# Development of legal positivism
This essay will explain the development of legal positivism, one of the most significant schools of thought in legal philosophy. It will begin by outlining the core ideas of the theory, particularly the separation of law and morality. The main focus will be on tracing its evolution from the ‘classical’ command theory of law, most associated with John Austin, to the more sophisticated modern version developed by H.L.A. Hart. This essay will argue that legal positivism developed from a simple model based on commands and obedience into a more nuanced theory centred on a system of rules. This progression was necessary to provide a more accurate and comprehensive account of what a legal system is and how it functions.
## The Command Theory of Law
The origins of legal positivism as a distinct theory are often traced to the works of Jeremy Bentham and, more influentially, John Austin. These thinkers sought to establish a scientific and descriptive theory of law, separate from moral evaluation. Bentham made a crucial distinction between ‘expositorial jurisprudence’ (analysing what the law *is*) and ‘censorial jurisprudence’ (discussing what the law *ought to be*) (Bentham, 1789). This laid the groundwork for the core positivist idea: the separation thesis, which states that the validity of a law is a separate question from its moral merit.
It was John Austin, in *The Province of Jurisprudence Determined*, who provided the first systematic and famous formulation of legal positivism. His theory is known as the ‘command theory of law’. For Austin, a law is a command issued by a sovereign and backed by a sanction or the threat of harm (Austin, 1832). This definition has three key components:
1. **Sovereign:** The sovereign is a person or body who is habitually obeyed by the majority of a society but who does not habitually obey any superior. In the UK context, Austin might have identified the ‘Queen in Parliament’ as the sovereign.
2. **Command:** A command is an expression of a wish or desire, distinguished by the power and purpose of the person commanding to inflict an evil or pain in case the desire be disregarded.
3. **Sanction:** The threat of punishment for non-compliance is what makes a command a law and what creates the obligation to obey it.
Austin’s model is straightforward and provides a clear test for what counts as law in a given society: find the sovereign and identify their commands. This approach strictly separates law from morality. A law is valid if it has been commanded by the sovereign, regardless of whether it is a just or fair law. As Austin famously put it, “The existence of law is one thing; its merit or demerit is another” (Austin, 1832).
However, later theorists found Austin’s command theory to be an overly simplistic model. For example, it struggles to account for laws that do not impose duties but rather grant powers, such as the law of contract or the rules for making a valid will. These laws are not easily framed as ‘commands backed by threats’. Furthermore, the theory has difficulty explaining the continuity of law when one sovereign is replaced by another. If law is just the habit of obedience to a specific person, then when that person dies or is removed, their laws should logically cease to be valid until the new sovereign is established and a new habit of obedience is formed. This does not reflect how real legal systems work, where laws remain in force through changes in government.
## A New Concept of Law
The most significant development in legal positivism came with the work of H.L.A. Hart in the mid-20th century. In his seminal book, *The Concept of Law*, Hart sought to develop a new version of positivism that could overcome the limitations of Austin’s theory. He described Austin’s model as a set of ‘orders backed by threats’ and used the famous analogy of a gunman demanding money to show its inadequacy (Hart, 2012). While both the gunman and the state demand compliance, a legal system involves a sense of obligation that is different from simply being forced or coerced.
Hart’s central insight was to propose that law is better understood not as commands, but as a system comprising two different types of rules: primary rules and secondary rules.
* **Primary Rules** are the rules that impose duties or obligations on individuals. These are the basic rules of conduct in a society, such as the criminal law (e.g., do not steal, do not murder) or the law of tort. A society with only primary rules would suffer from several defects: uncertainty about what the rules are, the static nature of the rules, and inefficiency in resolving disputes (Hart, 2012).
* **Secondary Rules** are rules about the primary rules. They confer powers and are introduced to remedy the defects of a simple regime of primary rules. Hart identified three types of secondary rules:
1. **The Rule of Recognition:** This is the most crucial secondary rule. It is a rule that specifies the criteria for identifying valid law within the legal system. For example, in the UK, the Rule of Recognition would include the principle that whatever the Queen in Parliament enacts is law. It provides a means for determining which rules are part of the legal system and which are not, thus curing the problem of uncertainty. This single rule replaces Austin’s complex and problematic concept of the ‘sovereign’.
2. **Rules of Change:** These rules facilitate the creation, alteration, and abolition of primary rules, remedying the static nature of a simple system. They specify the procedures for legislation and other law-making processes.
3. **Rules of Adjudication:** These rules confer power on individuals, such as judges, to make authoritative determinations about whether a primary rule has been broken. They establish courts and procedures for resolving legal disputes, thus curing the defect of inefficiency.
For Hart, the union of primary and secondary rules is the “heart of a legal system” (Hart, 2012). This model is able to explain power-conferring rules and the seamless continuity of legal systems, thus solving the major problems in Austin’s theory. Hart also introduced the idea of the ‘internal aspect’ of rules, referring to the attitude of those within the system, particularly officials, who accept the Rule of Recognition as a common standard for guiding and evaluating their own conduct and that of others. This is different from Austin’s notion of a ‘habit of obedience,’ as it involves a critical and reflective acceptance of the rules as a source of obligation.
## The Continuing Debate
Hart’s theory significantly advanced legal positivism, but it did not end the philosophical debate about the nature of law. His work prompted a new wave of discussion and criticism. The most famous critic was Ronald Dworkin, who argued that law consists not only of rules but also of principles, which have a moral dimension. Dworkin claimed that when judges decide hard cases where the rules are unclear, they rely on these moral principles, which blurs the sharp distinction between law and morality that positivists insist upon (Wacks, 2020).
This critique led to a split within legal positivism itself. On one side are the ‘soft’ or ‘inclusive’ positivists, like Hart, who accept that a society’s Rule of Recognition might, as a contingent matter, include moral criteria for identifying valid law. On the other side are ‘hard’ or ‘exclusive’ positivists, most notably Joseph Raz, who argue that the validity of law can *never* depend on its moral content. For them, the function of law is to provide clear guidance, which it could not do if one had to engage in moral reasoning to discover what the law is (Bix, 2012).
## Conclusion
In conclusion, the development of legal positivism demonstrates a clear progression from a simple but flawed model to a more complex and durable theory. The classical positivism of John Austin, based on the idea of a command from a sovereign, provided a powerful starting point by asserting the separation of law and morality. However, its limitations in explaining key features of a modern legal system meant that it was ultimately an incomplete account. The work of H.L.A. Hart represented a major evolution, replacing the idea of a sovereign with the concept of a Rule of Recognition and framing law as a union of primary and secondary rules. This more sophisticated model provided a better explanation for the continuity of law and the existence of power-conferring rules, while still maintaining the core positivist thesis. Although Hart’s theory has itself faced significant challenges, its development from the earlier command theory shows how legal philosophy evolves to create more accurate and comprehensive descriptions of the nature of law.
## References
- Austin, J. (1832) The Province of Jurisprudence Determined. John Murray.
- Bentham, J. (1789) An Introduction to the Principles of Morals and Legislation. T. Payne and Son.
- Bix, B.H. (2012) Jurisprudence: Theory and Context. 6th edn. Sweet & Maxwell.
- Hart, H.L.A. (2012) The Concept of Law. 3rd edn. Oxford University Press.
- Wacks, R. (2020) Understanding Jurisprudence: An Introduction to Legal Theory. 6th edn. Oxford University Press.
