Abstract

Legal positivism is often described as the view that there is no necessary relationship between law and moral values. Such an understanding of positivism, this essay argues, is both unfruitful and far removed from the concerns of the figure most often associated with the origins of the positivist tradition, Thomas Hobbes. For Hobbes, legal positivism represented a decisive break with the intellectual tradition of common law scholarship which could no longer provide a satisfactory account of political authority. Positivism began, therefore, as an explanation of the basis of law’s authority within wider theories of social order: legal rules came to be seen as possessing authority not as the specific outcomes of broader moral precepts, but because they represent definitive, posited solutions to the problems of collective living. Analytical positivism, by contrast, centres upon the possibility of descriptive neutrality: an essential property of law, it is felt, is that ascertainment of its content does not necessarily depend upon moral assessments of the purpose of value of legal rules. Such an understanding, it is contended, is only very indirectly related to the traditional concerns of the legal philosopher, and hence marginal to a rich and detailed view of law’s nature. This essay traces the developments which led to the narrowly analytical view of legal positivism, and argues that positivism is much better understood as a series of peculiarly potent reflections on the rule of law: Hobbes’s answers to the questions of social order and the authority of law are often highly unsatisfactory; but it is his questions, rather than those of the modern positivists, which are most worth asking, and which should drive the legal philosopher