THEORIES OF LEGAL POSITIVISM

NOTE: THESE NOTES ARE NOT TO BE CITED IN FORMAL ASSESSMENTS;

THEY ARE MEANT TO ENABLE UNDERSTANDING. THE VAN BLERK AND
OTHER ACADEMIC TEXTS ARE THE MAIN SOURCES OF THE THEORY OF
LEGAL POSITIVISM.

According to legal positivism, law is not a set of propositions that can be derived by
reasoning from the nature of things as the natural lawyers argued. So legal
positivism can be understood as a direct response to, and rejection of, natural law.
(Harris 2004:59)

Jeremy Bentham – the command theory and utilitarianism

The English philosopher Jeremy Bentham provides the first clear elaboration of legal
positivism / positivism begins mainly in his work (specifically the command theory of
law which is later taken further by John Austin).

Key works include A Fragment of Government; Introduction to the Principles of Morals and
Legislation; The Limits of Jurisprudence Defined and Of Laws In General.

Specifically noted for calling natural law “rhetorical nonsense” or “nonsense upon stilts”. For
him natural law is to be blamed for the confusion between law as it is and law as it ought to
be.

Bentham is also known for introducing the principle of utility (utilitarianism) which holds that
“every act of law should be judged, as to its goodness or badness, solely by reference to its
consequences in terms of human happiness”.

For him law should be defined i.t.o fact, the political facts of power, human prescriptions and
rewards. This understanding of law could help develop a scientific and logical theory of law
based on the principle of utility.

According to Bentham, law can be analytically reduced to a “logic of the will” in which every
human act could be seen as either commanded or prohibited, or not commanded nor
prohibited by the law. If the act is commanded, it is the subject of a legal duty.

John Austin – the command theory

The Province of Jurisprudence Determined (1832) – the standard source for his
explanation of the command theory of law (also called the “imperative theory of law”).
Here he extends and popularises Bentham’s theory.

In this theory, law is the command of the sovereign, backed up by a threat/sanction (on
the illimitable sovereign, cf: Hobbes).

The sovereign was identified by the fact that he was obeyed, and his commands were those
‘facts’ which people call law.

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Law as commands

Austin is concerned with the proper ‘province’ (meaning ambit, territory or domain) of
jurisprudence.

The first step in this determination is to exclude everything which was not a command that
was deliberately laid down (thus customary laws (i.e. laws developed via custom/convention
were excluded from the province of jurisprudence).

The second step is to exclude those commands which were not laws. Only general
commands (“a command that obliges generally to acts of a class”) = laws properly so called
(NOT laws that focused on particular or specific subjects or acts).

The third and final step is to exclude all those laws properly so-called which are not positive
laws; that is, those laws properly so called that were not laid down by the sovereign/or his
subordinates (this excludes divine laws and laws of private persons).

[Thus for him, only positive laws are to be included in the province of jurisprudence – so
when we speak of “law” in the Austinian sense, we are only speaking of this positive law.
The only exceptions to this are: (1) declarative laws, (2) repealing laws and (3) imperfect
laws].

So the second aspect of a command is that it must be accompanied by the power and
promise of punishment/threat/sanction. The legal duty arises when the sovereign has
expressed a wish (i.e.: issued a command) and when he has the power and purpose to inflict
and evil (sanction) [NOTE: this theory is incomplete because Austin clearly recognises
‘imperfect laws’, which are laws prescribing acts but without a sanction.

[What about laws re: wills and contracts? They do not impose sanctions. Austin would reply
that the formalities of those laws are the commands and the nullity that arises when one fails
to meet them is the sanction.]

The sovereign

Another element that Austin stipulates as being a key element of the proper province of
jurisprudence is that of the sovereign (the identifiable political superior who makes the wish
and has the power to carry out the threat).

This meaning of sovereign is not the same as that used in relation to parliamentary
sovereignty or state sovereignty.

For Austin, the sovereign is a pre-legal political fact in terms of which law and legal concepts
are definable. He defines the sovereign as a person/body who receives habitual obedience
within a particular society and renders habitual obedience to no one else (the sovereign has
no higher authority to answer to). He is the creator of law; not the creature of law.
Sovereignty thus has two elements (1) society habitually obeys or submits to a determinate
and common superior (a person or body of persons) and (2) that superior has no other
superior.

Since legal concepts are defined i.t.o the sovereign’s commands, there can be no legal
limitation on, or division of, the sovereign’s power. Thus, the sovereign cannot be bound by

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the laws of previous sovereigns. There is thus no continuity of law from one sovereign to
another – anything which a former sovereign commanded can only be law if the present
sovereign has re-commanded it.

The judge in this view is merely a delegate of the sovereign.

NOTE: critiques of Austin’s illimitable sovereign.

HLA Hart – law as rules

Main Texts: The Concept of Law (1961) and the Harv LR article Positivism and the
Separation of Law and Morals.

Rejects the idea of law as command, saying it distorts the social function of different laws –
in favour of a concept of law based on ‘rules’ – specifically his understanding of legal rules
as social rules.

When a social group/society is said to have a rule/is said to be governed by law, two things
apply:

(1) The members of that group perform certain actions (external aspect of the rule). If
this was all, this would just be a habit.
(2) There must in the second place be an internal aspect – a critical reflective attitude –
shared by members of the group towards the conduct in question (this is when
members of the group criticise those who deviate from those rules or when they
demand conformity with those rules. They do this using normative vocabulary: i.e.
language that prescribes right and wrong).

These are social rules

Other rules of course exist: rules which impose obligations. The obligation-imposing rules
differ from other rules in two respects: (1) associates with some important feature of social
life and (2) what they require may conflict with people’s interests.

But a society needs more than obligation rules in order to cope with change, to address
disputed questions and to determine which rules are obligation rules and which are not.
Specifically Hart notes that for a society to move from pre-legal to legal, obligation rules
(PRIMARY RULES which govern conduct) must be supplemented by rules of change,
adjudication, and recognition (SECONDARY RULES which govern the procedures by which
primary rules operate).1 A legal system must have both primary rules (which impose
obligations) and secondary rules (which do not impose obligations as they are power-
conferring rules).

This union of primary and secondary rules is at the heart of the legal system for Hart.

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Rules of change = rules determining the procedure for the amendment/repeal of laws;
Rules of adjudication determine how legal disputes are to be resolved; Rules of
recognition, arguably the most NB, establish the criteria to determine what rules are
legally valid as rules. A law is law only via the rule of recognition. In other words, the
rules of recognition tell us what the primary rules are.

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The rules of recognition establish factual criteria for establishing what law is valid. The rules
of recognition are thus central to establishing the distinction between law (only the rules that
pass the validity test of rule of recognition) and morality.

Note however that a key concept in Hart is the notion of the penumbra – the case
where a judge may refer to substantive moral values beyond the law to reach/justify a
decision (this is case where the rules have run out – where no valid legal rules exist –
where there is uncertainty) [Cf: Ronald Dworkin’s views contra Hart]. It is this open
space that Hart leaves for the penumbral cases that we could classify his theory as
soft positivism (i.e. the distinction between law and morality holds only until the rules
run out and then, the judge has some discretion in legal interpretation).

Gaps in the normative aspect of Hart’s legal positivist theory were addressed by one of his
students and followers Joseph Raz (In SA there are Razian positivists like UCT Prof Anton
Fagan continuing this tradition of legal positivism and applying it to SA context).

Note: Compare Hart’s rule of recognition and Kelsen’s Grundnorm (or basic norm) –
both used to establish legal validity - Hart works by criteria / Kelsen works from the
historically first constitution.

Hans Kelsen – the pure theory of law

Author of Introductions to the Problems of Legal Theory; General Theory of Law and the
State; The Pure Theory of Law; General Theory of Norms.

His theory concerns developing a legal science capable of describing positive law.

For him law (legality and illegality) can be described/conveyed without reference to morality,
politics and sociology (this is what is meant by pure and this purity is the basic
methodological starting point).

Why “pure’’?

It is not the business of the science of law to approve or disapprove of its subjects

Kelsen wants to isolate the norms of positive law, which were the proper subject of objective
legal-scientific description, and then define only the legal aspect of those norms. In other
words he is interested in a theory of law that is not clouded by methods and concepts that
aren’t purely legal. For this we need to develop a framework/science form which law can be
independently applied.

Legal norms provide that if certain conduct was performed an official should apply some
measure of coercion (i.e. If A does b, then C should do D) – this will be clarified later but for
Kelsen law/legal norms should be seen as a direction to officials (judges, police etc.) to take
a particular action upon the occurrence of a particular event [The meaning of ‘ought’ in
Kelsen is not moral; it is legal].

Lawyers can only describe norms scientifically - they can only say that something is illegal or
not (in other words, that there is coercion stipulated). Whether it should be illegal; or whether
it is right or wrong is not the business of an objective legal science. Thus Kelsen rejects
descriptions/explanations of law rooted in the purpose or function of law, the intention of the

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legislature or the social function of law – these are psychological or political matters and
would, if considered, contaminate the purity of law.

In short, the pure theory of law states that positive law should be viewed as a system of
norms stipulating that, under certain conditions, a coercive measure is to be applied. Only
such legal norms where a condition/coercive measure is stated are legally relevant. The rest
is legally irrelevant.

Sanctions

For Kelsen, legal norms are addressed to officials – directing them on what steps to take
when something happens. A norm is valid (and thus effective) if (1) it is obeyed and (2) if it is
disobeyed, a sanction is prescribed (in other words, effectiveness is a condition of validity of
a legal norm).

Kelsen’s views on legal norms underwent numerous changes from Reine Rechtslehre to
General Theory of Norms.

The basic norm (or the Grundnorm)

“The Grundnnorm is the starting point of legal norms. It is at the apex of the hierarchy
of legal norms and is the original source of authorisation for the decisions and actions
taken throughout the system, down to its lowest level”. (Van Blerk 1996:48)

For Kelsen, law is a system of norms. For a legal norm to be valid, it must be part of the
system. That is to say that the reason for the validity of a norm is always another norm.

The validity of a norm is traced back to a historical-starting point for norm creation, beyond
which the chain of validation cannot go. The last norm in this chain is the Grundnorm/the
basic norms (e.g. bylaw A is valid because of statute B which is valid because of constitution
C which is valid because of the historically first constitution D – in this chain, D is the
Grundnorn; is the norm that grounds the entire legal order).

This Grundnorm validates and authorises the creation of all legal rules. It presupposes the
validity of the constitution (i.e., it is not the constitution).

It should be clear then that the Grundnorm is a hypothetical construct (or in Kelsen’s words
“a fiction”).

REISSUED 2023