Legal positivism

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In legal theory and legal philosophy, legal positivism refers to a doctrine that focuses solely on the state-set and state-recognized law for questions of the emergence, enforcement and effectiveness of legal norms . Legal positivism, which reflects on the state as the law- making authority, thus turns against the natural law conceptions that law originates from universally recognized pre-state or even timeless regulations.

The normative legal positivism is based on " codified law" (e.g. Hans Kelsen ), the sociological one on the social effectiveness ( Eugen Ehrlich , HLA Hart ). A necessary connection between law and justice is denied.


In terms of the history of science, the opposite of legal positivism is the doctrine of natural law , which prescriptively subordinates the applicable law to over-positive standards and / or deductively derives it from them ( nature as such, human nature , reason , divine law ), and therefore requires an extra- legal source of knowledge.

The conception of legal positivism also includes the restrictive and corrective legal ethical doctrine of Radbruch's formula , which does not consider “unbearably unjust” norms as valid law even if they are positively set and socially effective. Injustice does not become right because it is legalized by state law - or according to a saying attributed to Bertolt Brecht : "When injustice becomes right, resistance becomes a duty."

In terms of the history of ideas, legal positivism is closely related to legal realism , which has its origins at roughly the same time , particularly in the USA and Scandinavia .

More recent opposites or further developments to legal positivism, which refer to this but do not fall under the classic pair of opposites natural law versus legal positivism , are in particular the systems theory of law (e.g. Niklas Luhmann ) and various discourse theories of law (cf. e.g. Jürgen Habermas ).

In addition to epistemological legal positivism as a scientific theory , the term is usually associated with practical legal positivism (also: legal positivism ): An application of the law can be described as positivistic if it is only based on the given law and is impermeable to non-legal principles. A countercurrent within legal dogmatics is sociological jurisprudence or legal hermeneutics , which asks about the specific social framework conditions of the interpretation of the law.

Legal positivism is a legal theory , not an ethical or moral theory.

As such, legal positivism tries to answer the question: “What is right?” Or “Which norms are right?” However, almost all legal positivists, especially modern theorists who attribute themselves to the analytic tradition, emphasize that these questions are independent of the question whether the law is morally obliged to the citizen . This is emphasized by JL Austin, for example:

“The existence of a legal norm is one thing; their correctness or incorrectness another. Whether it exists or not is a question; whether it corresponds to an underlying ideal is another. An existing law is also law if it does not suit us or if it deviates from the criterion according to which we base our approval or disapproval. "

Norbert Hoerster , a prominent German legal positivist, accuses critics of misunderstanding legal positivism and ascribing theses to him that legal positivists themselves do not represent. In particular, Hoerster claims that legal positivists seldom or never defend the following theses:

  • the legal thesis , according to which right is exhausted in positive laws. But positivists can recognize common law and other sources of law as law, according to Hoerster.
  • the subsumption thesis , according to which legal interpretation is neutral, and judges merely apply higher norms.
  • the relativism thesis , which claims that all ethical standards are subjective and relative. But, Hoerster claims, identifying law with social facts is compatible with recognizing objective moral standards.
  • the obedience thesis , according to which citizens are right to obey.

The concept of positive law

The concept of positive law ( ius positivum ) has stood for “established” law (from the Latin ponere , “set”, positum “set”) since ancient times . Positive law arises from the discretion of a human (in modern times state) legislator and is thus neither legitimized by a reference back to the ius divinum (divine right) nor by a binding to a law that is equally comprehensive and therefore naturally applicable to all people, natural law . After that, law is available without being bound by the minimum content known from natural law. The only thing that is decisive is that the law has been properly established.

In the course of the 19th century, the concept of positive law experienced a revaluation as a fundamental option of the entire justification of law, which was primarily about organizing coexistence according to consensus within the state . The settlements proved to be problematic in the legal discussion of the 20th century when, after the Second World War, judges had to answer for legal rulings from the time of National Socialism and justified their decisions with the positive law. The view reduced to “law is law” leads to follow-up discussions about whether laws are absolutely to be obeyed, which leads back to the problem of the extent to which the maximized separation between law and morality is not undermined.

The concept of “valid” law is not simply linked with that of “positive” - i.e. H. state set - to equate law. That requires that commandments are legally effective, i.e. H. have a reliable chance of organized enforcement (see legal effectiveness ) and that they are legitimate, i. H. justified (see legal validity ). This validity can, for example, also acquire customary law, which can only be represented in artificial form in all legally valid variants as "state law".

Kelsen: dualism of being and ought

In the philosophical and jurisprudential tradition, the distinction between being and ought plays an essential role. David Hume had pointed out that ought sentences cannot be derived from being sentences. Immanuel Kant developed his epistemology in discussion with Hume, making the distinction between theoretical (“speculative”) and practical reason the foundation of his considerations. The neo-Kantian and his followers in jurisprudence, especially Hans Kelsen , joined to Kant and sharpened the contrast between is and ought to continue. They established a dualism of law and morality based on this separation .

According to Kelsen's pure doctrine of law , the sphere of being, i.e. the factual, is to be strictly separated from the sphere of the ought, i.e. the normative . From this separation Kelsen derived the postulate that jurisprudence should deal exclusively with legal norms . He considered the analysis of behavior related to norms to be the subject of sociology . Kelsen wanted to create a closed system of rules based on a basic norm that should be "pure" of all aspects of sociological reality. This premise led Kelsen to the so-called "separation thesis", which understood law and morality as parts of two independent systems. Justice is a partial aspect of morality, i.e. an originally philosophical problem, and therefore not an object of law. Rather, right could be any content that fits into a system of order and is valid through the effectiveness of coercion.

Kelsen tried to solve the problem of legal validity in a methodically reflective way on the basis of value-relativistic premises. The basic norm and the idea of ​​a legal structure, i.e. a hierarchical order between conditional and conditional norms, as Adolf Merkl first formulated it, was intended to ensure the coincidence of normativity and facticity.

The categorical separation of what is and what should be and the goal of a purely descriptive recording of positive legal systems assigns a central role to the distinction between prescriptive legal norms and descriptive legal propositions. This means that a strict distinction is made between setting standards and describing standards. The descriptive, i.e. only descriptive, legal clauses make statements about the prescriptive, i.e. prescriptive legal norms, which in turn are based on concrete acts of will. The dualism of being and ought is also reflected in the distinction between the validity and effectiveness of the legal system and its norms. The validity of a norm is understood to mean its specifically normative character, i.e. its existence in the sphere of what is ought. Effectiveness, on the other hand, is actual efficiency in the world of being. Since the validity of a norm, because it cannot be deduced from the sphere of being, can always only follow from another, higher norm, a regress arises that only ends in the basic norm. However, these standards only apply if they are applied and followed. Effectiveness is therefore a condition of validity, but not validity itself (see legal validity ).

Hard: primary and secondary rules

HLA Hart , one of the most important legal philosophers of the 20th century, further developed the legal positivist doctrine on the basis of and in contrast to Kelsen's pure legal theory. This further development, like Gustav Radbruch's , can be described as legal ethical normativism (see also Radbruch's formula ). Because of its freedom-restricting effect, positive law therefore requires a legal ethical justification if it is to be just law.

Like Kelsen, Hart assumes that there is no logical or necessary connection between law and morality. He thus disputes the natural law thesis of the necessary content-related reference of the law to morality with consequences for validity theory. Unlike Kelsen, however, he said that law and morality do not stand side by side without any mutual influence. Morality has factually influenced the development of legal norms and vice versa, there is a retroactive effect of law on morality.

Hart criticized Kelsen's view that every legal norm is a sanction norm, i.e. based on coercion. This thesis, developed by John Austin in the 19th century, that law consists of orders supported by threats, is known as imperative theory . According to Hart, it is an inadmissible simplification of the interactions between law, coercion and morality to classify norms either as sanction norms or as moral commandments. Certain forms of legal standardization cannot be explained by such a narrowing. Hart ranks among these for example empowering norms, i.e. norms that give the authority to set valid legal acts. The distinction between legal rules that seek to bring about a certain human behavior and therefore sanction the opposite behavior and those that provide legal consequences under certain conditions without intending to change human behavior would also be blurred.

Hart distinguishes between primary and secondary rules in a sharp distinction to the imperative theory. He contrasts the primary norms of behavior with a class of secondary rules that determine how one can conclusively ascertain the primary rules. The secondary rules also determine how primary rules are introduced and abolished, how they are changed and how one conclusively determines the fact that they have been violated.

Major legal positivists

Legal positivism was first systematically developed by the English lawyer and social reformer Jeremy Bentham (1748–1832) in his "Of Laws in General" published posthumously by HLA Hart in 1782. Among Bentham's students, John Austin (1790–1859) won with his Writing The Province of Jurisprudence Determined from 1832 had a special meaning for the spread of legal positivism. The Chilean civil code developed by Andrés Bello and still in force today is considered to be the first codification based on a legal posivitivist view and has had a lasting influence on the law of numerous countries in the Latin American legal system and has broken it from European legal traditions. Important representatives of legal positivism in the 20th century were Hans Kelsen , Georg Jellinek , Félix Somló , Gerhard Anschütz , Richard Thoma , Adolf Julius Merkl , Gustav Radbruch and H. L. A. Hart. The most prominent current representatives include Joseph Raz and Norbert Hoerster .

During the Weimar period , the positivist legal theories in the so-called methodological dispute of the Weimar constitutional law theory were criticized primarily by Hermann Heller , Rudolf Smend , Erich Kaufmann and Carl Schmitt .

Friedrich August von Hayek is also a critic of right-wing positivism . From his point of view, the legal positivism approach with its extremely formal terms causes an identification of the state with the legal system and the abolition of the limits of the legislature's power. This threatens people's freedoms and makes totalitarian regimes like fascism possible. From his point of view, the institutional order of a despotism or an unjust state is not a legal order. Rather, there are generally applicable legal rules that regulate or secure human life independently of a legislature and create sustainable prosperity because they are the result of a spontaneously grown order.


  • Heinrich Rickert : On logical and ethical values , Kant studies 19, 1914.
  • Adolf Merkl: The doctrine of legal force, developed from the legal concept , Leipzig 1923.
  • Adolf Merkl: Prolegomena of a theory of the legal structure . In: Verdross, Alfred (ed.): Society, State and Law. Festschrift dedicated to Hans Kelsen on his 50th birthday , (unchanged reprint of the edition by Julius Springer, Vienna 1931) Frankfurt am Main: Sauer and Auvermann 1967, pp. 252–294.
  • Hans Kelsen: Natural Law Doctrine and Legal Positivism . In: The Viennese school of legal theory, writings by Hans Kelsen, Adolf Merkl, Alfred Verdross , ed. by H. Klecatsky, R. Marcic u. H. Schambeck , Vienna / Salzburg 1968.
  • Hans Kelsen: General theory of norms , ed. by Kurt Ringhofer , Robert Walter , Vienna 1979.
  • Hans Kelsen: Pure legal theory. With an appendix: The Problem of Justice . 2nd edition 1960.
  • Herbert Lionel Adolphus Hart: Law and Morals. 3 essays. From d. English translated and provided with an introduction by Norbert Hoester, Göttingen 1971.
  • Herbert Lionel Adolphus Hart: Positivism and the separation of law and morality , 1957. In: Ders .: Law and Moral , ed. by N. Hoerster, 1971, p. 14 ff.
  • Herbert Lionel Adolphus Hart: The concept of the law. 1973.
  • William Ebenstein: The right-philosophical school of pure legal theory. (1938) 1969.
  • Franz Achermann: The relationship between being and ought as a basic problem of law. Diss. Jur., Zurich 1955.
  • Günter Ellscheid: The problem of being and ought in the philosophy of Immanuel Kant. Publication series Annales Univ. Saraviensis. Legal u. economics Dept. 34 (plus jur. Dissertation Saarbrücken), Cologne / Munich [u. a.] 1968.
  • Carsten Heidemann: The norm as a fact. On Hans Kelsen's theory of norms. Baden-Baden 1997 (also dissertation).
  • Walter Ott: Legal positivism. Critical appreciation based on legal pragmatism. 1976.
  • Rudolf Thienel: Critical Rationalism and Jurisprudence. 1991.
  • Werner Krawietz : Law as a rule system. Wiesbaden 1984.
  • Rüdiger Lautmann: Value and Norm. Analysis of terms for sociology. Phil. Fak., Diss., 1969 (=  Dortmunder Schriften zur Sozialforschung , Vol. 37), Munich 1971.
  • Michael Pawlik: The pure legal theory and the legal theory HLA Harts. A critical comparison. Bonn, Univ., Diss., 1992, Berlin 1993.
  • Robert Walter: Legal Theory and Epistemology versus Pure Legal Doctrine? Vienna 1990.
  • Norbert Hoerster: Defense of legal positivism. 1989.
  • Norbert Hoerster: What is law? 2006, (in particular) pp. 65-78.
  • Gustav Radbruch: Philosophy of Law. Study edition, 1999.
  • Ernst Bloch : Natural Law and Human Dignity. (1985) 2nd edition, Frankfurt am Main 1991.
  • Jürgen Habermas : factuality and validity. 1992.
  • John Rawls : Justice as fairness political and not metaphysical. In: Axel Honneth (Ed.): Kommunitarismus , 1995, pp. 36–67.

Web links

Individual evidence

  1. On the role of God in the development of the idea of ​​a natural law, cf. about Salvador Rus Rufino: Development of Natural Law in the Spanish Enlightenment, in: Diethelm Klippel (Ed.): Natural Law and State. De Gruyter Oldenbourg, Berlin 2006, p. 73: "This law [meaning natural law], which inexorably forces man, must be of divine origin and is recognized by man through reason." In the words of Mayans: "The author of Natural law must have such power that it can write these principles in the heart. God has this power, so God is the creator of natural law. "
  2. Gerald Seibold, Hans Kelsen and legal positivism. BoD, Norderstedt 2008, p. 32.
  3. ^ A b Fabian Wittreck : Natural law and the justification of human rights . In: Margit Wasmaier-Sailer, Matthias Hoesch (ed.): The justification of human rights. Controversies in the area of ​​tension between positive law, natural law and the law of reason , Perspektiven der Ethik 11, Mohr Siebeck 2017, ISBN 978-3-16-154057-8 , pp. 46–48 (47).
  4. ^ John Austin, The Providence of Jurisprudence Determined , Weidenfeld and Nicolson, Library of Ideas, London 1954, p. 184.
  5. Summary in Walter Ott: The legal positivism. Critical appreciation based on legal pragmatism. Berlin 1976 (= legal positivism), p. 98 ff .; Horst Dreier : Natural Law and Right Positivism. General judgments, prejudices, false judgments, p. 137 ff. Online
  6. What is meant is the triad: responsibility – procedure – form; see. Fabian Wittreck: Natural law and the justification of human rights . In: Margit Wasmaier-Sailer, Matthias Hoesch (ed.): The justification of human rights. Controversies in the area of ​​tension between positive law, natural law and the law of reason , Perspektiven der Ethik 11, Mohr Siebeck 2017, p. 46.
  7. Fabian Wittreck: National Socialist Legal Doctrine and Natural Law - Affinität und Aversion , Tübingen 2008, pp. 1 ff. (With further references).
  8. HLA Hart, Bentham's Of Laws in General , in: ders., Essays on Bentham. Studies in Jurisprudence and Political Theory , Oxford 1982, pp. 105-126.
  9. ^ Friedrich August Hayek: The constitution of freedom. Mohr, Tübingen 1971, p. 322 ff.