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  • 6 - The French Tradition of Legal Positivism

  • from Part II - History
  • Edited by Torben Spaak, Stockholms Universitet, Patricia Mindus, Uppsala Universitet, Sweden
  • Book:
    The Cambridge Companion to Legal Positivism
    Published online:
    21 January 2021
    Print publication:
    04 February 2021, pp 133-151

  • Summary

    Troper considers five types of legal positivists in French legal thinking, namely, the exegetical school, the sociological school and Léon Duguit, Carré de Malberg, the Vichy scholars, and the analytical legal positivists. He explains that Carré de Malberg put forward a theory of positive law that aims to be descriptive, according to which positive law is a product of the will of the state and the state possesses an innate capacity to obligate the citizens by means of its laws. He points out, however, that while Carré de Malberg’s description of French positive law aims to reveal an essence of the state, in reality the description proceeds from a set of abstractions that reflect his own normative theory of the state; and that this means that Carré de Malberg, while professing to espouse a methodological version of legal positivism, is actually closer to defending ideological positivism.