BACKGROUND
Legal positivism is a legal theory that holds the validity and legitimacy of laws. It is determined by their enactment by recognized governmental authorities. At various times and places, “Jurists have made their approaches to studying law from different angles.
They have defined law, determined its sources and nature, and discussed its purpose and ends. For clarity and convenience in understanding their points of view, the jurists are divided into different schools based on their approaches to law.
DEFINITION OF LEGAL POSITIVISM
According to Black’s Law Dictionary,
The legal rules are valid only because they are enacted by an existing political authority or accepted as binding in a given society, not because they are grounded in morality or natural law.
FATHER OF APPROACH
John Austin is considered the father of the new approach; he owed much to Bentham, and on many points, his propositions were no more than a “paraphrasing of Bentham’s theory.
INVENTION OF THE TERM “POSITIVISM”
The term positivism was invented by “Auguste Comte”, a French thinker.
CHARACTERISTICS OF “LEGAL POSITIVISM”
Prof. Hart points out that “positivism” has the following features.
1. Laws are Commands
This is associated with Bentham and Austin, the founders of British positivism.
2. Analysis of Legal Concepts
The analysis of legal concepts is worth pursuing, distinct from sociological and historical inquiries and critical evaluation.
3. Decisions should be logical
The decisions can be deduced logically from predetermined rules without recourse to social aims, policy, or morality.
4. Moral Judgments
Moral judgments cannot be established or defended by rational argument, evidence, or proof
5. Separation of law
As it is laid down, the law has to be kept separate from the regulation that ought to be. It is the characteristic that seems to be currently associated with positivism. It may spring from a love of order, which aims to clarify legal concepts and their orderly presentation.
CHIEF EXPONENTS OF THE POSITIVE THEORY
The following are the chief exponents of the positives of Analytical Schools in England.
- Bentham
- Austin
- Sir William Mark (1829-1914)
- Sheldon Amos (1835-1886)
- Holland (1835-1926)
- Salmond (1862-1924)
- Prof. H.L.A. Hart (1907)
This school received encouragement in the United States from Gray and Hohfeld and on the continent of Europe from Kelsen, Korkunov, and others.
ELEMENTS OF POSITIVE LAW
According to Austin, positive law has four parts. These elements are the following.
- Command
- Sanction
- Duty
- Sovereignty
1. COMMAND
Whenever a command is expressed or intimated, one party signifies a wish that another shall do or forbear; the latter is obnoxious to an evil the former intends to inflict in case it is disregarded.
2. SANCTION
Every sanction properly so-called is an eventual evil annexed to a command.
3. DUTY
Every duty properly so-called supposes a command by which it is created, and a task properly called is obnoxious to evils of the kind. The science of jurisprudence concerns favourable or strictly so-called laws, as considered without regard to their goodness or badness.
4. SOVEREIGN
All positive law is deduced from a determinable law-giver as sovereign. Every positive direction is set by a sovereign or a sovereign body of persons to a member or members of the independent political society where that person or body is sovereign or supreme.
CRITICISM OF LEGAL POSITIVISM
A theory that insists on the facticity of law seems to contribute little to our understanding that law has essential functions in making human life go well, that the rule of law is a prized ideal, and that the language and practice of law are highly moralized.
Accordingly, positivism’s critics maintain that the most essential features of law are not to be found in its source-based character but in law’s capacity to advance the common good, to secure human rights, or to govern with integrity.
CONCLUSION
There appears to be a greater separation between Hart’s concept of law and his positivism than he ever alleges between law and morality. For the limited purpose of identifying laws, his concept seeks to accomplish more than is necessary. To portray law in a continuum it does not go far enough.
FREQUENTLY ASKED QUESTIONS
Discuss in detail legal positivism theory.
(2019-A)
Explain legal positivism concerning its criticism.
(2018-S, 2017-S)
Define the term Legal Positivism. What are the main characteristics of Legal Positivism?
What is Legal Positivism? Also, explain the view of Different Jurists on Legal Positivism.
Discuss Legal Positivism and its leading exponents.
REFERENCES
- Jurisprudence
- N-Series by M.A. Chaudhary
- Black’s Law Dictionary
