Legal positivism
This idea was elaborated in the 18th and 19th centuries by legal philosophers such as Jeremy Bentham and John Austin, who argued that a law is valid not because it is intrinsically moral or just, but because it comes from the sovereign, is generally obeyed by the people, and is backed up by sanctions.
In addition to Kelsen, other prominent legal positivists of the 20th century include H. L. A. Hart and Joseph Raz.
In this sense, the term positivism is derived from Latin positus, the past participle of ponere, meaning "to place" or "to put".
Leslie Green summarises the distinction between merit and source: "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.
[4][5] On the bedrock of these two shared assumptions, the two theories differ in their interpretation of how morality might influence law.
[4] However, this is not necessarily the case, but is contingent upon the content of the law and its rule of recognition, which may or may not include moral standards.
Inclusive legal positivism has been embraced or defended by authors such as Jules Coleman, Matthew Kramer, Wil Waluchow, and H. L. A. Hart himself.
[4] Exclusive legal positivism is mainly associated with the name of Joseph Raz and has been advocated by authors such as Brian Leiter, Andrei Marmor and Scott Shapiro.
[11][10][12] Sometimes the term 'positivist' is used in a pejorative sense to condemn a doctrine according to which the law is always clear (legal formalism) and, however unjust, must be strictly enforced by officials and obeyed by subjects (so-called 'ideological positivism').
"[17] The main antecedent of legal positivism is empiricism, the thinkers of which range back as far as Thomas Hobbes, John Locke, George Berkeley, David Hume, and Auguste Comte.
[18] The teachings of the empiricists preceded systemization of a positivist method for problems of comprehension and analysis, which was later represented by legal positivism.
[19] Traditionally, positivist theories of law have been developed by theorists applying the method of conceptual analysis to determine what is 'natural to say'.
[20] This approach assumes that legal concepts, being 'settled by the classificatory machinery of human thought', are 'amenable only to philosophical … reflection'.
[21] Recently, researchers in the emerging field of experimental jurisprudence have challenged this assumption by exploring the relation between law and morality through systematic, psychological investigations of folk legal concepts.
[24] Further, law and its authority are framed as source-based: the validity of a legal norm depends not on its moral value, but on the sources determined by a social community's rules and conventions.
[19] This source-based conception aligns with the logical positivism of Rudolf Carnap, who rejected metaphysical conjecture about the nature of reality beyond observable events.
Thomas Hobbes, in his seminal work Leviathan, offered the first detailed theory of law as based on sovereign power.
[25][26][27] The English jurist and philosopher Jeremy Bentham was arguably the greatest British legal positivist.
In An Introduction to the Principles of Morals and Legislation, Bentham developed a theory of law as the expressed will of a sovereign.
The most famous proponent of Germanic legal positivism is Hans Kelsen,[original research?]
whose thesis of legal positivism is explained by Suri Ratnapala, who writes: The key elements of Kelsen's theory are these.... A norm, unlike a fact, is not about what there is but is about what ought to be done or not done.
