Quotes & Sayings About Legal Positivism

What I have called the internal morality of law is in this sense a procedural version of natural law, though to avoid misunderstanding the word "procedural" should be assigned a special and expanded sense so that it would include, for example, a substantive accord between official action and enacted law. The term "procedural" is, however, broadly appropriate as indicating that we are concerned, not with the substantive aims of legal rules, but with the ways in which a system of rules for governing human conduct must be constructed and administered if it is to be efficacious and at the same time remain what it purports to be. — Lon L. Fuller

How did Kirchmann understand the worthlessness of jurisprudence ? The answer lies in the aphorism: "Three revisions by the legislator and whole libraries became wastepaper." With a sharp alteration this answer became a slogan:"A stroke of the legislator's pen and whole libraries became wastepaper." Another aphorism in the same vein made the point even more brusquely and less politely: "Positive law turns the jurist into a worm in rotten wood." Kirchmann meant that jurisprudence could never catch up with legislation. Thus our predicament becomes immediately obvious. What remains of a science reduced to annotating and interpreting constantly changing regulations issued by state agencies presumed to be in the best position to know and articulate their true intent? — Carl Schmitt

The judge punishes lawbreakers as a burning house injures its occupants. A person may be burned to death while robbing a home or saving a friend. Similarly, from a moral point of view, the judge's work is good or evil, depending on whether the laws he enforces are good or evil. — Thomas Szasz

Auguste Comte, in particular, whose social system, as unfolded in his Systeme de Politique Positive, aims at establishing (though by moral more than by legal appliances) a despotism of society over the individual, surpassing anything contemplated in the political ideal of the most rigid disciplinarian among the ancient philosophers. — John Stuart Mill

The crisis of European jurisprudence began a century ago with the victory of legal positivism. — Carl Schmitt

Hauriou, became a crown witness for us when he confirmed this connection in 1916, in the midst of WWI: The revolution of 1789 had no other goal than absolute access to the writing of legal statutes and the systematic destruction of customary institutions. It resulted in a state of permanent revolution because the mobility of the writing of laws did not provide for the stability of certain customary institutions, because the forces of change were stronger than the forces of stability. Social and political life in France was completely emptied of institutions and was only able to provisionally maintain itself by sudden jolts spurred by the heightened morality. — Carl Schmitt

True law is not imposed; it arises from unintentional developments. ( ... )Law emerges ( ... ) as something not merely legislated but given. The later positivism knows no origin and has no home. It recognizes only causes or basic norms. It seeks to be the opposite of "unintended" law. Its ultimate goal is control and calculability. — Carl Schmitt

Legality has become a poisonous dagger, with which one party stabs the other in the back. — Carl Schmitt

The motorization of law into mere decree was not yet the culmination of simplifications and accelerations. New accelerations were produced by market regulations and state control of the economy - with their numerous and transferable authorizations and subauthorizations to various offices, associations and commissions concerned with economic decisions. Thus in Germany, the concept of "directive" appeared next to the concept of "decree." This was "the elastic form of legislation," surpassing the decree in terms of speed and simplicity. Whereas the decree was called a "motorized law," the directive became a "motorized decree." Here independent, purely positivist jurisprudence lost its freedom of maneuver. Law became a means of planning, an administrative act, a directive. — Carl Schmitt