Stanley L.

Paulson, Kiel 16 August 2011 The Very Idea of Legal Positivism Sections of the paper: Introduction -inclusive, exclusive legal positivism

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affiondamenta1diitinction:lega1positivismasnatura1ism,1ega1positivismwithout
naturalism Part one: John Austin's legal positivism, and the role played by naturalism -doctrine of sovereignty, and habit -command doctrine, and fear Part Two: the substitution of naturalism for 'positivism writ large' David Hume as naturalist Part Three: legal positivism without naturalism - Hans Kelsen's legal philosophy -the puzzle of normativity I wll .^ -imputatig+jlr Kelsen's legal philosophv LinKS u4frln'a! +qcts" \"ctu*rttt1 -central imputation - 0 s f4fih

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nomological, yielding a nomological normativity thesis

[1.] Sir William Blackstone...says in his 'Commmentaries', that the laws of God are superior in obligation to all other laws...that human laws are of no validity if contrary to them.... !!9y, he may_mean tha! qll hugru.n laws ought to conform to the Divine laws. If this be his meaning, I assent to it without treiitationl. ..gut the meaning olthis passage oi Blackstone, if it has a meaning, seems rather to be this: that no human law which conflicts with the Divine law is obligatory or binding; in other words, that no human law which conflicts with the Divine law is a law.... Now, to say that human laws which conflict with the Divine law are not binding, that is to say, are not laws, is to talk stark nonsense.l [2.] The superior which is styled sovereignty...is distinguished...by the following marks or -1. The bulk of the given society are in a habit of obedience or submission to a determinate and common superior...[and] 2.That certain individual, or that certain body of individuals,is not in a habit of obedience to a determinate human superior.2
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[3.] The term superiority signifies might: the power of affecting others with evil or pain, and of forcing them, throughfear of that evil, to fashion their conduct to one's wishis.3

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[4.] Take any action allow'd to be vicious: Wilful murder, for instance. Examine it in all lights, and see if you can find that matter of fact, or real existence, which you call vice. In which-ever way you take it, you find only certain passions, motives, volitions and thoughts. There is no other matter of fact in the case. The vice entirely escapes you, as long as you consider the object. You never can find it, till you turn your reflexion into your o*n breast, and find a sentiment of disapprobation, which arises in you, towards this action. Here is a
John Austin , The Province of Jurisprudence Determined (firstpubl. 1832), ed. H.L.A. Hart (I ondon: weidenfeld and Nicolson, 1954), Lecture v (at pp. 184-5) (emphasis in original). 2 Austin, Province (n. I ), Lecture VI (at pp. iq:-i.l lempt asis ln originut;. ' Austin, Province (n. 1), Lecture I (at p. 24) (emphasis in original), and see at 16 ('that which is not feared is not apprehended as an evil').
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