Running head: LEGAL POSITIVISM 1

Legal Positivism

Student’s Name

Institutional Affiliation
LEGAL POSITIVISM 2

Legal Positivism

Legal positivism is a philosophical approach to understanding the nature of law using

contention that laws are human commands which have no fundamental connections with

morality. Legal positivism is a philosophical spectrum that can best be summed up using its

underlying theses. First, social facts define the content and existence of law. These facts include

but are not limited to human behavior as well as intentions behind actions. Second, law and

morality have no connection since morality is not a requirement of establishing legal statutes. As

such legal positivism does not focus on the merits and demerits to decide whether or not to

justify the existence of a given law. Therefore, according to legal positivism, a law doesn't need

to live up to the values and ideals of democracy, justice, or morality.

Hart (1958) argued that legal systems combine two sets of rules; obligation-imposing

rules and power-conferring social rules. These are the primary and secondary rules of law. The

obligation-imposing rules are seen as guidelines to inform individuals on their legal obligations.

These guidelines will also have consequences of disobedience or obedience. Criminal laws are

examples of obligation-imposing laws since they forbid individuals from engaging in certain

conducts and indicate penalties for each violation. On the other hand, power-conferring rules are

legal statutes that provide the criteria of legal validity and recognition. A good example of

secondary rules is the laws that give the parliament the mandate to enact laws.

The concepts of legal positivism are seen to contradict those of natural law. Legal

philosophy sees legal positivism as an opposition to the classical theory of natural law. While

legal positivism rules out any connection between morality and law, natural law theory blends in

moral and legal theories due to their logical interdependence. Therefore, legal positivism

contrasts natural law since it overlooks moral standards that govern human behavior.
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In the mid-1940s, there were legal issues in the German judicial system which involved

the state, a German soldier, and his wife. The wife to the soldier overheard the soldier making

insulting and demeaning remarks on Hitler. During that period, there was a legal statute passed

in 1934, the Heimtückegesetz, which made it illegal to make such comments. The wife reported

the husband despite having no legal duty to report him. The soldier was sentenced to death after

he was tried and convicted. The wife later admitted that her action was a plot to get rid of the

husband since she had an affair. She was arrested and charged with unlawful deprivation of

liberty. She was found guilty and convicted for a long period. She made an appeal based on the

argument that her action to report her husband conformed to a then valid statute. The court

acknowledges her arguments but upheld the convictions since the 1934 statute contradicted to

morals and sound conscience of all people. This is a contentious ruling.

The ruling delivered by the West German court of appeal argued on the basis that law

derives its authority from moral merit. During the ruling, the court is seen to agree that the

actions of the soldier's wife were legal, but they were not right according to the moral standards

of any human society. There are various issues of contention in this ruling. The wife reported the

soldier for making insulting crimes towards Hitler. By so doing, he was exercising his freedom

of expression. However, the law deprived people of this fundamental right. This is the first issue

of discussion. Second, the wife identified an opportunity to get rid of his husband. She decided to

report him despite the lack of any legal obligation. Third, she is convicted of unlawful

deprivation of liberty. Forth, the court of appeal agrees that actions were legal back then but are

not by any means right under the sense of human justice. The principles of legal positivism can

be used to discuss the four issues identified above. These principles are vaguely discussed in the

first part of this paper.

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The first issue, in this case, was the legality of the 1934 statute, which made it a legal

crime to make insulting comments about Hitler. Under the democratic ideals and values of the

free world, humans are accorded unalienable rights, which give people the liberty to express

themselves. Nonetheless, the 1934 statute denies people this right. The natural law theory will

discard the authority of such laws since it defies the moral standards of human societies. Simply,

it is not right, or rather it is immoral. Scholars who subscribe to legal positivism will recognize

the validity of the law that comes from authority sources and is enforced by accepted procedures

(Tuori, 2017). Therefore, the legal positivism theory would identify the 1934 statute as a valid

obligation-imposing rule which will compel individuals to refrain from making insulting remarks

aimed at Hitler. The 1934 statute also checks all three system rules identified by Hart.

Hart (1958) identifies a valid law as a rule of recognition where there are systems that

give the authority of the statutes. Second, the rule of change, which stipulates methods to modify

the validity of the law. Third, and perhaps the most important system rule, the rule of

adjudication where there are legal mechanisms to determine if the rule has been violated. The

statute fulfills these system rules and would, therefore, be identified as a valid law under legal

positivism. On the other hand, Moore (2002) would discredit the validity of such a law since

under legal realism the statute fulfills the functional kind. Still, it does not fulfill on the moral

kind, and more importantly, it is not approved by most of the people it affects denying it the

conventional acceptance criteria.

The second issue of discussion is based on the wife’s actions to report the husband.

Under legal positivism, having the legal right is not equivalent to moral right and vice versa.

Therefore, the legal authority to act on a valid law does not entail any moral obligations to act.
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Legal positivism theory would not see any fault in the actions of the wife. She noticed a violation

of a valid law and decided to report the case despite having moral obligations to the husband.

Finally, the third and the fourth issue revolve on the decisions by the court to convict the

soldier's wife and uphold the convictions. The rulings are made based on the crime of unlawful

deprivation of liberty. The law sees the action by the woman to report the husband as a plot to

use a law, which contradicts the sense of justice of all decent human beings, to get rid of her

husband. Therefore, her actions are viewed as a form of moral injustice to the husband that

deprived the soldier of his liberty – the right to life. However, legal positivism would disagree

with the decisions since they interpret the truths of the law in terms of morality and natural

human behavior. In this instance, Hart (1958) would see legal rules as an obligation and the

standard to justify human behavior, which is accompanied by a punishment of deviations.

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References

Hart, H. L. A. Positivism and the Separation of Law and Morals”(1958) 71. Harvard Law Review, 71, 593.

Moore, M. S. (2002). Legal reality: A naturalist approach to legal ontology. Law and Philosophy, 21(6),

619-705.

Tuori, K. (2017). Critical legal positivism. Routledge.