LEGAL POSITIVISM

18TH SENTURY
 LAW AS IT IS

JEREMY BENTHAM JOHN AUSTIN

 MORAL
LAW PRINCIPLES
 + positivists
- positivists

● Does not completely negate the existence of

moral principles
● To some extent, articulates that the law may
be based on the principles of morality and
ethics
JOHN AUSTIN’S
ANALYTICAL JURISPRUDENCE
● Negative Positivist

● Embraces the idea of Law being the sovereign command

● UTILITARIANISM
Primary source of moral rule is the Law of God
Like Thomas Aquinas, Austin also opined that there is a
part of the law of God that is unrevealed and must be
discovered by resorting to reasoning.
JOHN AUSTIN’S
ANALYTICAL JURISPRUDENCE
● TAXONOMY
Attempted to classify all that he opined was the proper subject of jurisprudence,
Divine law,Moral law, Customary laws etc.

Those derived from Authority can be considered as ‘Properly so called’

Laws by analogy are not law per se but are positive morality
Positive Law

● Two kinds of authority

✔ Christian scriptures
✔ Political superior

● The scriptures are known to be the source of divine law

● The political superior is the direct source of human law properly so called as ‘positive
law’
Positive Law

● Three constituents of this concept of Law

✔ Political sovereign - necessary feature of a political society which

considers or claims itself to be independent
✔ Command - an imperative that creates a duty by the presence of
a sanction
✔ Sanction - duty arises from the existence of punishment
Not Imperative

● Declaratory Law - do not go on to form new duties but only clarify or

provide the interpretation of existing legal relations

● Law brought in order to repeal law - impose new duties or they can even
go on to revive some of the former laws

● Law of imperfect Obligation - those laws which do not have any

sanctions attached
Jeremy Bentham

- English jurist and philosopher

- “Greatest figure in history of British Legal
positvism”

LAW= will of the sovereign

According to Bentham….
● LAW regulates the conduct of people to which it
applies
● SOVEREIGN is the highest superior body which does
not owe any obedience to any other body.
● Power of the sovereign is NOT absolute
● Law should be backed by SANCTIONS
Principle of Utility

● According to Bentham, any person is governed by

two masters, that is, PAIN and PLEASURE.

● Every man wants to increase the pleasure and

diminish the pain