Legal Positivism vs. Social Contract Theory

Attribute	Legal Positivism	Social Contract Theory
Founder	John Austin	Thomas Hobbes
Definition	Law is a command of the sovereign backed by a threat of punishment	Individuals agree to form a society and abide by its rules for mutual benefit
Source of Law	Sovereign authority	Consent of individuals
Role of Morality	Not necessary for law to be valid	Morality is the basis for the social contract
Enforcement	Through the power of the state	Through the consent of individuals

Introduction

Legal positivism and social contract theory are two prominent theories in the field of jurisprudence that seek to explain the nature of law and its relationship to society. While both theories have their own unique attributes, they also share some similarities in terms of their focus on the role of authority and the legitimacy of legal systems.

Legal Positivism

Legal positivism is a theory that asserts that the validity of law is determined by social facts, such as legislation or judicial decisions, rather than moral considerations. According to legal positivists, there is no necessary connection between law and morality, and a law can be valid even if it is unjust or immoral. One of the key proponents of legal positivism is John Austin, who argued that law is a command issued by a sovereign backed by the threat of punishment.

• Focuses on the social facts that determine the validity of law
• Rejects the idea that law is necessarily connected to morality
• Emphasizes the role of authority in creating and enforcing laws

Social Contract Theory

Social contract theory, on the other hand, posits that the legitimacy of a legal system is based on a hypothetical agreement among individuals to form a society and abide by its laws. This theory is often associated with philosophers such as Thomas Hobbes, John Locke, and Jean-Jacques Rousseau, who argued that individuals voluntarily give up some of their freedoms in exchange for the protection and benefits provided by society. Social contract theory emphasizes the consent of the governed as the foundation of legitimate authority.

• Legitimacy of legal system based on hypothetical agreement among individuals
• Individuals voluntarily give up some freedoms in exchange for protection and benefits
• Consent of the governed is the foundation of legitimate authority

Comparison

While legal positivism and social contract theory differ in their approach to the nature of law, they share some common attributes. Both theories recognize the importance of authority in creating and enforcing laws, albeit in different ways. Legal positivism emphasizes the role of a sovereign authority in issuing commands that are backed by the threat of punishment, while social contract theory highlights the consent of individuals as the basis for legitimate authority.

Additionally, both theories address the issue of legitimacy in legal systems. Legal positivism argues that the validity of law is determined by social facts, such as legislation or judicial decisions, rather than moral considerations. Social contract theory, on the other hand, asserts that the legitimacy of a legal system is based on a hypothetical agreement among individuals to form a society and abide by its laws.

Conclusion

In conclusion, legal positivism and social contract theory are two important theories in jurisprudence that offer different perspectives on the nature of law and its relationship to society. While legal positivism focuses on the social facts that determine the validity of law and rejects the idea of a necessary connection between law and morality, social contract theory emphasizes the consent of individuals as the foundation of legitimate authority. Despite their differences, both theories contribute to our understanding of the role of authority and legitimacy in legal systems.