The very idea of legal positivism

In the recent past, the distinction between inclusive and exclusive legal positivism has been touted as the important controversy in the field. I argue that a more fundamental distinction lies elsewhere - the distinction between positivism qua naturalism and positivism without naturalism. In the first camp, positivism qua naturalism, John Austin argues that the reduction to fact (habit, fear) is sufficient to explain the ostensibly normative material of the law, and if this is so, no non-contingent link between the law and morality can be necessary. This is to say that H. L. A. Hart's celebrated separation principle, far from lying at the very core of legal positivism, is a corollary of the fundamental doctrine, naturalism. Hans Kelsen is the proponent of positivism without naturalism. While Kelsen of course defends the separation principle, his position represents a wholesale rejection of naturalism, which, he insists, is wrong-headed. Kelsen believes that he can explicate normativity within positivism. He does not offer his normativity thesis as an answer to the time-honoured question of how obedience to law might be justified. Rather, Kelsen's normativity thesis is properly seen as the core of his argument against legal positivism qua naturalism.