THEoRY 112-29, 163-65 (3d ed. 1953).

41 Id. at 163. See also the quotation from Kelsen, note 20 supra.
 NOTRE DAME LAWYER ('Vol. XXXII

ing example of a jurist concerned with ideals of peace and

justice.2 Nor of course would any reasonable positivist
deny that a lawyer's education, in law school or elsewhere,
should concern itself with "ideals," in other words, with
politics, political science, and ethics. However, he thinks
that political postulates should not be presented in the
guise of law.
The second contention is similar but it goes more
directly to the moral side of positivism. In divorcing law
from ethics, religion and morality, the argument runs that
the positivist is actually fostering amorality by treating
on an equal level the legal system of, say, the United States
or Switzerland with that of Dictator Franco or the Soviet
Union. But it is true that Spanish fascist law is law, as was
that of Hitler. It is up to man to change the law with a
forthright attitude by recognizing it as law that can be
altered - not by lulling oneself into believing that it is
non-law!
Furthermore, the positivist is essentially a relativist and
therefore humble. He does not have the knowledge, which
the protagonist of natural law ideas belives to have, that
this or that system of law and government is inherently
better than any other. Rather he tolerantly believes that
there does not exist, or is at any rate not within human
cognition, a system of law that conforms to the absolute
good. And as long as men will be different from another,
in preference over the "happy antheap" (as Dostoyevski
sarcastically termed the totalitarian society of the possible
future), there will be no law in any given state that
pleases everybody. The second-best solution 2 must there-
fore suffice: law that pleases the majority. That is the
political postulate of democracy.
Reginald Parker*
42 Of his many political-scientific writings that could be listed here, see
especially,KELSEN, PEAcE Tumouo, LAw (1944); KELsEN, Foundations of
Democracy, 66 ETHics 1-101 (1955).
43 Or third-best, if we could list the absolutely good legal order as the
most highly desirable one rather than, as we have done, as a transcendental
and unattainable ideal.
* Professor of Law, Willamette University.