The main precursor of right positivism is empiricism, whose thinkers date back to Sextus Empiricus, Thomas Hobbes, John Locke, George Berkeley, David Hume and Auguste Comte. The main idea of empiricism is the assertion that any knowledge of facts must be validated by sensory experience or derived from statements that are clearly derived from sensory data. Moreover, empiricism is opposed to metaphysics; For example, Hume rejected metaphysics as mere speculation that goes beyond what can be learned from sensory experience. [6] The teachings of empiricists preceded the systematization of a positivist method for problems of understanding and analysis, which was later represented by legal positivism. [7] Legal positivism has a long history and a broad influence. It has precursors in ancient political philosophy and is discussed in medieval legal and political thought and the term itself is introduced (see Finnis 1996). However, modern education owes little to these ancestors. Its main roots lie in the political philosophies of Hobbes and Hume, and its first complete elaboration is due to Jeremy Bentham (1748-1832), whose narrative Austin adopted, modified, and popularized. For much of the next century, an amalgam of their views, according to which the law is the command of a sovereign supported by force, dominated English philosophical reflection on the law.
By the mid-twentieth century, however, this narrative had lost its influence among working legal philosophers. His emphasis on legislative institutions had been replaced by an emphasis on law enforcement institutions such as the courts, and his emphasis on the role of coercive power had given way to theories that emphasized the systematic and normative nature of the law. The most important architects of contemporary legal positivism are the Austrian jurist Hans Kelsen (1881-1973) and the two dominant figures of analytic legal philosophy, H.L.A. Hart (1907-92) and Joseph Raz, among whom there are clear lines of influence, but also important opposites. However, the importance of legal positivism is not limited to the philosophy of law. This can be seen throughout social theory, especially in the works of Marx, Weber, and Durkheim, as well as in many lawyers, including American “legal realists” and most contemporary feminist academics. Although they disagree on many other points, these authors all recognize that the law is essentially a matter of social fact. Some of them, although uncomfortable with the label of “legal positivism”, hope to escape it. Their discomfort is sometimes the product of confusion.
Lawyers often misuse the term “positivist” to condemn a formalistic doctrine that the law is always clear and, no matter how useless or erroneous, must be rigorously enforced by officials and followed by subjects. It is doubtful that anyone has ever had this view, but it is in any case false and has nothing to do with legal positivism. Among philosophically educated people, another, more understandable, misunderstanding can be disturbing. Just positivism is sometimes associated here with homonymous but independent teachings of logical positivism (the meaning of a sentence is its way of verifying) or sociological positivism (social phenomena can only be studied by the methods of the natural sciences). Although there are historical connections and similarities in temperament between these ideas, they are essentially different. The view that the existence and content of law ultimately depend on social facts is not based on a particular semantic thesis and is consistent with a number of theories on how to study the social world, including non-naturalistic narratives. To say that the existence of law depends on facts and not on its merits is a thesis on the relationship between laws, facts and merits, not a thesis on individual relationships. Therefore, many traditional moral doctrines of “natural law”—including the belief in a universal and objective morality based on human nature—do not contradict legal positivism. The only influential positivist moral theories are the views that moral norms are only valid if they have a source in divine commandments or social conventions. These theists and relativists apply to morality the restrictions that legal positivists consider to be the law.
Austin`s approach to jurisprudence and the law is reflected in his own work. “The province of jurisdiction shall determine”. The function of jurisprudence with respect to Austin was to find general concepts, principles, and distinctions that were abstract from the positive legal system of the mature and developed legal system of Rome and England. His first task, therefore, was to separate the “positive” law from positive morality and ethics. Positive law, according to Austin, was the law as it is (positus) and not the law as it should be, with which it had nothing to do at all. However, his particular conception of law was essential because he commanded the sovereign. For “any positive law that is placed under the guardianship of its author by a particular sovereign of one or more persons in a state of submission”. According to Austin, “the science of jurisprudence deals with positive law, or laws that are strictly called because they are affected regardless of their goodness or wickedness. Positive law is characterized by four elements of command, punishment, duty and sovereignty. Salmond and Gray further improved it and significantly altered the analytical positivist approach. They differ from Austin in his emphasis on the sovereign as legislator. According to Salmond, the law consists of rules recognized and implemented by the Court.
Gray defines the law, which was established as a rule of conduct by persons acting as judicial organs of the state. This emphasis on the personal factor in law later led to the emergence of the “realist” law school.