A Very Brief Note on Positivism
Published by Hanno Kaiser June 11th, 2005 in JurisprudenceRobert Alexy, Professor of Jurisprudence at the University of Kiel, has proposed one of the most useful definitions of positivism. Virtually all definitions of law, that is answers to the question: “What is law?”, rely on a combination of the following three elements:
- Social efficacy (soziale Wirksamkeit),
- Proper promulgation (ordnungsgem?ß?¸e Gesetztheit), and
- Permissible content (inhaltliche Richtigkeit).
Non-positivist positions include the permissible content element, whereas positivist positions do not (separation thesis). Any non-postivist theory can be located within the triangle below.
In contrast, positivist theories move along the line between social efficacy and proper promulgation, as displayed below.
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Hope you will bear w/some layperson’s questions (who didn’t read Alexy). 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.)