Philosophy of Society

Philosophy of Law

Legal Positivism and Legal Realism

The theory of natural law, though the oldest and most widely accepted philosophical concept explaining the nature of law, has faced criticism from various thinkers and legal scholars. The antithesis to natural law theory is legal positivism. Positivism is a philosophical movement that emerged in the 19th century, founded by the French thinker Auguste Comte (1798-1857). He believed that only "positive judgments," or those supported by empirical data, are true and valuable for science. Anything that is not validated by experience cannot be part of scientific inquiry. Similarly, in Britain, the philosopher and jurist Jeremy Bentham (1748-1832) laid the groundwork for utilitarianism and shared his reflections on the foundations of law. He asserted that law is the will of the sovereign, not an adaptation of natural law.

British jurist John Austin (1790-1859) combined the ideas of positivism and Bentham and applied them to the legal realm. Using the positivist method, Austin claimed that jurisprudence should operate exclusively with positive judgments. For example, while a jurist can observe the criminal code, the principles of natural law are not observable in experience. Just as a scientist, according to Comte, should reject theories that cannot be empirically verified, so too should a jurist, according to Austin, reject abstract legal principles. Thus, Austin rejected the concept of natural law. This rejection raised a new question: if natural law does not exist, on what basis are human laws established? Echoing Bentham, Austin argued that human laws are based on the will of the sovereign, which could be either a single person (monarchy) or the entire populace (democracy).

The German scholar Karl Bergbohm (1849-1927) further developed Austin's ideas in his 1892 work "Jurisprudence and Philosophy of Law." He argued that jurisprudence is a descriptive science, not a normative one; it should study existing legal systems rather than speculate on what law ought to be. Since natural law is an ideal that positive law seeks to reflect, natural law theory turns jurisprudence into a normative science. Instead of studying ideals, one should study reality—the actual laws that govern society. A central topic of debate within contemporary legal positivism is the relationship between law and morality. Adherents of this perspective have formulated two distinct views on the relationship between law and morality:

• "Soft" positivism, with Herbert Hart (1907-1992) as its most prominent representative: Followers of this approach believe that law can be connected to moral norms, and moral traditions may serve as a foundation for legislation.
• "Hard" positivism, with Joseph Raz (born 1939) as its leading proponent: Adherents of this view maintain that morality cannot serve as a source of laws, and only codified and enacted norms should be considered law.

Legal realism is based on the intellectual legacy of the English philosopher Thomas Hobbes (1588-1679). Hobbes believed that human nature is inherently selfish, and relationships among people are grounded in the principle "homo homini lupus est" (man is a wolf to man). Hobbes described pre-state human relations as a "war of all against all." Such a state of human relations could not satisfy people, as it did not allow for the realization of natural human rights. To end this conflict, people, through a social contract, created a state: they chose a ruler (king) from among themselves and transferred some of their rights to him in exchange for guarantees of protection. In other words, each citizen of the state agreed not to obstruct others from realizing their rights, and in return, received similar guarantees from all others; if someone violated these obligations, the king had the right to use force to punish the offender. According to this understanding, neither natural law (because nothing good can be inherent in a malicious human nature) nor state authority (because it is established by the people) can be considered the source of law.

These ideas were further developed by the American jurist Oliver Wendell Holmes (1841-1935). Holmes's position and that of his followers are known as legal realism. These jurists believe that the subject of legal study should not be what the law ought to be, but rather what it actually is. Natural law is an ideal that law should strive towards, but this ideal is not always achievable in everyday legislation and legal practice. Laws enacted by the state’s legislative authority, which positivists considered the subject of jurisprudence, are, for legal realists, merely norms rather than legal reality. Legal reality is enacted in courts, where judges make decisions by interpreting the law.