INSTITUTE OF LAW, NIRMA UNIVERSITY

BOOK CHAPTER REVIEW

Submitted by
Muskan Tandon
Division -B, Roll No- 21bal119

SEMESTER 3

Under the guidance of

Anubhuti Dungdung
Assistant Professor at Institute of Law, Nirma University

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BOOK CHAPTER REVIEW

DIAS JURISPRUDENCE. By Reginald Walter Michael.” London:

Butterworths,2017.$13(paper).ISBN: 9788180389924

Muskan Tandon

21bal119

(1147)

Reginald Walter Michael was a legal scholar, researcher and teacher. He is known for his
leading works on jurisprudence and the law of tort. He is best known for his work Dias on
Jurisprudence. The chapter Positivism: British theories talks that Although the State as a
political organisation existed in some capacity from the earliest phases of communal life, it
experienced modifications, just like every other social institution, because no idea of the
"State" exists in a vacuum. The idea of Natural Law, which predominated in antiquity, was
moral and ethical, whereas the State, which predominated in the Middle Ages, had religious
undertones. The natural philosophy of the sixteenth and seventeenth centuries contributed to
the rise in popularity of the concept of the "State" as a moral and ethical conception.

In this chapter, Author has basically talked about,

1. Natural Law and Analytical Positivism vis-à-vis state, sovereignty and written
constitutions.
2. State of English Jurisprudence by various scholars.
3. Objection to ‘is/ought’ distinction.
4. Source of law is will of sovereign.
5. Individuality of Law.

This chapter explores an overarching theme that has run through Anglophone legal
theory since the seventeenth century. In modern Anglophone law, the term
"positivism" is disputed. The tale would be quite condensed if we were to start with
Hart and use the key tenets of modern legal positivism to identify the major players in
their tradition. Thus, this article does not trace the evolution of a unified
jurisprudential tradition but rather sketches broadly the evolution of Anglophone legal

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 philosophy since Hobbes. But it starts with a brief discussion of the "thetic" tradition
of legal theory in late mediaeval jurisprudence and in the application and theory of
English common law, and it ends with a discussion of Salmond and other jurists from
the 20th century who paved the way for Hart's modern interpretation of legal
positivism.

British legal positivists view the law as a "social reality," which means that it may be
discovered in society's actual institutions or practises. Despite their major differences,
legal positivists are united in their desire to provide people an accurate understanding
of the law. According to Author, the following are the major themes:
 Human agents are the ones who create law. Even custom, if it is not acknowledged
and upheld by a human authority, is not law.
 It is possible to discern between the law as it is and ideas of what the law should be.
Social fact is law. It may be discovered in the regulations issued by institutions like
legislators and courts, as well as in the real actions of those who enforce the law.

Austin: He strongly drew from the thetic heritage, notably Hobbes (and via him,
Bodin), without understanding how Bentham had transformed that tradition.Although
Austin's view of the law lacks any originality, he (and his supporters in the nineteenth
century) staged significant change in English jurisprudence, the ramifications of
which may still be seen in post-Hartian positivism.According to Austin, law is
considered to be the sovereign's command in a state when it is "properly so-
called."When someone who has the power to command and is not subject to anybody
else's order expresses a request for the behaviour of a group of people and a desire to
punish those who disobey, law is established. Instead of providing an explanation of
positive law, Austin presented this as a definition of law. The judicial province's
border stone delineated what Austin considered to be the exclusive proper topic for
English law students.
Bentham: He constructed a comprehensive public philosophy on the idea of
usefulness, with his principle of publicity at its core.  He believed that practical
principles may direct acts in the area of social life, which is where the concept of
usefulness was largely addressed.effectively only if they are understandable to the
general audience. According to Bentham, the main function of law is to safeguard the

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expectations of logical people who interact in intricate social networks. He believed
that English common law utterly failed to satisfy utility-serving publicity's
requirements. Alleged common law "laws" were really "inferential entities," the result
of private speculation, and were not based on historical patterns of court judgments.
He came up with a three-part plan for his legal philosophy. The content of law was
fixed in a code that was articulated in accordance with principles of "natural," utility-
manifesting arrangement, and he designed a complex set of institutions for the
application, interpretation, and adjustment of this code. He derived his general
conception of law from the thetic tradition.
H L A Hart: He had the following stance while discussing the law. He claims that
"where there is law, human behaviour is constituted in some way non-optional or
compulsory."A rule is therefore based on the concept of duty. In the opening chapter
of his work, he criticises Austin's command theory. The concept of command can
explain a forceful order given to someone in a unique situation, but not why a law
applies generally and especially to its authors. Second, there are several additional
types of laws, most notably powers. Thirdly, the continuation of current laws cannot
be justified on the basis of command; as it was noted, he was able to entirely dispel
the idea of "tacit command." Fourthly, Austin's "habit of obedience" is insufficient to
explain the transfer of power since it ignores significant distinctions between "habit"
and "rule." Habits call for merely routine behaviour, which is insufficient for a rule. A
rule has a "internal aspect," meaning that individuals use it as a benchmark to evaluate
and decry transgressions.

If this study were to be conducted after 1980, it would be clear that concerns
concerning the position, function, and growth of jurisprudence within the English law
faculties did not simply go away. If anything, English jurists improved at
daydreaming about their field. " This does not imply that English law stayed the same.
H.L.A. Hart's idea of legal positivism introduced jurisprudence to a novel intellectual
problem that continues to occupy legal philosophers today—especially, it must be
stated, American legal philosophers.We have not been interested in this tale—the
story of Hart and his legacy. Instead, we have focused on a time when English
academic lawyers were mostly inert in the development of jurisprudence.

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The Chapter has made an effort to shed light on the connection between positivist
jurisprudence and John Austin's utilitarian ethics. The goal has been to demonstrate
how his ethical ideas link to his notions of law and sovereignty in particular. They are
fundamental tenets of his legal system, the justification for which is not at all clear.
It has been argued that utilitarian reasoning' effects provide a solid justification for
these ideas. Because they were most likely affected by his belief in the value of orders
and sovereigns with unrestricted legal authority. This option deserves, at the very
least, greater study than it has received thus far.