Jeremy Bentham is credited with the description and inception of legal positivism in response to what he viewed as often arbitrary and unfair application of law within the English common law system. Positivism is an attempt to define the essence and nature of the law using only logic and empirically verifiable evidence in an attempt to establish a just system. What Jeremy Bentham certainly succeeded in doing was to describe and promulgate the advantages of statutory law over common law. However, neither he, nor John Austin, nor Hans Kelsen (his most prominent and immediate successors) were able to successfully divulge the nature or essence of law itself, because they rejected the premise of metaphysical reality (i.e. morality) with which the law is inextricably linked.

(There is some use to discussing law without morality, as law and morality do not overlap entirely. These men were able to work out different ways law may be passed to citizens from superiors, and to figure out the advantages or disadvantages to having judges able to legislate, or not, or to what degree, as well as the importance of a feedback system from the political inferiors to ensure equitability and sustainability.)

In his book, The Concept of Law, H.L.A. Hart describes the difficulty in defining law by first describing the conditions which must be met to define anything. The precondition which he claims is the most important is the location of the item or concept we are attempting to define within a wider group with which we are familiar. In his own words, “…a wider family of things or genus, about the character of which we are clear, and within which the definition locates what it defines”.

Example: In the larger family of snakes, there are two snakes which have red, yellow and white stripes, though each type has a unique color sequence. There is a saying to remember which is which, “red on yellow kills a fellow (king snake), red on white might (coral snake)”. If I had only given you the rhyme without the larger family (snakes) in which to locate the red, yellow and white objects, you would not know whether I was discussing snakes, ice cream, balls or state flags.

To define the law, it has to fall within a larger family of similar things. Those who had studied the origin of law historically prior to Bentham (Aquinas being the foremost among them) seemed to generally agree that morality is a fundamental and guiding principle with respect to the formation and execution of what we now consider “the law”. When the Positivist philosophers refused to incorporate a metaphysical origin for the law, they also lost their ability to define it, because the law is not something entirely derived in the material realm. Because of this they were able to discuss what to do with laws once we had them, but not where they come from. Though these men made significant strides in bettering our understanding and practice of the law, Postivism as a complete theory of law has a glass ceiling, so to speak, which was formed by its refusal to incorporate old ideals (metaphysical reality/morality) into its analysis.

G.K. Chesterton discusses the phenomenon of ignoring old ideals in his book, What’s Wrong with the World. He talks about how there is no such thing as a new ideal, and that any revolution is really a return to some virtue, the importance of which had been lost. Chesterton emphasizes the necessity of considering what has been tried and applying history to our current endeavors, and that trying to move or ‘make progress’ without regard to the past is really a step in the wrong direction. In light of this, he describes man as properly being a “misshapen monster, with his feet turned forward and his face turned back.”

It is not only Positivist philosophy which benefits from this incorporation of “old ideals”. In fact it is the bane of modern times (I assume not only currently, but at all times) to assume that the ideals in vogue (equality, diversity…) are new, refreshing, and will carry us on to further enlightenment, while mocking the old ideals, considering them antiquated or useless (the concept of right/wrong and even of morality currently…) because evil is still present in the world. Perhaps we will find, as Chesterton suggested, that if we turn our heads around, our feet will finally find they are getting somewhere which is an improvement upon the current situation, instead of always expecting improvement to come around the next corner.