Legal positivism: foundational concepts and theories

Law Theory

Legal Positivism

My recent trip to Pango-Pango, a remote island, was literally a treasure hunt in terms of the law. Admittedly, my first reaction upon finding human beings living on Pango-Pango was that there would be no semblance of an organized society, let alone any legal conventions, but I was mistaken.

The task that I faced in regard to my expedition, as I understood it, was to travel to the island, determine if there were people living on the island, and to find out what types of rules existed among the people to maintain order and protect individuals from the improper conduct of others. With this understanding in mind, I observed the people with a totally open mind, and soon discovered several elements in place among these people that gave every indication of legal positivism, because of the specific aspects of the people of Pango-Pango which matched those of positivism itself.

First, I observed that the people of the island all deferred to one of the oldest men on the island; his clothing was more elaborate than that of the others, and he was the one who closely evaluated me and my party upon our arrival, with no one else approaching us until he gave the permission to do so. Immediately, I associated this hierarchy with the Pedigree Thesis of positivism, which states that the cornerstone of a legal society is the authority of a sovereign, who is viewed as the leader and the source of the order in the society. Finding this in place, I had an inclination that there would be at least something resembling law in this society. Upon closer examination, this inclination became much more of a fact.

My second observation, which lent itself to further belief that laws were in place, was the fact that even as an outsider, no harm came to me or any of my party, nor were any of our provisions or supplies taken by any of the natives, but on the other hand, some people were hard at work, while others lay lazily in the sun, basically contributing nothing to the productivity of the society. This showed me that law-protection of people from harm- was exclusive from the moral obligations of the society-such as working to improve the community. Basically, I eventually came to associate the Separability Thesis based on my observation; essentially, the legality and morality of the island were independent of one another.

Ultimately, the member of my expedition who spoke the language of Pango-Pango was able to have a conversation with one of the natives who was clearly working hard and seemed to be a reliable source of information. What was learned from that conversation was that the third facet of positivism, the Discretion Thesis, shaped the legal system of the island, primitive as it was. In other words, the elder who served as sovereign had, in time, developed a set of laws because of difficult legal decisions which made new laws necessary. This is quite similar to our system of laws, whereby new legislation takes place due to events or requirements of the masses.