8 - The British Tradition of Legal Positivism

Summary

Postema argues that – contrary to the received opinion – we may view contemporary, post-Hartian British legal positivism or, more broadly, post-Hartian British jurisprudence, as having developed naturally from the legal philosophies put forward by Matthew Hale and Thomas Hobbes in the seventeenth century, which in turn were part of an earlier and philosophically more ambitious, pre-positivist tradition, the thetic tradition, dating back to Jean Bodin, Marsilius of Padua and, ultimately, to Thomas Aquinas. Postema explains that if we do, we will see that instead of being a quirky ancestor of the British positivist tradition, Bentham appears as the high point of the thetic tradition, which came to an end when Austin decisively disengaged British jurisprudence from Bentham’s legal philosophy. We see, then, Postema continues, that Austin’s jurisprudence changed the direction of British jurisprudence decisively from the thetic tradition to a positivist approach to the study of jurisprudence, one that continues to this day and sees jurisprudence as separable from moral philosophy and metaphysics, as well as history, social theory and comparative studies.