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Unpublished Paper
Towards Classical Legal Positivism
ExpressO (2011)
  • Dan Priel, Osgoode Hall Law School, York University
Abstract

Open almost any textbook or jurisprudence and you will find it beginning with a discussion of natural law and legal positivism. What sets them apart, we are told, is a difference on the conceptual question of the relationship between law and morality. Natural lawyers believe that law or legality are necessarily connected to morality, whereas legal positivists deny that. In this essay I challenge this fundamental understanding of the debate. The difference between legal positivism and natural law has to do with a way inquiries about law should be conducted: natural lawyers seek to understand law by relating it to a broader metaphysical picture or a picture of human nature; legal positivist begin their inquiry with observations at legal practice. Based on this finding I turn to the work of those philosophers nowadays often considered the founders of legal positivism, Thomas Hobbes and Jeremy Bentham. I show that unlike contemporary legal positivists they understood their enterprise in ways much closer to those of the natural lawyers, only that their metaphysical picture was profoundly differently from that of most their natural law contemporaries. This leads to several findings: that early legal positivists were very different from contemporary legal positivists (something that explains why their positivists credentials are questioned these days); that contemporary jurisprudential debate between legal positivists and natural lawyers involves, to a great extent, two groups talking past each other; and that contemporary legal positivism is a philosophically uninteresting enterprise. I conclude by suggesting that it is the metaphysical version of legal positivism that is more interesting than contemporary legal positivism and that it is this version of legal positivism that is worth pursuing.

Keywords
  • jurisprudence,
  • legal positivism,
  • natural law,
  • naturalistic jurisprudence
Disciplines
Publication Date
September 8, 2011
Citation Information
Dan Priel. "Towards Classical Legal Positivism" ExpressO (2011)
Available at: http://works.bepress.com/dan_priel/2/