Anglo-American legal positivism: periodisation, classification, authors and key ideas

Legal positivism is often subject to simplistic criticism as an “outdated” approach, reduced to J. Austin’s formula (“law is the command of the sovereign, backed by sanction”). This approach ignores the conceptual distance between classical positivism and its contemporary variants. Insufficient attention to the evolution of positivism in Anglo-American jurisprudence leads to its perception in Ukraine exclusively as a “classical” stage, limited to the period up to the mid-20th century. This article proposes the author’s periodization of the stages of formation of Anglo-American legal positivism. In particular: “pre-classical” (T. Hobbes, J. Bentham), “classical” (J. Austin – “command theory”), “modern” (H. Hart, J. Raz), and “ultra-modern” (S. Shapiro, K. Himma) stages. The “pre-classical” stage of legal positivism has a philosophical basis, primarily in J. Bentham’s utilitarianism, while the “classical” stage is characterized by J. Austin’s well-known formula mentioned above. The “modern” stage, initiated by H. Hart in the 1960s, refers to the analytical philosophy prevailing in Oxford, which is transferred to the philosophy of law, criticizing J. Austin and introducing a division into primary and secondary rules (including the rule of recognition). Its foundations are based on key theses: social fact and separation theses. J. Raz, a representative of exclusive positivism, shifted the emphasis to the authority of law as its effectiveness in society through the existence of “the authority of law” rather than coercion. The “ultra-modern” stage offers qualitatively new concepts: K. Himma’s asserts the conceptual necessity of coercion for the functioning of law, not limited to physical coercion, while S. Shapiro considers law as a “planning theory” – an instrument of impersonal social planning for achieving the goals of social life. The author of the article offers a clear periodization and classification of Anglo-American legal positivism, which makes it possible to discuss the ideas of these authors in scientific discourse, including authors of the “ultra-modern” period.