The very idea of legal positivism

Abstract

Recent discussions on legal positivism suggests that the controversy surrounding the notion turns on the distinction between inclusive and exclusive legal positivism. One can acquire a broader perspective by opening up the field in order to cover not only inclusive and exclusive legal positivism but also non-positivism. In any case, I want to argue that a far more fundamental distinction within the positivist camp lies elsewhere. The distinction I have in mind is that between legal positivism qua naturalism (J. Austin) and legal positivism without naturalism (H. Kelsen). For reasons institutional in nature, legal positivism has largely been discussed in a vacuum, there is a standing presumption to the effect that there are ties between legal positivism and ‘positivism writ large’ in the greater philosophical tradition –or, as it would be put in present-day philosophical circles, ties between legal positivism and naturalism. My claim is that it is to be sharply distinguished Kelsen posivist interprise from legal positivism qua naturalism, where the separation principle is simply a corollary of naturalism and where there is of course no nomological normativity thesis.