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The Autonomy of Law: Essays on Legal Positivism

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• ISBN-10 0198267908
• ISBN-13 978-0198267904
• Publisher Clarendon Press
• Publication date July 29, 1999
• Language English
• Dimensions 8.5 x 5.51 x 0.79 inches
• Print length 352 pages
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• Publisher ‏ : ‎ Clarendon Press (July 29, 1999)
• Language ‏ : ‎ English
• Paperback ‏ : ‎ 352 pages
• ISBN-10 ‏ : ‎ 0198267908
• ISBN-13 ‏ : ‎ 978-0198267904
• Lexile measure ‏ : ‎ 1580L
• Item Weight ‏ : ‎ 14.8 ounces
• Dimensions ‏ : ‎ 8.5 x 5.51 x 0.79 inches
• #203 in Philosophy of Law
• #531 in Jurisprudence (Books)
• #7,153 in History & Theory of Politics

About the author

Robert p. george.

Robert P. George is McCormick Professor of Jurisprudence and Director of the James Madison Program in American Ideals and Institutions at Princeton University. He served as chairman of the United States Commission on International Religious Freedom (USCIRF), on the President’s Council on Bioethics, as a presidential appointee to the United States Commission on Civil Rights, and as the U.S. member of UNESCO’s World Commission on the Ethics of Scientific Knowledge and Technology (COMEST). He is a former Judicial Fellow at the Supreme Court of the United States, where he received the Justice Tom C. Clark Award. His scholarly articles and reviews have appeared in such journals as the Harvard Law Review, the Yale Law Journal, the Columbia Law Review, the American Journal of Jurisprudence, and the Review of Politics.

Professor George is a recipient of many honors and awards, including the Presidential Citizens Medal, the Honorific Medal for the Defense of Human Rights of the Republic of Poland, the Canterbury Medal of the Becket Fund for Religious Liberty, the Sidney Hook Memorial Award of the National Association of Scholars, the Philip Merrill Award of the American Council of Trustees and Alumni, the Bradley Prize for Intellectual and Civic Achievement, the Irving Kristol Award of the American Enterprise Institute, and Princeton University’s President’s Award for Distinguished Teaching. He has given honorific lectures at Harvard, Yale, Oxford, University of St. Andrews, and Cornell University. He is a member of the Council on Foreign Relations, and holds honorary doctorates of law, ethics, science, letters, divinity, humanities, law and moral values, civil law, humane letters, and juridical science. A graduate of Swarthmore College, he holds J.D. and M.T.S. degrees from Harvard University and the degrees of D.Phil., B.C.L., and D.C.L. from Oxford University.

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The Tradition of Legal Positivism in Modern Legal Thought

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• William E. Conklin 6 , 7  

Part of the book series: Law and Philosophy Library ((LAPS,volume 52))

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Why do jurists and officials consider certain norms/rules as legally binding? How is it possible for officials to insist that their role is not to question the political wisdom or substantive moral content of norms/rules? Why do lawyers and judges, to be more specific, observe from the sidelines, as it were, as if their norms/rules were impersonal and their decisions distanced?

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Sophods, Antigone,in The Three Theban Plays: Antigone, Oedipus the King, and Oedipus at Colonus, trans. Robert Fagles (New York: Penguin, 1982, 1984), line 825.

Google Scholar  

This association of legal authority with the personal virtues of a ruler continued even to early modern times, as one may observe in Machiavelli’s Prince and his Discourses. For Machiavelli, the virtu of the ruler combined with fortune or chance to ensure the obedience of the citizenry to the ruler of a city-state. Machiavelli’s sense of virtu, though, differed substantially from fifth century Athens for the ruler’s `goodness’ was measured in terms of his ability to remain in power in the city.

In the Apology (24c), Metetus accuses Socrates of doing “injustice by corrupting the young, and by not believing in the gods in whom the city believes, but in other daimonia that are novel. Four Texts on Socrates trans. Thomas G. West and Grace Starry West, intro. Thomas G. West (Ithaca: Cornell University Press, 1984; 1998 rev’d. ed.).

G.W.F. Hegel, The Phenomenology of Spirit, trans. A.V. Miller (Oxford: Oxford University Press, 1977; 1807), para. 198–201.

M. Cary, A History of Rome: Down to the Reign of Constantine (London: Macmillan, 1957; 2d ed.), 145–46.

The notion of a speech act in the context of legal discourse is best elaborated in Robert Alexy, A Theory of Legal Argumentation: The Theory of Rational Discourse as Theory of Legal Justification, trans. Ruth Adler and Neil MacCornrick (Oxford: Clarendon Press, 1989), 53–58, 104–07.

See generally Leonard Krieger, “Authority,” in Philip P. Weiner, Dictionary of the History of Ideas: Studies of Selected Pivotal Ideas, vol. 1 (New York: Charles Scribner’s Sons, 1968; 1973), 141–62.

Augustus (27 B.C.E.-14 C.E.) represented each sense of auctoritas: he acted as the public trustee of the Senate, the private counsellor of the people and the guardian trustee of the Commonwealth (pater patriae); secondly, his statements possessed the auctoritas of truth and; thirdly, he authored or created incomplete ideas in those statements.

Otto Gierke, Political Theories of the Middle Ages, trans. with intro. Frederic William Maitland (Beacon Hill/Boston: Beacon Press, 1900; 1958), 76–100.

See, e.g., Robert Summers, “The New Analytical Jurists,” in New York University Law Review 41 (1966): 861–96, 869; and `Legal Philosophy Today — An Introduction,’ in Summers ed., Essays in Legal Philosophy, vol. 1 (Berkeley: University of California Press, 1968), 1–21, 16: “it would be best in legal philosophy to drop the term ”positivist“ for it is now radically ambiguous and dominantly pejorative.” In “Beyond Positivism and Law,” Ota Weinberger writes that “[i]t is altogether questionable whether there even exists a class of characteristics common to all positivist theories.” The best that one can do is to offer a “family resemblance.” Neil MacCormick and Ota Weinberger, An Institutional Theory of Law (Dordrecht: Reidel, 1986), 111–26, 113. Also see Kent Greenawalt, `Too Thin and Too Rich: Distinguishing Features of Legal Positivism’ in Robert P. George, ed., The Autonomy of Law: Essays on Legal Positivism (Oxford: Clarendon Press, 1996): 1–29, 24: “If we could achieve recognition of some central truths and limitations of legal positivism, then perhaps we could reduce the confusion and misconceptions that attach to that label, and see more to clearly substantial issues about law and about courts that interpret law. Until that happy day arrives, we may do better to discuss issues on their own, not relying so much on labels that now mislead and irritate more than they clarify.”

Lon Fuller, The Law in Quest of Itself (Boston: Beacon Press, 1940), 46–7.

Hessel E. Yntema, “Jurisprudence on Parade,” in Michigan Law Review 39 (1941): 1154–1181, 1164. Also see Edgar Bodenheimer, “Analytical Positivism, Legal Realism, and the Future of Legal Method” in Prginia Law Review 44 (1958): 365–78, 365

Roscoe Pound, Jurisprudence 5 vols. (St Paul: West, 1959), vol. 1, 258.

Hans Kellen, The Pure Theory of Law, trans. Max Knight (Berkeley: University of California Press, 1967).

Hart, “Analytical Jurisprudence in Mid-Twentieth Century: A Reply to Professor Bodenheimer,” in University of Pennsylvania Law Review 105 (1957): 953–75, 955–56. Having said that, Hart also goes on to claim that “the time the student can afford to spend on jurisprudence is likely to be better spent on the close and careful analysis of fundamental legal notions and those lying on the boundary of a legal system than in assimilating what he can of other social disciplines.”

Frederick Schauer, “Positivism through Thick and Thin,” in ed. Brian Bix, Analyzing Law: New Essays in Legal Theory (Oxford: Oxford University Press, 1998), 65–78, at 70.

MacCormick, “Natural Law and the Separation of Law and Morals,” in ed. Robert P. George, Natural Law Theory: Contemporary Essays (Oxford: Clarendon Press, 1992), 105–33.

H.L.A. Hart, The Concept of Law (Oxford: Clarendon, 1961, 1994, 2d ed.), 193–200.

See, e.g., Jules Coleman, “Second Thoughts and Other First Impressions,” in ed. Brian Bix, Analyzing Law: New Essays in Legal Theory (Oxford: Clarendon, 1988), 257–322; “Incorprationism, Conventionality and Practical Difference,” in Legal Theory 4 (1998): 381–425.

See, e.g., Joseph Raz, “Authority, Law and Morality,” in Ethics in the Public Domain (Oxford: Clarendon, 1994).

Austin, Lectures on Jurisprudence vol 2 (New York: Burt Franklin, 1970; reprint from Robert Campbell ed., London: John Murray, 1885, 5th ed. rev’d; originally published in 1861), Lecture 37, 337–38.

Joseph Raz, “The Nature of Law,” in Ethics in the Public Domain, 195–209; “Authority, Law and Morality.”

This notion of the `discovery’ of a rule is juxtaposed with the justification of a rule in Richard Wasserstrom, The Judicial Decision (Stanford: Stanford University Press, 1961). Raz makes a similar distinction between deliberation and a decision. See Raz in “Reasons for Action, Decisions and Norms” in ed. Joseph Raz, Practical Reasoning (Oxford: Oxford University Press, 1978), 128–43; and Ethics in the Public Domain.

Anthony J. Sebok, Legal Positivism in American Jurisprudence (Cambridge: Cambridge University Press, 1998).

See generally Joke Klein Kranenburg, “Legal Positivism Divided” in Current Legal Theory 15 (1997): 3–23.

Jules Coleman, “Authority and Reason” in ed. Robert P. George, Natural Law (Oxford: Clarendon Press, 1992), 287–319; and “Incorporationism, Conventionality, and the Practical Difference Thesis,” in Legal Theory 4: 381–425, at 407–12. However, in “Second Thoughts and other First Impressions” in ed. Brian Bix, Analyzing Law: New Essays in Legal Theory (Oxford: Clarendon Press, 1998), 257–322, at 266, Coleman writes that legal positivism claims that there must be one “logically possible legal system [structure]” where there is no ought value or moral worth which conditions the structure.

Joseph Raz, The Authority of Law, 95. Coleman, “Second Thoughts,” 261.

See William E. Conklin, Images of a Constitution (Toronto: University of Toronto Press, 1989).

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Conklin, W.E. (2001). The Tradition of Legal Positivism in Modern Legal Thought. In: The Invisible Origins of Legal Positivism. Law and Philosophy Library, vol 52. Springer, Dordrecht. https://doi.org/10.1007/978-94-010-0808-2_4

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Robert P. George

Natural law and positive law.

In Robert P. George (ed.), The Autonomy of Law:  Essays on Legal Positivism (Oxford University Press, 1996). Reprinted in David McLean (ed.), Common Truths:  New Perspectives on the Natural Law (ISI Books, 1999); in Aileen Kavanagh and John Oberdiek, Arguing about Law (Routledge, 2009); and in Spanish translation in Persona y Derecho  39 (1998).

Online: Oxford University Press Witherspoon Institute [pdf]

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Guest Essay

Modi’s Temple of Lies

By Siddhartha Deb

Mr. Deb is the author of the novel “The Light at the End of the World.”

The sleepy pilgrimage city of Ayodhya in northern India was once home to a grand 16th-century mosque, until it was illegally demolished by a howling mob of Hindu militants in 1992. The site has since been reinvented as the centerpiece of the Hindu-chauvinist “ new India ” promised by Prime Minister Narendra Modi.

In 2020, as Covid-19 raged unchecked across the country, Mr. Modi, the leader of the Hindu right, went to Ayodhya to inaugurate construction of a three-story sandstone temple to the Hindu god Ram on the site of the former mosque. Dressed in shiny, flowing clothes and wearing a white N95 mask, he offered prayers to the Ram idol and the 88-pound silver brick being inserted as the foundation stone.

I traveled to Ayodhya a year later and watched as the temple was hurriedly being built. But it seemed to me to offer not the promise of a new India so much as the seeds of its downfall.

Mr. Modi’s Hindu nationalism has fed distrust and hostility toward anything foreign, and the receptionists at my hotel were sullenly suspicious of outsiders. There was no hotel bar — a sign of Hindu virtue — and the food served was pure vegetarian, a phrase implying both Hindu caste purity and anti-Muslim prejudice.

Outside, devotional music blared on loudspeakers while bony, manure-smeared cows, protected by Hindu law, wandered waterlogged streets in the rain. The souvenir shops at the temple displayed a toxic Hindu masculinity, highlighted by garish shirts featuring images of a steroid-fed Ram, all bulging muscles and chiseled six-packs. Even Hanuman, Ram’s wise but slightly mischievous monkey companion, appeared largely in the snarling Modi-era version known as Angry Hanuman , which went viral in 2018 after Mr. Modi praised the design.

After a decade of rule by Mr. Modi and his Bharatiya Janata Party, Hindu-majority India maintains the facade of a democracy and has so far avoided the overt features of a theocracy. Yet, as Ayodhya revealed, it has, for all practical purposes, become a Hindu state. Adherence to this idea is demanded from everyone, whether Hindu or not.

This is not sustainable, even if it seems likely that Mr. Modi will ride to a third victory in national parliamentary elections that begin Friday and conclude June 1. Mr. Modi’s India is marked by rampant inequality, lack of job prospects, abysmal public health and the increasing ravages of climate change. These crises cannot be addressed by turning one of the world’s most diverse countries into a claustrophobic Hindu nation.

Perhaps even the prime minister and his party can sense this. Their crackdowns on opposition political leaders, manipulation of electoral rolls and voting machines and freezing of campaign funds for opposition parties are not the actions of a confident group.

In January of this year, a wave of Hindu euphoria swept the nation as the temple I had watched being put together with cement and lies (there is no conclusive evidence supporting Hindu claims that Ram was a historical figure or that a temple to him previously stood there) was about to be inaugurated .

Newspapers devoted rapturous front pages to the coming occasion, and when I flew to my former home Kolkata on the eve of the big day, my neighbors there declared their anticipation by setting off firecrackers late into the night. The next morning, on Jan. 22, loudspeakers and television screens tracked me through the city with Sanskrit chants and images of the ceremony taking place at the temple. Mr. Modi, as usual, was at the center of every visual. Friends in Delhi and Bangalore complained about insistent neighbors and strangers knocking on their doors to share celebratory sweets. Courts, banks, schools, stock markets and other establishments in much of the country took a holiday.

The inauguration date seems to have been chosen carefully to overshadow Republic Day, on Jan. 26, which commemorates India’s adoption of its Constitution, amended in 1976 to affirm the country as a “socialist, secular, democratic” republic. Those values are fiercely in opposition to what Hindu nationalism has ushered in. The temple inauguration date, which will be celebrated annually, reduces the republic to secondary status next to Mr. Modi’s Hindu utopia.

A similar effort has been underway to diminish the importance of Aug. 15, marking Indian independence in 1947. In 2021, Mr. Modi announced that Aug. 14 would henceforth be Partition Horrors Remembrance Day, referring to the bloody division of the country into Hindu-majority India and an independent Muslim Pakistan in 1947, a murderous affair for Hindus, Muslims and Sikhs alike.

This was sold to the Indian public as underlining the need for unity, but it was also a reminder from Hindu nationalists that a section of Muslims broke off to form their own nation and that the loyalties of India’s remaining 200 million Muslims were suspect. Given that Hindu rightists participated in massacres, rapes and forced displacement during the partition, Mr. Modi’s weaponization of the suffering seems particularly reprehensible. I was born to a Hindu family, and my father, a refugee from the partition, never blamed Muslims his entire life.

There have been countless other such stratagems with the Hindu right in power. The old Parliament building, whose design features refer to India’s syncretic history — Hindu, Buddhist, Muslim and Christian — was replaced last year by a new structure that explicitly reduces India’s past to a monochromatic Hindu one.

In the new Parliament, the lotus flower, common in Hindu iconography and the symbol of the Bharatiya Janata Party, runs amok as a motif. A statue atop the building of four back-to-back lions — India’s national symbol and a look back at its Buddhist past — has been altered so that the lions are no longer serene and meditative, as in the original, but snarling, hypermuscular Hindu beasts . Everywhere in India, roads and cities have been renamed to sever connections to centuries of Muslim history in favor of a manufactured Hindu one. On new highways through the state of Uttar Pradesh, where I traveled last summer, gleaming signboards pointed toward concocted Hindu sites but almost never toward the state’s rich repository of Muslim mosques, forts and shrines.

Knowledge and culture are being attacked along similar lines. Bollywood , Indian television and the publishing industry have become willing accomplices of Hindu chauvinists, churning out content based on Hindu mythology and revisionist history. In the news media, the few journalists and institutions unwilling to shill for the Hindu cause face legal threats and police raids .

In education, government institutions are run by ignorant functionaries of the ruling party , and from school textbooks to scientific research papers , the Hindu nationalist version of India is pushed forward, myth morphing into history. In the private universities that have begun to crop up in India, Mr. Modi’s government keeps a close eye on classes, panels or research that might be construed as criticizing his government or its idea of a Hindu India.

This cultural shift and the accompanying reduction of Muslims to alien intruders has been made possible by Mr. Modi delivering on his party’s three main promises to Hindu nationalists .

In 2019 he repealed the notional autonomy enjoyed for decades by the disputed Muslim-majority state of Jammu and Kashmir, which the Hindu right had assailed as favoritism toward Muslims and victimization of Hindus. Later that year, Mr. Modi delivered on a second promise by introducing a law that ostensibly opened a pathway to Indian citizenship for persecuted minorities from neighboring countries but whose true motive lay in that it pointedly excluded Muslims. In the northeastern state of Assam , a registration process had already been underway to disenfranchise Muslims if they could not provide elaborate documentation of their Indian citizenship. The Bharatiya Janata Party’s declared intention to establish a similar registration system nationwide hangs the threat of disenfranchisement over all of India’s Muslims.

The inauguration of the Ram temple delivered on the third and most important electoral promise. It announced, triumphantly, the climax of the battle to turn India into a Hindu nation. And yet after 10 years under Mr. Modi’s government, India is more unequal than it was under colonial British rule. In 2020 and 2021, it surpassed China as the largest source of international migrants to O.E.C.D. countries. Many of the undocumented migrants to be found pleading for entry on the U.S.-Mexico border are from India , and they include Hindus for whom India should be a utopia.

The Hindu right’s near-complete control of India may indeed deliver a third term for Mr. Modi, maybe even the absolute parliamentary majority his party wants in order to expand on the transformation it has begun.

But the truth is harder to hide than ever. Mr. Modi and his party are giving India the Hindu utopia they promised, and in the clear light of day, it amounts to little more than a shiny, garish temple that is a monument to majoritarian violence, surrounded by waterlogged streets, emaciated cattle and a people impoverished in every way.

Siddhartha Deb ( @debhartha ) is an Indian writer who lives in New York. His most recent novel is “The Light at the End of the World.” His new nonfiction book is “Twilight Prisoners: The Rise of the Hindu Right and the Fall of India.”

The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips . And here’s our email: [email protected] .

Follow The New York Times Opinion section on Facebook , Instagram , TikTok , WhatsApp , X and Threads .

An earlier version of this article misstated a detail about India’s Constitution. It described the country as a “socialist, secular, democratic” republic when it was amended in 1976, not when it was adopted in 1950.

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8 Law’s Normative Claims

• Published: June 1999
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People can look at non-conforming behaviour in two ways: either the person is acting immorally or the moral theory that condemns the behaviour is mistaken. To choose the former is to reflect a confidence in the existing moral theory, while choosing the latter is evidence that moral theory for that particular behaviour is wrong. This point says a lot about the link between the descriptive and evaluative enterprises of law. The development of basic moral principles, which draws from moral intuition, is a similar process when it comes to developing social practices, which in turn draw from human behaviour. Legal positivism has contributed much to clarifying the kind of social facts that characterize legal systems, specifically the kind of normative claims that legal systems typically make. Legal positivism provides much of the descriptive front. This chapter is motivated by an interest in reconciling the normative claims of law with the claims that moral philosophers believe can be justified.

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