Legal Positivism Legal positivism is the name given to a theory of law , developed by utilitarian jurists like Jeremy Bentham and John Austin, and most famously developed in the 20th century by the Austrian Hans Kelsen and the Englishman Herbert Hart. This theory would establish an analytical foundation for legal analysis autonomous of both political and sociological explanations of legal institutions and practices. Austin believed that law could be defined as the commands of the sovereign, a position which created some difficulties for 'laws' which did not appear to have this character. Whether in its modern Hartian or Kelsenian variations, the key ideas of legal positivism are straightforward.
Laws are laws by virtue of their form, rather than of their moral or political content.
The validity of laws is determined within the empirically relevant Grundnorm or rule of recognition. Applied to liberal democratic states, legal positivism suggests at least three key propositions. First, the formal role of the judicial system is to determine the laws established by the constitution and validly made by the democratically authorized law-makers. Second, for legal positivists the relevant operational background normative theory for judges and lawyers in a liberal democratic state is the one which establishes the extra-legal source of valid laws. Such background theories, while important, may not, of course, be of much help in deciding judicial 'hard cases' since laws may be ambiguous and conflict.