Positivism

Annotated Bibliography: Positivism
Bhandari, S. (2014). Legitimacy, Authority, and Validity of Law: An Integrated Approach to
Legal Positivism and the Methodology of Welfare-Grundnorm. Available at SSRN 2550108.
Bhandari (2014) examines the theoretical inconsistencies associated with legal positivism. Legal positivism is based on three key elements, namely legitimacy, enforceability, and validity. Legitimacy entails the creation and enforcement of laws endeavored to encourage all the good actions in society and discourage all the bad actions in society. Enforceability entails the implementation of laws whereby a society should have persons enacted with the responsibility to enact laws. Broadly, laws can be enacted through external enforcing or self-policing. External enforcing entails relying on police officers to enforce laws while self-policing entails members of society acting in the right manner without being supervised. Validity entails the ability of the rule of law to withstand the test of time. However, legal positivism is faced with not only inflexibility but also inconsistency. Despite society constantly changing, laws take a considerable time before they change. Inconsistency entails laws not being enforced with the same vigilance to all members of society.
Leiter, B. (2015). Marx, Law, Ideology, Legal Positivism. Virginia Law Review, 101.
Leiter (2015) explores Marxist ideologies in light of legal positivism. Marxist theory is founded on three tenets. The first tenet of development is the extent to which the factors of production are developed.

The second tenet is the production relations. The third tenet is the ideological organization of the society. The development of factors of production entails the capacity of the actors in an economy to produce goods and services. Factors of production are held to increase their productive power overtime. Advancement in technology leads to the development of capital while labor naturally grows stronger and taller. The relations of production entail property rights assigned to the actors in an economy towards the production of products. In a capitalist society, the working class is exploited whereby there are forced to provide labor at minimum wage.
The ideological organization entails the social, economic, and political climate prevailing in an economy. They are responsible for the stabilization of production in an economy. Legal positivism plays a critical role in the regulation of interaction among actors in an economy. In a capitalist economy, the upper class has been observed to extort the working class. However, it is the former who mandated with the creation and enactment of laws. This presents a quagmire in legal positivism whereby the very custodians of the law are the ones who oppress the greater majority of members of society.
Neill, E. (2013). Varieties of Positivism in Western European Political Thought, c. 1945–1970:
An Introduction. History of European Ideas, 39(1), 1-18.
Neill (2013) analyzes the political climate in three Western Europe countries, namely Britain, France, Germany, Italy and Sweden. The political climate in these countries is analyzed in the wake of the proliferation of legal positivism. Despite the countries under investigation exhibiting mixed results, a common feature is evident across all the countries – political activity exacerbated during this period. These countries under investigation had just come from the WWII. Political theorists in Britain took a subtle approach whereby a majority of them were in academia. Conversely, the political theorists took a proactive approach leading to the enactment of significant laws in Western Germany. Although political theorists in Sweden are technocrats in nature, laws enacted based on legal positivism were subjected to vast political debates. In France, political theorists took an even subtle approach than Britain towards influencing legal positivism. Political theorists in France were mainly in the academic realm as opposed to taking part in the political realm. Lastly, Italy exhibited a high degree of the involvement of political theorists in legal positivism despite the country exhibiting a skewed political system. It is evident that although the WWII had a varied influence on the political climate among the investigated countries, political theories significantly contributed to the growth of legal positivism.
Pino, G. (2014). Positivism, legal validity, and the separation of law and morals. Ratio Juris,
27(2), 190-217.
Pino (2014) evaluates three core aspects relating to legal positivism, namely standard positivism, Post-Hartian positivism, and separability thesis. Standard positivism maintains that law itself is not guaranteed moral respect but rather the rule of law should be open to being moral criticism. The notion of standard positivism prevailed in Europe during the mid-eighteenth century. Post-Hartian positivism took effect from the 1970s onwards. Post-Hartian positivism moves away from the distinction of positivism and non-positivism based on separability thesis. The thesis of separability entails the separation of law and morality based on contingency. Legal positivism still attracts the attention of standard positivists. A fraction of positivists attaches theoretical evidence about the law a morality. However, the significant number of positivists are concerned with analyzing separability thesis in the original manner in which it appeared as opposed to analyzing it in light of legal positivism.
Plunkett, D. (2013). Legal Positivism and the Moral Aim Thesis. Oxford Journal of Legal
Studies, gqt009.
Plunkett (2013) criticizes the thesis of Scott Shapiro on Moral Aim. Shapiro argues that indeed it is imperative that the law has a moral facet. Plunkett reiterates that ideally there should be a moral facet to law. However, the moral facet poses challenges in its implementation phase thus should be rejected by legal positivists. In this light, Plunkett highlights the problems associated with enacting laws that exhibit a moral aim. Plunkett also gives an alternative to the enactment of laws that exhibit a moral aim. The moral aim of law encompasses laws that provide good solutions to pertinent social problems that otherwise cannot be handled through other formal ways. Enacting laws with a moral aim is faced with two problems. Firstly, legal positivism and moral aim are incompatible. Legal positivism is defined as the enactment of laws solely based on scientific evidence as opposed to moral concerns. Secondly, laws are merely instruments thus can be used to perpetuate either good or bad. Plunkett offers a solution to these challenges whereby Plunkett argues for that law should be represented as moral instead of enacting laws with a moral aim.
Pojanowski, J. A. (2015). Redrawing the Dividing Lines between Natural Law and Positivism
(s). Va. L. Rev., 101, 1023.
In this discourse, Pojanowski (2015) draws the thin line distinguishing natural law from positivism. Natural law concerns itself with administering justice to members of society regardless of whether the conventional means of implementing justice are tested and proven. On the other hand, positivism also champions for the administration of justice to members of society but only through tested and proven ways. Pojanowski associates natural law with natural lawyers (theology sycophants) while positivism is attributed to classical positivists.
In the 1800s, when positivism was unleashed, society was believed to have evolved through two stages and was headed to a third stage. The first stage was theological in nature while the second stage was metaphysical in nature. The third stage was envisioned to be scientific in nature. The theological stage entails the society developing laws based on superstitious beliefs. The metaphysical stage entailed placing more emphasis on the legal and political systems of society as society embraced science. The scientific stage entailed developing laws that govern society on logic as well as scientific procedures.
Priel, D. (2015). Toward Classical Legal Positivism. Va. L. Rev., 101, 987.
Hart relies on two concepts, namely Utilitarianism and linguistic analysis to expound on legal positivism. Utilitarianism entails basing the soundness of laws on the social happiness directly attributable to the laws. Linguistic analysis entails studying varied terms relating to law. Hart felt that studying terms related to law nurtured the understanding of people about law, which Hart likens to studying case laws. However, Hart’s doctrine sharply contrasts with Bentham’s doctrine. The Utilitarianism approach of Bentham is based on observation to analyze law as opposed to linguistic analysis. Bentham likens the study of legal positivism to the natural sciences that heavily rely on observation to reach conclusions. Although Hart argues for linguistic analysis towards analyzing legal positivism, he ridicules law for using ambiguous vocabulary. Ambiguous vocabulary is self-defeating in that it fosters the very confusion it endeavors to eliminate.
Schauer, F. (2015). Path-Dependence of Legal Positivism, The. Va. L. Rev., 101, 957.
Schauer (2015) relies on the concept of intellectual path-dependence to further his core idea – aspects of the legal theory that have become obsolete overtime. Intellectual path-dependence is not a formal process but a social as well as a psychological process. Hypothetically, a concept could have two dimensions to it where one dimension is popular while the other dimension is not popular. The popular dimension tends to attract discussion rendering the other dimension obscure. Similarly, Schaeur has used this concept about legal positivism. Three aspects have become obsolete in relation to legal positivism. Firstly, the aspect of legal reform in light of legal theory. The notion that facts about the law can be used to foster reforms in the realm of law has become obscure. Secondly, the notion that law has to be enforced through coercion has become obsolete. Lastly, the notion concerning the role of judges the judicial making process has become obsolete.
Tutt, A. (2013). The Improbability of Positivism.
Tutt (2013) explores Ronal Dworkin’s paper on the improbability of positivism. Legal positivism entails enacting laws based on scientific evidence as opposed to moral and philosophical concerns. Tutt paper is broadly divided into Part I and Part II. Part I concentrates on rule of recognition while Part II concerns itself with theoretical disagreement. Legal positivism is founded on the rule of recognition. The rule of recognition forms the basis through which other rules are created and interpreted. Primary rules and secondary rules are the core constituents of the rule of recognition. The former inform the social conduct of an individual while the latter entail the means through which primary rules are enacted and enforced. Theoretical disagreement entails the impasse between philosophers not on what the law contends about a given matter, but what the rule of law ought to be pertaining to a given matter.
U. Linderfaik. (2013). Nordicjournai of International Law 82. 369-389
Legal positivism in the context of international law has to be non-derogatory. Sovereign states exhibit freedom to create and enact laws. Thus, laws founded on legal positivism have to be extremely careful not to go against the laws of a sovereign state. This raises the issue of what extent is considered derogatory and the extent that is not considered derogatory. To partly solve this quagmire, all states share a similar policy on certain matters – money laundering, human trafficking (slavery) and terrorism. The laws adopted in the case of the fore mentioned crimes is the one meant for the overall goodwill of the region as opposed to the country in isolation. Therefore, countries should collaborate to ensure the proliferation of legal positivism in an international context. This is the case since laws that constitute legal positivism are tested and appraised based on scientific evidence.

References
Bhandari, S. (2014). Legitimacy, Authority, and Validity of Law: An Integrated Approach to
Legal Positivism and the Methodology of Welfare-Grundnorm. Available at SSRN 2550108.
Leiter, B. (2015). Marx, Law, Ideology, Legal Positivism. Virginia Law Review, 101.
Neill, E. (2013). Varieties of Positivism in Western European Political Thought, c. 1945–1970:
An Introduction. History of European Ideas, 39(1), 1-18.
Pino, G. (2014). Positivism, legal validity, and the separation of law and morals. Ratio Juris,
27(2), 190-217.
Plunkett, D. (2013). Legal Positivism and the Moral Aim Thesis. Oxford Journal of Legal
Studies, gqt009.
Pojanowski, J. A. (2015). Redrawing the Dividing Lines between Natural Law and Positivism
(s). Va. L. Rev., 101, 1023.
Priel, D. (2015). Toward Classical Legal Positivism. Va. L. Rev., 101, 987.
Schauer, F. (2015). Path-Dependence of Legal Positivism, The. Va. L. Rev., 101, 957.
Tutt, A. (2013). The Improbability of Positivism.
U. Linderfaik. (2013). Nordicjournai of International Law 82. 369-389