Toward Classical Legal Positivism

This piece below was presented during the Jurisprudence and (Its) History Symposium, held by the Virginia Law Review and the Program in Legal and Constitutional History in September 2014. 

I have two major aims in this Article. First, I hope to set the historical record straight, so I offer an account of Hobbes’s and Bentham’s work that seeks to understand their views on law not by isolating it from the rest of their wide-ranging body of work, but by understanding their jurisprudential work as part of a broader project. The primary aim of this Article, however, is not historical. My main aim is to contribute to contemporary jurisprudential debates and to suggest that the largely neglected approach of earlier positivists is superior to the view held by most contemporary legal positivists. These two aims are not necessarily congruent. There is an obvious sense in which talk of Hobbes or Bentham as legal positivists is a historical anachronism. The debate between legal positivism and natural law, in the form one finds in contemporary jurisprudence textbooks, is a twentieth-century debate that cannot be found in jurisprudential discussions of past centuries. It is not just that the word “positivist” is not found in the works of Hobbes, Bentham, or even Austin; it is that the debate as it is understood today was not one that they were engaged in. Therefore, it is in some sense pointless and in some sense misleading to worry too much over the question whether Hobbes or Bentham were “really” legal positivists or natural lawyers.

The more meaningful question, and the one I wish to engage in, is to what extent it is useful for us to call Hobbes and Bentham “legal positivists.” My answer to this question consists of three interrelated points. The first is that we draw an explicit link between their ideas and the view that (some time later) would come to be known as “positivism,” roughly the view that the methods of the “human sciences” are essentially the same as those of the natural sciences. The second point is that the classical legal positivists’ decisive break with natural law ideas prevalent in their day is to be found exactly here, in their views about metaphysics and nature. The third point is that this aspect of their work has been, in my view regrettably, abandoned by contemporary legal positivists. Though all three points are related, in this Article I will say relatively little about the first point, as I discussed it in greater detail elsewhere.