Legal Positivism

Jeremy Bentham by Henry William Pickersgill
Jeremy Bentham by Henry William Pickersgill

    Legal positivism gained new importance at the end of the 18th century when it became increasingly easy to read natural law as at best man-made and arbitrary, at worst as arbitrary and hiding its real premises behind a veil of "a higher truth" given with "nature". The premises of natural law are either logical and in that case part of a game theory or they are metaphysical, beyond human grasp.

    Utilitarians such as Jeremy Bentham (1748-1832, image) pleaded (see his Of Laws in General of 1782 published in 1882 by H.L.A. Hart) for a redefinition of social norms and laws. Bentham and John Stuart Mill, the latter a self declared positivist, pleaded for an organisation of societies that would maximise the common good. John Austin‘s (1790-1859) The Province of Jurisprudence Determined published in 1832 became a milestone in the debate of legal positivism. Prominent 20th-century proponents were Hans Kelsen, Georg Jellinek, Félix Somló, Gerhard Anschütz, Richard Thoma, Adolf Julius Merkl, Gustav Radbruch and H. L. A. Hart. Joseph Raz and Norbert Hoerster are present advocates of legal positivism.


Image source: The Hague, International Criminal Court, Wikimedia Commons