Legal Positivism (I)

(Disclaimer: No authorship claim; for class discussion only)

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Contents

I. Meaning and Development of Positivism

II. Proponents of Classical Legal Positivism

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I. Meaning and Development

Legal positivism is a view which claims that a legal system

can be defined independently of evaluative terms or
propositions.

Sometimes legal positivism is understood as the view that

laws must be obeyed, whatever their content.

Legal positivism replaced the notion of Divine law around

the time of the Enlightenment.

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II. Meaning and Development
Development
Legal positivism has a long history and a broad influence.
(UK)
The term “positivism” was introduced, in mediaeval legal
and political thought.
Its most important roots lie in the conventionalist political
philosophies of Hobbes and Hume.
• the roots of this intellectual tradition may be traced to the
thought of the 18th century Scottish philosopher David
Hume. Like positivists, logical positivists seek to eliminate
metaphysics from knowledge statements. Any statement
that cannot be ‘verified’ is metaphysical, and hence has
no cognitive significance.
Its first full elaboration is due to Bentham.
Austin adopted, modified, and popularized it. 4
Development cont’d…

For much of the 19th century an amalgam of Austin’s and

Bentham's views, according to which law is the command of
a sovereign backed by force, dominated legal positivism and
English philosophical reflection about law.

By the mid-twentieth century, the Austinian account had

lost its influence among working legal philosophers. Its
emphasis on legislative institutions was replaced by a focus
on law-applying institutions such as courts, and its insistence
of the role of coercive force gave way to theories
emphasizing the systematic and normative character of law.

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The concept of positivism

Positivism, as a philosophical method, is also known as

empiricism.

Auguste Comte (1798–1857) is regarded by many as the first

true positivist. He sought to expel metaphysics (unverified
belief systems) from the study of society.

Comte argued that we can truly understand the nature and

functioning of society only by the scientific method of
empirical observation, theory construction and verification.

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The concept of positivism
Comte believed that our ways of thinking about the world
have evolved through three stages: the theological,
metaphysical and scientific.
In the beginning, people conceived of the world as divinely
ordained. The authority of rulers in such a world is
subordinate to divine will.
In the metaphysical age that commenced after the French
Revolution, the will of God was replaced by notions of
natural rights.
According to this worldview, people have rights by virtue of being
born human, and these rights must not be abrogated by human
rulers. Thus, the French philosopher Jean-Jacques Rousseau began
his famous book The Social Contract with the words ‘Man is born free
but everywhere is in chains’ (1968 (1762), 165). The existence of
natural rights, though, is a moral claim that cannot be proved or
disproved.

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The concept of positivism

In the modern era, many people turn away from

metaphysics to find answers to questions by scientific study
of the observable world. This is positivism.

If you want to know the law concerning murder you try to
find the law as it is authoritatively stated, or as it is actually
enforced, as opposed to what the law ought to be.

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The concept of positivism

Logical positivism:

According to Hume, a statement makes sense only if: (a) it is

true in the purely formal or abstract sense; or (b) it reports a
fact or scientific law that can be verified by experience or
experiment.

Hume in this passage was referring to the two forms of

scientific knowledge that philosophers today call analytic
and synthetic.

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The concept of positivism

Analytic knowledge is abstract or formal. Mathematics and

logic are its two branches. A statement is true in the analytic
sense if it is mathematically or logically correct within a
given set of axioms.

Synthetic knowledge is of two kinds. It may be knowledge

about a particular physical fact, or it may be a theory about
cause and effect in the physical world.

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The concept of positivism

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The concept of positivism

Legal positivism aims to identify the law as it is. This may

seem easy, but is not.

what do we mean by law?

Scientific laws are theories about the natural world – why

things happen the way they do.

The law that concerns us is of a very different kind: namely,

law that tells people what they may do, must do or must not
do. We may call this ‘normative law’.
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The concept of positivism
There are many types of normative law: religious laws,
moral laws, customary laws and laws of etiquette.

Legal positivists offer theories on how we may distinguish

law ‘in the legal sense’ from laws in the non-legal sense.

These theories generally attribute the property of law only

to those rules that are derived from a law making authority
existing as a political or social fact.

A rule may be universally observed in a society but will not

be a law in the legal positivist’s book unless it is made or
recognised by established authority.
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The concept of positivism
Legal positivism: law has no necessary connection to
morality, although often enough the law will express the
morality of the people it regulates.
The norm ‘Do not kill’ is both a moral rule and a legal rule.
Kelsen: a legal rule and a moral rule are distinct, though they may
often coincide in content.

The moral rule is moral because of its content. It is derived

from a higher or more general moral principle. In contrast,
the legal rule is legal not owing to its content but ‘only
because it has been constituted in a particular fashion, born
of a definite procedure and a definite rule of law’.

Conversely, a morally repugnant rule will be a law if it has

been made according to the established procedures and
criteria of validity.
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The concept of positivism
From morality to law:
The morality of a community may enter the law in several
ways, but legal positivists insist that in each such case
morality has legal force only because a competent authority
such as a parliament or a court has converted the moral rule
into a legal rule.

A legal system may authorise a court to dispense justice

according to some general notion of morality, without
actually laying down specific moral rules that the court must
apply.

The legal positivists have no difficulty in regarding equitable

rules as law, as they are made by authorised law makers.
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The concept of positivism
The open texture of language leaves judges with a measure
of discretion in deciding cases.
--Many laws are clear and leave little room for judicial
interpretation. A law that fixes the age of voting at 18
years or sets the maximum term of parliament as five
years is hardly contestable.
-- Most laws, though, are not of this type, but concern
rules of conduct. It is not possible to devise a legal rule
concerning conduct that resolves all future questions
without going into endless detail. Such an infinitely
complex law, if it can be written down, will be
incomprehensible. This means that legal rules often
leave grey areas (penumbras of uncertainty) where
judicial discretion plays a decisive role. Legal positivists
such as Hart think that in such cases the court acts as a
legislator with the authority of parliament.
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The concept of positivism

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II. Proponents

Jeremy Bentham (1748-1832)

John Austin (1790-1859)

Predecessors
Thomas Hobbes - Born in Fear (a state is essential)
C. David Hume - The Artifice of Justice (is and ought to be)

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Thomas Hobbes (1588-1679)
Thomas Hobbes and Leviathan

The idea that the ruler’s will is law (voluntas principis) recurs
throughout the history of Western political thought. It was
particularly influential in the 16th and 17th centuries, during
which the feudal kingships of western Europe were
transformed into absolute monarchies.
Monarchs claimed the right to absolute political power by
divine right. France’s Louis XIV famously declared ‘L’´etat,
c’est moi’ (I am the state).
The absolutist theories were not about law but about
political power. They claimed that the monarch might
make law at will. They did not say that customary law and
natural law were fictitious, only that the monarch’s
judgment was final on all questions of law.
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Thomas Hobbes (1588-1679)
Hobbes concluded from his observation of human nature
that people will be in perpetual conflict unless they are
subject to a supreme political authority.

Hobbes: sovereignty can be destroyed not only by the

subjugation of the nation by a foreign power but also by the
sovereign’s own corruption.

Hobbes’ sovereign is not necessarily an individual. It could

be a group or even an elected parliament. A sovereign
(whether one or many), when ruled by passion or ignorance,
may govern in its own interests or prove too incompetent to
protect the interests of its subjects.
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Jeremy Bentham (1748–1832)
The English jurist and philosopher Jeremy Bentham (1748–
1832) is the greatest historical figure in British legal
positivism.
In An Introduction to the Principles of Morals and
Legislation Bentham laid the groundwork for a theory of law
as the expressed will of a sovereign.
Of Laws in General. Substantially completed in 1782, but
only published in definitive form much later. Of Laws in
General is a work of outstanding originality and importance
in the field of jurisprudence.
Jeremy Bentham became disillusioned with the law. He
spent his life criticising the existing law and suggesting ways
for its improvement.

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 Bentham cont’d…
Bentham was a radical critique of society, which aimed to test
the usefulness of existing institutions, practices and beliefs
against an objective evaluative standard.
He was an outspoken advocate of law reform, a pugnacious
critic of established political doctrines like natural law and
contractarianism, and the first to produce a utilitarian
justification for democracy.
He also had much to say of note on subjects as diverse as
prison reform, religion, poor relief, international law, and
animal welfare. A visionary far ahead of his time, he advocated
universal suffrage and the decriminalisation of homosexuality.

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Bentham
Contempt for the common law:
In his own country the law, as commonly understood, was
found mainly in the form of common law that was not the
creation of a political sovereign.

Bentham regarded this authorless, unpromulgated and

uncodified body of rules that made up English law as being
unworthy of the name ‘law’.

He dismissed similarly the idea of a higher natural law. He

called such law ‘an obscure phantom, which, in the
imaginations of those who go in chase of it, points
sometimes to manners, sometimes to laws; sometime to
what the law is, sometimes to what the law ought to be’. 23
Bentham
• Bentham: a system of law that derives its rules exclusively
from the clearly expressed legislative will of a sovereign will
produce clearer and more certain laws than the rules
generated by the common law system.

• His preference for legislation was grounded in utilitarian

moral philosophy, of which he was a principal instigator.

• Bentham: a system of law that derives its rules exclusively

from the commands of a sovereign authority, when
measured by the yardstick of public utility, is superior to the
common law system.

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Bentham

• He overestimated the capacity of a comprehensive code to

supply clear answers to novel controversies that are a
permanent feature of our ever changing world.
• (failure of the codification movement in England)
• (Bentham was an enemy of judge-made law)

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Bentham
• Source of law:
• A law is an expression (assemblage of signs) of the will
(volition) of a sovereign within a state.

• Law in this sense requires a state (political order) that

establishes sovereign authority.

• The sovereign may be an elected parliament, an oligarchy, or

even a tyrant who secures the people’s obedience by naked
force.

• Bentham: the sovereign’s power may be limited by

‘transcendent laws’, by which he meant constitutional rules.
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Bentham

• The constitutional rules that constrain the sovereign are

merely rules of positive morality.

• The sovereign prince may set limits on his own power by a

royal covenant (pacta regalia).

• A sovereign’s self-imposed limitations are enforced only by

force of religious or moral sanctions. These forces are no
match for the political will of the sovereign.

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Bentham
• The will of the sovereign:
• The content of the law may be established by the sovereign
by conception or by adoption.
• Conception is where the substance of the law is conceived
by the sovereign itself, as when the Queen in Parliament
enacts a statute that lays down a new rule of conduct.
• Adoption is where the sovereign confers validity on a rule
made by another person.
• This may happen in one of two ways. First, the sovereign may
adopt laws already in existence and made by other persons.
Thus, sovereigns may adopt the laws created by their
predecessors, thereby providing for the continuity of the legal
system. Second, sovereigns may declare that they will adopt
laws made in the future by another person. This is ‘pre-
adoption’. What we call delegated legislation today falls within
this category. This is the case where an Act of Parliament
authorises an official to make laws and bestows validity upon
them.
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Bentham

• Sovereign will becomes law only when it takes the legislative

form. (administrative orders, military commands and judicial
decisions are not laws)

• In the case of Britain, the will of the sovereign always takes

the legislative form.

• The British sovereign is a corporate body comprising the

Crown, the Lords and the Commons.
• He observed: ‘it would be hardly possible for that
complex body to issue any order the issuing of which
would not be looked upon as an act of legislation’.
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Bentham

• What counts as legislation (and hence as law by Bentham’s

definition) depends not on the nature of the act but on local
usage and understanding as to what constitutes a legislative
act.
• Bentham regarded a royal decree of the absolute
monarch of France, to banish a citizen or to send him to
the Bastille, not as an act of legislation but as a judicial act
or a preventive order of the executive.

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Critique on Bentham

Joseph Raz identifies a number of defects in Bentham’s

analysis of sovereignty, including the fact that it does not:
● fully explain divided sovereignty;
● account for the relationship between the various powers
which constitute the single sovereign power;
● explain how sovereignty can be limited by the law; or
● explain how to decide whether a certain legal power is part
of a sovereign power.

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John Austin

• In 1832, 50 years after Bentham’s Of Laws in General was

completed, John Austin published The Province of
Jurisprudence Determined.
• In 1819 Austin moved to London from Suffolk with his family
and became a neighbor of Bentham and James Mill, the
pioneers of utilitarianism.

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John Austin
• Utilitarianism:
• Bentham’s moral theory was wholly materialistic.
• God’s will is unknowable and what can be gathered from the
scriptures is only ‘that which is presumed to be his will on
account of the conformity of its dictates to those of some
other principle’.
• Bentham rejected the notion that the scriptures were a
source of law. Conversely, Austin regarded the law of God as
revealed in the scriptures to be a primary source of moral
rules. He accorded to these laws the status of ‘laws properly
so called’.
• Austin thought, there is a part of the law of God that is
unrevealed and must be discovered through reason.
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John Austin
• As God wills the greatest happiness of all his creatures,
reason leads us to the principle of utility.
• Austin reasoned that aggregate happiness is served by
identifying the law with sovereign will.
• However, he was unwilling to exclude from the category of
‘law’ the moral dictates of the scriptures. Hence, he created
a sub-set of ‘laws properly so called’ – named ‘positive law’ –
to signify laws made by the sovereign and its delegates.
• Positive law is the only concern of jurisprudence. Positive
law or ‘the law simply and strictly so called’ is the ‘law set by
political superiors to political inferiors’ .
• The revealed law of God is the subject of theology.

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John Austin

• Respect for the common law:

• Judicial law making is not only inevitable but is also an
unambiguous public good. His complaint about the judiciary
was not that they legislated but that they legislated too
cautiously.
• Austin rightly rejected the robotic view of the judicial
function. The world is simply too complex and dynamic
for the law to be exclusively the product of a legislature
whose members are preoccupied with immediate affairs
of state and electoral politics.

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John Austin

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John Austin

• Sovereign:
• Austin: Or the notions of sovereignty and independent
political society may be expressed concisely thus. – If a
determinate human superior, not in a habit of obedience to
a like superior, receive habitual obedience from the bulk of a
given society, that determinate superior is sovereign in that
society, and the society (including the superior) is a society
political and independent.

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John Austin

• A sovereign possesses five essential attributes:

• 1. The sovereign is a determinate human superior.
• It may consist of a single person, as in an absolute
monarchy, or a group of persons, such as the Crown,
Lords and Commons in the United Kingdom.
• The sovereign must not only be determinate, it must be
human. The law of God as revealed in the scriptures,
according to Austin, is law properly so called but is not
positive law, as it is not promulgated by a human superior.

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John Austin

• 2. The bulk of the people habitually obey the sovereign.

• If each warring section of the society habitually obeys its
own separate political superior, the original society is no
longer one but two independent societies.
• There is no Austinian positive law until the supremacy of
one faction or the other is established.

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John Austin
• 3. The sovereign is not in the habit of obedience to any other
human superior.
• The monarch of a kingdom within an empire, or the
government of a state or province within a federation, will
not be sovereign, because its authority is subject to the
will of a superior.

• 4. The sovereign’s power cannot be legally limited.

• It cannot be limited by positive law, although it may be
constrained by positive morality. Austin maintained that
constitutional rules are rules of positive morality that the
sovereign may disregard. (UK’s constitution?)
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John Austin

• 5. Sovereignty is indivisible.
• The notion of a divided sovereign is absurd. However, in
many modern states power is divided among the
legislative, executive and judicial branches of
government.
• Power is also divided territorially in the case of
federations. There is much overlap and power sharing
among the branches, and under the constitutions of many
countries no one branch appears supreme. But not so in
Austin’s view. In Austinian theory judicial and executive
actions are simply different ways of executing sovereign
commands. Officials and judges are mere delegates or
ministers of the ultimate law making body, the legislature.
• what about the US?
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John Austin
• Command, duty, sanction:
• Positive law is produced by a sovereign’s command.
• A command is not a request but an imperative that creates a
duty by the presence of a sanction.
• A command involves: (1) a wish or desire conceived by a
rational being that another rational being shall do or
forbear; (2) an evil in case of noncompliance; and (3)
intimation of the wish by words or other signs.
• A command cannot be separated from duty and sanction.
They are aspects of a single event. Where there is a duty
there is a command, and where there is a command there is
a duty. In each case the duty arises from the existence of a
sanction for breach.
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John Austin

• Law and morality:

• Austin distinguished positive law from positive morality.
• What happens when a rule of positive law offends a rule of
positive morality?
• In Austin’s view, the legal answer is that positive law
prevails. The political answer depends on how the conflict
plays out in society.
• There are occasions when a rule of positive law is so
obnoxious to the moral sense of the society that its
enforcement is successfully resisted. In such instances the
rule remains legally valid but is without practical effect.

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Critique on Austin

• Wacks:
• Although he does occasionally suggest that the existence of
a sanction supplies the motivation for obedience, his
analysis of sanctions attempts to show that, in a purely
formal sense, where there is a duty there is normally a
sanction. In other words, he is not necessarily seeking to
provide an explanation for why law is obeyed or whether it
ought to be obeyed, but rather when a legal duty exists.

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