A Brief Note on a Comment on a Very Brief Note On Positivism at Law & Society Blog

A Brief Note on a Comment on a Very Brief Note On Positivism

Published by Manfred Gabriel June 30th, 2005 in Jurisprudence

Hanno’s Very Brief Note On Positivism elicited this comment from a reader:

Wouldn’t some positivists avoid a term like “social efficacy”, which sounds like Hart’s approach? Similarly, don’t positivists avoid defining the “necessary” rather than “permissible” content of law? (I.e., positivism allows morals and even “natural law” as content and origin of law, but not as necessarily so.)

Recall that the Alexy triangle consists of three elements, which define the space in which any definition of law can be located:

Social efficacy (soziale Wirksamkeit),
Proper promulgation (ordnungsgem?�?�e Gesetztheit), and
Permissible content (inhaltliche Richtigkeit).

It’s correct that some positivist theories would exclude even social efficacy from the definition of law, and look only to proper promulgation. The issue is whether norms that are not either (usually) obeyed or whose violation isn’t (usually) sanctioned can be considered law. One approach is exclude from law properly-promulgated norms that are neither obeyed nor enforced, which equals a requirement of internal consistency more than anything. The other approach is to let the law itself decide whether norms that aren’t socially effective should be considered law: proper promulgation is the only remaining requirement (here is where I would locate Raz).

The point is though that positivism must at a minimum exclude the criterion of “permissible content.” A concept of law that excludes some properly-promulgated [and socially effective] norms because of their content, is no longer positivism. The statement that “positivism allows morals and even ‘natural law’ as content and origin of law, but not as necessarily so” is putting the cart before the horse, I think: positivism doesn’t rule out morals or natural law as legal content because that would be equivalent to requiring immoral content. The litmus test for telling a natural-lawyer from a positivist is not “what gets in?” but rather, “what stays out?” The positivist’s reply is: Nothing (as long as the law is properly promulgated [and socially effective]). It is the natural lawyer who will reply that some norms stay out. If you will: one drop of natural law (that is, the willingness to exclude even the smallest class of norms based on their content) will spoil a whole barrel of positivism. The German legal philosopher Gustav Radbruch is good example of a positivist who transmogrified into a natural lawyer by stating that unjust rules good be law, but extreme injustice, even if properly promulgated and socially effective, could not be law.

The issue becomes more complicated once you leave the detached (external) perspective of the professor or sociologist and assume the immediate (internal) perspective of the judge. I have written more about this problem, about Radbruch, and the undesirability of positivism elsewhere, using the example of the East German border guards (who were convicted by the courts of unified Germany, after East Germany and the legal order they protected had collapsed).