Modern jurisprudence draws a sharp distinction between the law and (public) morality. According to positivistic accounts of the law, legal norms are regarded as valid if they are part of a legal system (as defined by a ‘rule of recognition’ or ‘basic norm’). A legal provision’s validity is thus independent on its complying with basic propositions of morality. According to a corresponding ‘grand narrative’, pre-modern law was non-positive in the sense that it did not draw a clear distinction between the law and other forms of normativity such as morality. This distinction, so the narrative goes, was firmly established only during the 19th and 20th centuries, with modern legislation and modern practices of case-reporting.
Obviously, such an account of positive law reflects experiences during the 20th century, in particular crimes committed by states through the means of law. Nevertheless, the underlying grand narrative is difficult to reconcile with the historical evidence. Indeed, before Nazi totalitarianism, the question whether a legal provision’s validity depends on its being in accordance with morality had not been an issue in legal thinking (the issue had only exceptionally been discussed by Neo-Scholastic theologians).
In my lecture, I want to trace the process of the law’s becoming positive on the basis of an alternative distinction, namely the distinction between the law and legal scholarship, or authority and truth (Hobbes). Such an alternative narrative is highly convincing far as continental legal systems with their strong role of legal scholarship are concerned. Here legal systems finally became ‘positive’ when the validity of legal norms became the object of (constitutional) regulation. However, the jury is still out on whether such a narrative is plausible also as far as the history of the common law is concerned.