What are the principles of legal positivism

Legal positivism

Legal positivism is the term used to describe the doctrine which, in solving legal questions, is based solely on positive law and customary law. On the other hand, there is the doctrine of natural law, which tries to derive law from human nature. Legal positivism thus fundamentally prevents the positive law from being checked against higher legal norms, and in extreme cases leads to a commitment to injustice, such as injustice that became law during the rule of the National Socialists.

Radbruch's formula tries to prevent this by showing a limit for the validity of positive law.

Legal positivism denotes a teaching within legal philosophy or legal theory, which the validity of legal norms solely on their positive setting "codification of codified law"; normative legal positivism, e.g. B. Hans Kelsen and / or their social effectiveness Sociological legal positivism, z. B. Eugen Ehrlich, H. L. A. Hart. This means that a necessary connection between law and justice is denied.

In terms of the history of science, the opposite of legal positivism is the doctrine of natural law, which prescriptively subordinates the applicable law to over-positive standards and / or deductively derives divine law from them.

On the role of God in the development of the concept of a natural right (See, for example, Salvador Rus Rufino, Development of Natural Law in the Spanish Enlightenment, in: Diethelm Klippel, Elisabeth Müller-Luckner, “Natural Law and State”, 2001, p. 73: “This law means natural law, which inexorably forces people , must be of divine origin and is recognized by man through reason. In the words of Mayan: The author of natural law must have such power that he can write these principles in the heart. God has this power, so God is the creator of natural law ”).

Reason. The legal ethical doctrine of Radbruch's formula, which does not regard “unbearably unjust” norms as valid law, even if they are positively set and socially effective, also refers to legal positivism. So injustice does not become right because it is legalized by state law (Gerald Seibold, "Hans Kelsen and legal positivism", 2008, p. 32.) - or according to a well-known saying: “When injustice becomes right, resistance becomes a duty!” More recent contradictions or further developments to legal positivism, which refer to this, but do not fall under the classic pair of opposites "natural law vs. legal positivism", are in particular the system theory of law z. B. Niklas Luhmann and various discourse theories of law Discourse theories of law cf. B. Jürgen Habermas.

In addition to epistemological legal positivism as a scientific theory, the term is usually also associated with practical legal positivism: "legal positivism": An application of the law can be described as positivistic if it is based only on the given law and is impermeable to non-legal principles.

A countercurrent within legal dogmatics is sociological jurisprudence or legal hermeneutics, which asks about the concrete social framework conditions of the interpretation of the law.


Legal positivism is a legal theoretical, not an ethical or moral theory. As such, legal positivism tries to answer the question "what is right?" Or "which norms are law?" Almost all legal positivists, especially modern theorists who attribute themselves to the analytic tradition, however, emphasize that these questions are independent of the question, whether law obliges citizens morally duty. This is emphasized by J. L. Austin, for example: Quote The existence of a legal norm is one thing; their correctness or incorrectness is another.

Whether it exists or not is a question; whether it corresponds to an underlying ideal is another. An existing law is also law if it does not suit us or if it deviates from the criterion according to which we base our approval or disapproval (John Austin, "The Providence of Jurisprudence Determined", Weidenfeld and Nicolson, Library of Ideas, London 1954, p. 184.)

The concept of positive law

The term of the positive right, positive right “ius positivum” has stood for “set” law from the Latin “ponere”, set “positum” since ancient times. The positive law arises at the discretion of a legislator and is therefore neither legitimized by a reference back to the “ius divinum” divine law, nor by a binding to a natural law that is equally comprehensive and therefore naturally applicable to all human beings.

In the course of the 19th century, the concept of positive law experienced a revaluation as a fundamental option of the entire justification of law, which was primarily about organizing coexistence according to consensus in the state. The settlements turned out to be problematic in the legal discussion of the 20th century, when after the Second World War, Second World War, judges had to answer for legal rulings from the time of National Socialism and justified their decisions with the positive law.

The concept of “applicable” law is not simply linked with that of “positive” - i.e. H. state set - to equate law. That requires that commandments are legally effective, i.e. H. have a reliable chance of organized enforcement see legal effectiveness, and that they are legitimate, i. H. are to be justified see legal validity.

This validity can z. B. also obtain customary law, which can only be represented in artificial terms in all legally valid variants as "state law".

Kelsen: dualism of being and ought

In the philosophical and jurisprudential tradition, the distinction between being and ought plays an essential role. David Hume had pointed out that ought sentences cannot be derived from being sentences.

Immanuel Kant developed his epistemology in discussion with Hume, making the distinction between theoretical "speculative" and practical reason the foundation of his considerations. Neo-Kantianism and its followers in jurisprudence, especially Hans Kelsen, followed on from Kant and further sharpened the contrast between what is and what should be. They established a dualism of law and morality based on this separation.

According to Kelsen's Pure Legal Doctrine Pure Legal Doctrine, the sphere of being, i.e. the factual, is to be strictly separated from the sphere of the ought, i.e. the normative legal system normative. From this separation, Kelsen derived the postulate that jurisprudence should deal exclusively with legal norms. He regarded the analysis of behavior related to norms as an object of sociology. Kelsen wanted to create a closed system of rules based on a basic norm that should be "pure" from all aspects of sociological reality.

This premise led Kelsen to the so-called "separation thesis", which understood law and morality as parts of two independent systems. Justice is a partial aspect of morality, i.e. an originally philosophical problem, and therefore not an object of law. Rather, right could be any content that fits into a system of order and is valid through the effectiveness of coercion. Kelsen tried to solve the problem of legal validity in a methodically reflective way on the basis of value-relativistic premises.

The basic norm and the idea of ​​a legal structure, i.e. a hierarchical order between conditional and conditional norms, as Adolf Merkl first formulated it, was intended to ensure the coincidence of normativity and facticity. The categorical separation of what is and what should be and the aim of a purely descriptive recording of positive legal systems assigns a central role to the distinction between prescriptive legal norms and descriptive legal propositions. This means that a strict distinction is made between setting standards and describing standards. The descriptive, i.e. only descriptive, legal clauses make statements about the prescriptive, i.e. prescriptive legal norms, which in turn are based on concrete acts of will.

The dualism of being and ought is also reflected in the distinction between the validity and effectiveness of the legal system and its norms. The validity of a norm is understood to mean its specifically normative character, that is, its existence in the sphere of what is ought. Effectiveness, on the other hand, is actual efficiency in the world of being. Since the validity of a norm, because it cannot be deduced from the sphere of being, can only ever follow from another, higher norm, a regress arises that only ends in the basic norm. However, these standards only apply if they are applied and followed. Effectiveness is therefore a condition of validity, but not validity itself.


  • Heinrich Rickert Philosopher Heinrich Rickert: ”On logical and ethical validities”, Kant studies 19, 1914.
  • Adolf Merkl: "The doctrine of legal force, developed from the legal concept", Leipzig 1923.
  • Adolf Merkl: ”Prolegomena of a theory of legal levels”. In: Verdross, Alfred Hg: ”Society, State and Law. Festschrift dedicated to Hans Kelsen on his 50th birthday ”, unaltered reprint of the edition by Julius Springer, Vienna 1931 Frankfurt am Main: Sauer and Auvermann 1967, pp. 252–294.
  • Hans Kelsen: "Natural law theory and legal positivism". In: ”The Viennese legal theory school, writings by Hans Kelsen, Adolf Merkl, Alfred Verdross”, ed. by H. Klecatsky, R. Marcic and Herbert Schambeck, Vienna / Salzburg 1968.
  • Hans Kelsen: ”General Theory of Norms”, ed. by Kurt Ringhofer, Robert Walter, Vienna 1979.
  • Hans Kelsen: ”Pure legal theory. With an appendix: The Problem of Justice ”. 2nd edition 1960.
  • Herbert Lionel Adolphus Hart: "Law and Morality." 3 essays. From d. English translated and provided with an introduction by Norbert Hoester, Göttingen 1971.
  • Herbert Lionel Adolphus Hart: "Positivism and the separation of law and morality", 1957. In: Ders .: "Recht und Moral", ed. by N. Hoerster, 1971, p. 14 ff.
  • Herbert Lionel Adolphus Hart: "The Concept of Law." 1973.
  • William Ebenstein: "The School of Legal Philosophy of Pure Legal Doctrine." 1938 1969.
  • Franz Achermann: "The relationship between being and ought as a basic problem of law." Diss. Jur., Zurich 1955.
  • Günter Ellscheid: "The problem of being and ought in the philosophy of Immanuel Kant." Publication series Annales Univ. Saraviensis. Law and economics Dept. 34 plus jur. Dissertation Saarbrücken, Cologne / Munich and others 1968.
  • Carsten Heidemann: ”The norm as a fact. On Hans Kelsen's theory of norms. " Baden-Baden 1997 including dissertation.
  • Walter Ott: “Legal positivism. Critical appreciation based on legal pragmatism. " 1976.
  • Rudolf Thienel: "Critical Rationalism and Jurisprudence." 1991.
  • Werner Krawietz: "Law as a rule system." Wiesbaden 1984.
  • Rüdiger Lautmann: ”Value and norm. Term analysis for sociology. " Phil. Fak., Diss., 1969 Dortmund writings z. Social Research, Vol. 37, Munich 1971.
  • Michael Pawlik: "The pure legal theory and the legal theory H.L.A. Harts. A critical comparison. " Bonn, Univ., Diss., 1992, Berlin 1993.
  • Robert Walter: "Legal theory and epistemology versus pure legal theory?" Vienna 1990.
  • Norbert Hoerster: "Defense of legal positivism." 1989.
  • Norbert Hoerster: "What is law?" 2006, especially pp. 65-78.
  • Gustav Radbruch: "Philosophy of Law." Study edition, 1999.
  • Ernst Bloch: "Natural law and human dignity." 1985 2nd edition, Frankfurt am Main 1991.
  • Jürgen Habermas: "Factuality and Validity." 1992.
  • John Rawls: "Justice as fairness political and not metaphysical." In: Axel Honneth Hrsg: “Kommunitarismus”, 1995, pp. 36–67.

Web links

  • SEP http://plato.stanford.edu/entries/legal-positivism/Leslie Green Philosopher Leslie Green
  • IEP | http: //www.iep.utm.edu/l/legalpos.htm Kenneth Einar Himma
  • Horst Dreier: http://www.hans-kelsen.de/rrrr.pdf ”Reception and role of pure legal theory” PDF; 72 kB
  • Horst Dreier: http://www.hans-kelsen.de/beitraege2.pdf ”Hans Kelsen 1881–1973:“ Jurist of the Century ”?” PDF; 124 kB
  • http://userpage.fu-berlin.de/~roehrigw/ss97/igracki/volltext.html Gustav Radbruch's theory of positivism]
  • H. L. A. Hart: http://www.gellert-online.de/Arbeiten/hart.htm The concept of law "Legal Philosophy in the 20th Century", edited by K. Gellert

Sources & individual references

  • http://de.wikipedia.org/wiki/Rechtspositivismus 03.11.2014

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