Legal Positivism and Natural Law PDF by Norberto Bobbio

# El problema del positivismo jurídico ## The problem of legal positivism Norberto Bobbio Pages 67-90 ### III. Natural law and legal positivism #### 1. Definition of the two terms - The distinction between the different meanings of the expression "legal positivism", presented in the previous ch...

# El problema del positivismo jurídico ## The problem of legal positivism Norberto Bobbio Pages 67-90 ### III. Natural law and legal positivism #### 1. Definition of the two terms - The distinction between the different meanings of the expression "legal positivism", presented in the previous chapter, can also serve another purpose: to eliminate many misconceptions in the traditional dispute between proponents of natural law and legal positivism. - The intensity of the debate can actually lead one to believe that it is a matter of two conceptions opposed in their whole signification and between which one must choose: either one is a natural lawyer or a legal positivist. - On the contrary, I argue that: 1. The expressions "natural law" and "legal positivism" have been adopted with such diverse meanings that the relations between the two currents are placed on different levels depending on whether one or the other meaning is used. 2. These two currents constitute a truly and authentic alternative only on one of these levels. - Precisely because the various levels are not considered, the curious consequence is created that the arguments of the adversaries frequently do not meet and that, after the duel to the death, both are more alive than at the beginning. * "Natural law and legal positivism," in *Rivista di diritto civile*, VIII, 1962, pp. 503-515. #### 2. Three forms of natural law - Natural law, as we have said, affirms the superiority of natural law over positive law. This superiority has been maintained, broadly speaking, in three ways that distinguish three typical forms of natural law: scholastic, modern rationalist and Hobbesian (I cannot find a better name for the last one). 1. Natural law is the set of primary ethical principles, very general, from which the human legislator must take his inspiration for the formulation of the rules of positive law; the latter, according to the well-known exposition of Saint Thomas, proceeds from what is natural, *per conclusionem,* or *per determinationem*. In this meaning, natural law is a system composed of very few norms (according to some, of only one norm), that addresses, not all men, but mainly legislators. From the fact that the addressees of natural law are primarily legislators, the consequence arises that subjects, in some cases, are obliged to obey even unjust laws, since these are legitimately promulgated. 2. Natural law is the set of *dictamina rectae rationis* that provide the material of the rule, whereas positive law is the set of practical-political means (such as the institution and the organization of a coercive power) that determines the form of the former; or, in other words, the former constitutes the prescriptive part of the rule, that which attributes the normative qualification to a specific behavior, and the latter constitutes the punitive part, that which makes the rule effective in a world that, like the human world, is dominated by passions, which prevent most people from following the dictates of reason. According to the Kantian terminology, which, in my opinion, reproduces this point of view precisely, the distinction between natural law and positive law corresponds to the distinction between prescriptive law and peremptory law; what changes in positive law with respect to natural law, is not the content, but the various procedures used to impose it. In this meaning, natural law is the product of the relations of coexistence of individuals outside the State (that is, in the state of nature) and thus has, as its addressees, not only the legislator, but also individuals in general. 3. Natural law is the foundation or foundation of all legal order. Unlike what occurs with the previous theory, here the content of the regulations is exclusively determined by the human legislator (the sovereign): the function of natural law is purely and simply to give a foundation of legitimacy to the power of the human legislator, prescribing to subjects the obedience to everything that the sovereign orders. In this conception, which, in my opinion, characterizes Hobbes' theory, natural law is reduced to a single norm. In the society of equals: "promises must be kept"; in the society of unequals: "one must obey the commands of the superior." As you can see, in this conception, natural law only serves to start the system: once it is started, the system functions on its own. Natural law, as conceived here, addresses exclusively subjects. Comparing it with the previous conception, the roles of natural law and of positive law are reversed. Here, natural law makes it possible to implement positive law, in the sense that it grounds its legitimacy; there, positive law makes possible the implementation of natural law, since it guarantees its effectiveness; there, law is all natural, except in the mechanism of compulsion; here, it is all positive, except in the process of legitimization. This second conception also represents, historically, the passage from natural law to legal positivism. #### 3. Three moments of positivist critique - The distinction between the three main forms of natural law, presented in the previous paragraph, allows us to identify and recover the three main moments of positivist critique. Each of the three forms of natural law represents a method of affirming that positive law depends on natural law; the three main moments of positivist critique represent the various ways in which natural law has been displaced, even if not entirely removed from the positions it has repeatedly occupied. - Against the first position of natural law - the traditional one or scholastic one, according to which natural law is the set of primary ethical principles - legal positivism has used historicist critique, which does not admit obvious ethical principles - with absolute and universal value. The alleged primary natural laws are merely formal (such as *bonum faciendum, male vitandum*) and therefore can be filled with any content and interpreted by all in their own way. All of the major philosophical currents of last century have been - from this point of view - anti-natural law theorists, from right-wing historicism to left-wing historicism, from evolutionary positivism to sociological positivism, from utilitarianism to pragmatism, and even to irrationalism. Legal positivism has drawn all the consequences from this, such as: if there are no universally valid laws of conduct, if the laws governing life and society are variable over time, there is no other criterion for good and evil than that which is established from time to time by constituted authority - the legislator, the sovereign. Wherever multiple interpretations of natural laws are possible, the most secure interpretation is the one that has history on its side, which manifests itself in the form of political success (theories of realism) or in the approval of the majority (democratic theories). - Against the second form of natural law, the positivist critique has been increasingly arguing that there are no privileged legal subjects and that, consequently, any behavior can become the content of a legal norm. What makes a rule of conduct into a juridical norm is not that it has one content or another, but the way it is created or implemented. On this point, all recognize the typical positivist doctrines of law as the command of the sovereign or as a coercive norm; doctrines whose characteristic is to displace the constitutive element of the notion of law - from the matter to the form of the legal rule (hence the frequent identification of legal positivism and formalism). In Kantian terms we could say that legal positivism, in this sense, is the doctrine that, while denying the character of law even to prescriptive law, makes coercion the essential characteristic of law. - Against the third position of natural law, the positivist critique has been repeatedly reiterating that all legal systems have to be grounded in an external source, not on other legal norms (otherwise it would imply an infinite regress), but on a fact, that is, the principle of effectiveness. What makes a set of rules of conduct into a legal order in a given society, is no longer the existence of a duty of obedience of members, derived from an extra-positive law, but the fact, the simple fact, historically verifiable, that the order is habitually obeyed by most of the people it addresses. When any author tries to continue defending the natural law theory of the fundamental norm, the latter is transformed - as in the doctrine of Kelsen and his followers - not into a norm equal to all other norms, but into a scientific hypothesis, or into a norm with respect to which the problem of validity cannot be raised, since the existence thereof can be admitted only when its effectiveness is verified. #### 4. More about the three forms of legal positivism - If we now examine more closely these three moments of positivist critique, we can see emerge from each of them the three main forms in which legal positivism has been historically presented and upon which I have already called attention, by distinguishing in the vast and complex phenomenon of legal positivism sometimes an ideology of justice (an ethics), or a general theory of law, or a way of understanding the science of law (in a very broad sense, a method). - In its first aspect, that is, as ideology, legal positivism in the final analysis is reduced to the affirmation that valid laws should be obeyed unconditionally, that is, regardless of their content, or that there is a moral obligation to obey all valid laws. I have called this position ethical formalism, defining it synthetically as the conception that reduces justice to validity, since it considers laws just by the mere fact that they are valid. Here I will simply point out that this conception can be considered as a response to the skeptical position that sometimes emerges from the historical and relativistic polemic against natural law. Where there is no moral law objectively accessible to human reason, it may seem that the only remedy against the confusion of moral judgments, which provokes violence and anarchy, is submission to the artificial reason of the sovereign (Hobbes), or to the historical reason that is realized each time in the general will (Rousseau), or in the State (Hegel). - In its second aspect, as general theory of law, legal positivism has nourished a particular current of legal thought, characterized by the reduction of law to state law and of the latter to the products of the legislator; from this derives the common attribution to law of those characteristics that are proper to the codified law of the modern state (generality, mandatory, compulsion, presumption of fullness). However, it seems to me that this current can be illuminated by the appeal to the second moment of positivist critique, that is, that moment in time which brings about a radical displacement from a material consideration of law - characteristic of extreme natural law - to a merely instrumental consideration, that is, to that consideration according to which what charac- terizes law is not its content but the set of procedures by which a specific field of human behavior can be regulated and protected against violation. The formalist theory of law, characteristic of legal positivism, is, under certain forms, the answer to the claim of rationalist natural law theory to establish what is legal and what is not legal before those techniques of social organization, which constitute the State, have been implemented, understanding the State as an apparatus to monopolize power within a given social group. - In its third aspect, legal positivism is a way of understanding the scientific study of law and, consequently, the role of the lawyer. The goal of the science of law is to consider law as it is, and not as it should be. At the basis of this theory of the science of law, one finds the acceptance of a clear distinction between validity and value of law, between rules that can be valid even without being just (which are the only ones that the science of law deals with) and those that can be just without being valid; only the first are the object of the scientific study of law. Legal positivism is linked to this distinction, since it considers law as a mere historical fact and, consequently, eschews all ethical legitimization, that is, the problem of the foundation, which has always been the true occupation of natural law theory. One sees here the connection between this aspect of legal positivism and the critical moment the third in the opposition of natural law theory, where jurists - wielding the principle of effectiveness - have blocked all investigation into the foundation or the ethical legitimization, which would have opened the door, once again, to natural law. - I am less interested in highlighting the relationship between the various moments of the positivist critique of natural law and the various forms of legal positivism, than in pointing out that the expression *legal positivism* can denote various attitudes towards law and has meant very different things, depending on the various attitudes to which it refers. If the notion of legal positivism is reduced to that doctrine that, in the traditional conflict between natural law and positive law, affirms the exclusivity of positive law, this exclusivity has a meaning different depending on whether it becomes the basis of an ethics (or a political ideology), of a theory or of a method. In the first case, it means that positive law, not natural law, should determine human conduct; in the second case, that positive law, not natural law, provides the best explanation of legal phenomena; in the third case, that positive law, not natural law, is the particular object of study for the science of law. #### 5. Relationship between natural law and legal positivism as ideologies. - Having shown that there are three different forms of legal positivism, the next step in this research is to show that the relationship between legal positivism and natural law presents itself differently for each of the three different forms; so diversely that the mere opposition, for being too generic, can mislead us. - The simple opposition is only valid if referred to the relationship between legal positivism as ideology and natural law as ideology. Here, the opposition is clean, so clean that it raises an alternative. The fundamental maxim of legal positivism as ideology can be formulated in this way: *“Laws should be obeyed as such”*; that of natural law in this way: “*One must obey laws only as long as they are just.*” In the first case, laws themselves are the criterion for what is just and what is unjust; in the second, laws are in turn subject to a higher criterion of evaluation (which is considered obtainable, in natural law ethics, from the knowledge of human nature). In the first case, we can speak of legalist ethics, according to which only legal justice exists; in the second case, of naturalist ethics, according to which only natural justice exists (or solely). Note that the anti-positivist debate carried out in recent years by the reborn and reinvigorated natural law theory is an ideological one, that is, a debate where what is imputed to legal positivism is certain assumptions, that is, the surreptitious passage - from a specific method of research or from a specific theory - to the declaration and extolling of certain ideals that would later become the condemnable ideals of the cult of the State, of the extolling of the chief, of de- personalization, and so on. I am not examining here the historical basis for attributing to legal positivism such disastrous faults, since I have dealt with this on other occasions. I am simply noting that if legal positivism is considered - not as a method or as a theory of law, but as an ideology of justice - natural law appears here not as another method or another theory, but as another ideology, and the relationship between one and the other, at this level, is one of relationships between two moralities that exclude each other. -I would only like to add that even at this level, the contrast between legal positivism and natural law is not always so clear. So far we have been thinking of the most extreme versions of the two ideologies. But these extreme versions often exist only in the reconstruction of them made by their adversaries to get an easier target. - In section 5 of the previous chapter, I distinguished between an extreme and a moderate version of positivist ideology. In the same way, it is possible to distinguish two versions, an extreme one and a moderate one, of natural law ideology; consequently, it is possible to enumerate, summarizing, not two, but four typical forms of the ideology of justice: a) by extreme positivist ideology, I mean that according to which laws must be obeyed as such because they are just (theory of active obedience); b) by moderate positivist ideology, I mean that according to which laws must be obeyed as such because legality itself, by itself, guarantees the realization of the specific value of law, namely, the value of order or of social peace (theory of conditional obedience); c) by extreme natural law ideology, I mean that according to which laws must be obeyed only as long as they are just, and since not all laws by the mere fact of being valid are also just, there is a right to disobedience in all men (theory of active disobedience or of resistance); d) by moderate natural law ideology, I mean that according to which laws can be unjust, but should be obeyed, nevertheless, except in extreme cases (theory of conditional disobedience or passive obedience). While it is undeniable that the two extreme versions, more precisely the ones of active obedience and of active disobedience, are antithetical and constitute an alternative, on the other hand, the two moderate versions - that of conditional obedience and that of conditional obedience - are convergent, and the dividing line between positivist ideology and natural law ideology on this level is increasingly blurred. So, both moderate positivist theory - according to which laws should be obeyed because obedience to laws has in itself a positive value for social order - and moderate natural law theory - according to which laws may be disobeyed only if disobedience #### 6. Relationship between natural law and legal positivism as general theories of law. - In a different way the problem of the relationship between legal positivism and natural law is posed when both are taken into account and contrasted, not as ideologies, but as general theories of law, that is, as ways of understanding and explaining the legal phenomenon. In this contrast, we are dealing with the old distinction between a voluntarist conception (*ratione imperii*) and a rationalist conception (*imperio rationis*) of law. Legal positivism, championed by jurists, is not an extolling of the State as a moral force; it has nothing to do with the cult of the State; simply, it is the theoretical elaboration - one could say the dogmatic elaboration - of legal voluntarism. Once law has been understood as the will of the sovereign, the dogmas of the supremacy of law over other sources and of the norm as an imperative, the invocation of tacit will to justify custom, presumed will to justify the extension of the system beyond express formulas, follow. - Analogously, if one considers, without prejudice, the history of natural law, observes that natural law doctrines do not always coincide - as modern lawyers, defenders of natural law, would have us believe - with an ethics of resistance to oppression, of the defense of the individual against the claims of the State, of individual liberty against servile submission to law, of autonomy against heteronomy. Under the protective arms of natural law, in turn, different moralities, depending on the times and circumstances, have found refuge - a morality of authority as well as a morality of freedom; both the equality of all men and the necessity of the system of slavery were proclaimed; both the excellence of individual property and the excellence of the community of goods, both the right of resistance and the duty of obedience. - It has been demonstrated recently, with texts in sight, that one of the most hardened opponents of natural law, Burke, was in fact a convinced natural lawyer. Reverting perspectives and claims of modern restorers of natural law, who praise their services in favor of the cause of liberty, Pietro Piovani wrote a book where he claims exactly the contrary, that is, that natural law has always been, by its very nature and cannot be anything else, an ethics *of law* opposed to the ethics of liberty, and, as such, must forever be considered, without possibility of appeal, as the truly dry branch of the philosophy of law.4 - How can we explain such diverse and opposite interpretations? And especially, how can we explain that both are called naturalists? In my opinion, this can be explained only in one way: realizing that what unites the opposing doctrines that have been called and continue to be called naturalists is not a morality or an ideology of justice (we have seen that moralities predicated under the label of the laws of nature are very diverse), but a theory of morality (...or of law), that is, that theory according to which the foundation of human rules of conduct should not be sought in the will of the legislator (divine and human) - an inherently mutable entity - but in human nature, which is constant, uniform, eternal. Natural law is one of the recurring ways in which an objectivist theory of ethics is presented. It is understood that when one seeks a common ethics for all naturalists, one does not find it and fail to find it, one gets entangled in the confusion of distinctions between true and false naturalists, between genuine natural law and apparent natural law; this happens because natural law is interpreted as something it is not, that is (I repeat) as a specific system of values and prescriptions, while it is a set of more or less realistic considerations about human nature, destined to objectively ground a system of values, whatever it may be. Finally, when one realizes that natural law is not a specific morality (as could be, say, Christianity, hedonism, utilitarianism, Marxism), but a way of grounding morality (any morality), one will not be surprised to learn that Burke was a convinced defender of natural law, as were his opponents, and therefore will notbe forced to use false historiographic categories as those that distinguish between false natural law and true natural law; one will have understood that both Burke and his opponents shared the belief that the most valid argument for sustaining one's own ideology was to present it - unlike all other ideologies - as the only one grounded in human nature. At this point we could very well say, sighing: "Oh human nature, how many things have you been able to justify." - But by doing this, we initiate a critique that leaves perfectly intact the validity of the interpretation. #### 7. Relationship between natural law and legal positivism as different modes of approaching the study of law. - Finally, let us analyze the contrast between legal positivism and natural law when we start from the consideration of legal positivism as a way of approaching the study of law, and especially as the method whose characteristic is that, while setting aside any judgments of value, it addresses law as a historical and social fact and studies it scientifically. Only in this meaning does legal positivism have something in common with philosophical positivism; one could say, in fact, that the specific feature of legal positivism in this meaning is the adoption of the positive method for the study of positive law. In this phrase, the term *positive* appears twice, the first time in the sense of philosophical positivism, the second in the sense of legal positivism. - In contrast to legal positivism thus understood, the natural law requirement asserts itself in a different way than in the two paragraphs discussed above. In the first context examined, natural law manifested itself as the requirement to counterpose to a strict ethics of legality (*dura lex sed lex*) an ethics of justice; in the second, the requirement to derive knowledge of law from a constant entity - such as nature - rather than from a historically variable entity - such as the will of the legislator. In this new context, on the contrary, natural law manifests itself as a demand for a valuative definition of law, that is, of a definition that, considering law not as a mere fact, but as something that has (or realizes) value, limits the use of the term law to just law. If in the first context, natural law presents itself as a polemical motive in contrast to ethical formalism, in the second it presents itself more as a counter to scientific formalism, here the polemic is directed against juridical formalism, that is, against the frankly positivist legal claim to distinguish law from non-law without making any reference to the content of legal rules. As you can see, the anti-formalist insistence of natural law operates on three different levels, which it is advisable to keep separate. - In other words, this latter contrast between natural law and legal positivism refers to the dispute as to whether it is advisable to introduce a reference to the end (the common good, justice, peace, etc.) in the definition of law or whether it is preferable to define law by reference to procedures that are susceptible to factual description by which it is created and implemented. It is undeniable that the approach of legal positivism is characterized and conditioned by this second type of definition; and in the same way that this approach is the one that allows legal science to be presented as non-valuative, a characteristic that lawyers boast about when they want to show that they are scientists like all of the others. - With particular reference to the problem of the non-valuative character of legal science, the natural law insistence occasionally asserts itself in a more general way, in the form of the recurrent demand for a "critique of laws". It has been observed, in my opinion with reason, that after having expelled natural law from all traditional positions, no jurist can credibly reject the demand for a critique of laws - which has historically been carried by natural law in its various forms - understanding this critique "as the filter through which conscience cannot but submit every precept that is presented as something wanted by another, but not yet by us".5 - From this point of view, natural law, in contrast to legal positivism, is nothing more than an invitation addressed to the jurist to bear in mind that in the face of law - as in the face of all phenomena of the human community- one can adopt, in addition to the attitude of the scrupulous, impartial, methodical researcher, also the valuative attitude of the critic, and that from the exercise of this second activity depend the change, transformation and evolution of law. What the positivist will still insist on is that critique of laws is different from legal science, because it cannot be practiced with the same rigor, cannot be a "science." But no jurist will be so limited as to maintain that in the face of law there is no other attitude possible than that of the neutrality proper to the scientist. In the legal literature, one distinguishes considerations *de iure condito* from those *de iure condendo* or legislative policy. The problems, in no way idle, raised by the latter, do not strictly refer to their possibility or expediency, but to their scientificity. It remains to be observed that the insistence on the critique of laws does not have any necessary connection with the claim to give a valuative definition of law - of which I have already spoken at the beginning of this paragraph – even if both are presented as two forms of the natural law approach to legal experience: one thing is to say – as it should be said if one adopts a valuative definition of law - that there is no other law than just law; another thing is to say that law must be – in addition to being investigated as a fact – approved or disapproved based on certain values accepted as criteria of evaluation. We shall see below the significance of this distinction.. #### 8. Conclusions - If we now summarize the exposition of the three forms in which we believe that the relationship between natural law and legal positivism has historically been presented, we observe that in these three forms, both behave reciprocally in a very different way. - In the measure in which they are presented as two different ideologies of justice, natural law and legal positivism are incompatible (in their extreme form); moreover, they represent an alternative in the face of which one cannot but choose. Therefore they tend to behave like two contradictory propositions that cannot both be accepted or both rejected. - When they are presented as two different general theories of law, natural law and legal positivism are also incompatible in the sense that one cannot simultaneously maintain the superiority of natural law over positive law and the exclusively of positive law. However, they tend to behave more as two contradictory propositions that cannot be accepted at the same time, even if they can both be rejected: one theory, for example, that would maintain that natural law and positive law are two*species*of the *genus*law, would not be natural law or a positivist, but a tertium quid between the two extremes. - Finally, when they are presented as two different ways of approaching legal experience: the method of taking a position and the method of knowledge, natural law and legal positivism are perfectly compatible since they operate on two different levels; on the one hand, that of the evaluation of the justice of laws with a view to their reform, on the other, the of interpretation of laws with a view to a better systematization and, consequently, a better practical application; in this case, the controversy between the proponents of either position is totally sterile. At most, it can be added that in this third situation, it is possible to find a relationship of conflict when one understands - as we have noted in the previous paragraph - the natural law insistence as a demand for a evaluative definition of law, just as in the first situation (opposition between the two ideologies), it is possible to observe a relationship of convergence, where moderate natural law and moderate positivism meet. This is a further confirmation of the main theme of this work, that is, that relations between natural law and legal positivism - these latter, as it were, fraternal enemies- are very varied and complex. One could say facetiously that when they face each other as ideologies, they are enemies but not brothers; when they face each other as theories they are neither brothers not enemies; when they face each other as different modes of approaching legal experience, they are brothers and not enemies. - If we now return to the starting point, that is, to the definitions of natural law and of legal positivism given in the first paragraph, we come to understand better the different meanings that they take - in the three areas of meeting and disagreement, examined in the three preceding paragraphs and summarized in this one - the aforementioned superiority of natural law, characteristic of natural law, and the aforementioned exclusivity of positive law, characteristic of legal positivism. In the plane of the ideological relationship, the superiority of natural law means that there are rules of conduct whose validity is the foundation of the validity of the rules of positive law and as such, they should be obeyed in preference to the latter. In the plane of the theoretical relationship, the superiority of natural law means that resorting to nature rather than to the will of the legislator offers a more adequate explanation of the legal phenomenon and a more solid basis for constructing a general theory of law. In the methodological level, the superiority of natural law means that if alongside the scientific not-valuative study of law is given space for what is called critique of laws, the best way to carry it out is to use the suggestions that come from the tradition of natural law. <start_of_image> - Analogously, the exclusivity of positive law means, in the first case, that one must obey unconditionally the laws established by the legislator because there are no others superior to them; in the second case that natural law is not a form of law that can be placed on a par with the various forms of positive law; in the third, that positive law is the only object of study of jurisprudence as a science. - One of the goals - and certainly not the last - of this study, which shows the variety and complexity of the relationships between natural law and legal positivism, was to recommend from now on certain caution in attributing to this or that author the merit (or the demerit) of being a natural lawyer or a positivist. As Cattaneo has shown in his study of legal positivism in England,8 authors that were considered as typical representatives of the positivist tradition, turn out - once the proper distinctions are made - to be naturalists in some aspects or to formulate the same demands as naturalists. I believe that the most prudent way of answering the question of whether a certain author is a natural lawyer or a positivist, that is, with a gesture of caution - *“...it depends*.” It depends on the point of view from which one chooses to judge. It may happen that he is positivist from one point of view, and a natural lawyer from another. Where it is useful, I give as an example my own case: in the face of the confrontation of ideologies, where no misrepresentation is possible, I am a natural lawyer; with respect to the method, I am, with equal conviction, a positivist; finally, with respect to the theory of law, I am neither one nor the other. NOTES 1. “*. . .natural law enjoins obedience to all civil laws by virtue of the natural law, which forbids breaking pacts*,” *De Cive*, XIV, 10. 2.. "Legal formalism and ethical formalism." [*Formalismo giuridico e formalismo etico*], cited in note 4 of chapter I. 3. This can be demonstrated, it is understood, by clearly distinguishing two natural law directions, the classical and scholastic one, of which Burke would have been a supporter, and the one of the Enlightenment, of which the hated doctrinaires of the revolution were supporters. And yet all of them invoked the same entity, the complaisant nature. I refer to the book by P. J. Stanlis, *Edmund Burke and the natural law*, Ann Arbor, The University of Michigan Press, 1958. 4. P. Piovani, *Giusnaturalismo ed etica moderna*, Bari, Laterza, 1961. 5. This same question is posed by Fassò in the study "What do we mean by natural law?" [*Che cosa intendiamo con diritto naturale*], in *Rivista trimestrale di diritto e procedura civile*, XV, 1961, pp. 168-190, with respect to recent “wanderings” of naturalists with historicism, and responds with an exhortation to terminological clarity, which is also to intellectual honesty. 6. On this and other points of natural law as a general theory of law, A. Passerin D’Entrèves has called attention again, particularly, in *La dottrina del diritto naturale*, Milan, Comunità, 1954, p. 83 ff. 7. A. E. Cammarata, “*Natural law and critique of laws in relation to the distinction between justice and equity*” [*Giusnaturalismo e critica delle leggi in rapporto alla distinzione tra giustizia ed equità*] , in *Bolletino del’ Istituto di Filosofia del Diritto*, R. Università di Roma, II, 1941, note 1, p. 13. 8. M. A. Cattaneo, “*English legal positivism *(Hobbes, Bentham, Austin), Milan, Giuffré, 1962. The following appendix is devoted to critically examining this book. ## Appendix: Other considerations about legal positivism - Most of the jurists of the last century, at least in Europe, have been positivists without knowing it. One began to speak of a more or less well-defined current of “legal positivism”, when the first opponents already considered it finished or exhausted. Then - with the revival of natural law - there has been growing need to historically limit and conceptually define the opposite current of “legal positivism”; in the dispute between attackers and defenders, one has to know, on the one hand, what is wanted to destroy and, on the other, what is wanted to preserve. For a few years now, legal positivism - like natural law in other times - has been transformed into an object of historical research and critical reflection. - Limiting ourselves, for now, to what has happened in Italy, one could begin the phase of reflection with the study by Francesco Carnelutti,