Legal Positivism and Naturalistic Explanation of Action

• Published in: Law and philosophy Vol. 43; no. 1; pp. 31 - 59
• Main Author: Priel, Dan
• Format: Journal Article
• Language: English
• Published: Dordrecht Springer Netherlands 01.02.2024
• Subjects: Ethics; Law; Law and Criminolgy; Legal History; Philosophy of Law; Political Philosophy; Theories of Law
• ISSN: 0167-5249; 1573-0522
• DOI: 10.1007/s10982-023-09479-9

It is natural to think of legal positivism and jurisprudential naturalism as intellectually allied ideas. Legal positivism is associated with the idea that law is a matter of social fact; naturalism is a philosophical tenet that, among other things suggests the importance of scientific findings and methods to philosophy. At the very least, there seems to be a close family resemblance between the two views. In this essay, I challenge this view from a naturalistic perspective. I show that the best-known proponents of legal positivism in the twentieth century all rejected naturalism. I dedicate most of my discussion to H.L.A. Hart’s version of legal positivism, as it appears superficially friendly to naturalism. I show that throughout his career and in writings on a wide range of topics, Hart consistently argued against the applicability of the methods of science to the explanation of social phenomena. This is not a small matter: I argue that it is this anti-naturalistic stance that contributed to his descriptively faulty account of adjudication. After reviewing more briefly the work of other leading legal positivists, I argue in my conclusion that those seeking to advance a naturalistic approach to law should turn their backs of much of twentieth-century legal positivism, which in various guises has been hostile to naturalism.