INSTRUCTOR: MALIK KALEEM AWAN

L.L.B, UNIVERSITY TOPPER

OVER ALL 2ND POSITION, 2020

ASPIRANT OF CSS

LEGAL POSITIVISM
‘Positivist movement’ started at the beginning of 19th century as a reaction to
the prevailing methods of legal thinking which discarded the actual realities of
law in order to discover the nature and rationale behind principles of universal
validity.
Actual laws were recognized or condemned as per these principles.
Prof. HART describes many meanings of term ‘POSITIVISM’ i.e. Law as
command, Law to be analyzed without sociological and historical inquires,
decisions can based on logical reasoning without recourse to social aims and
public morality, Moral judgments cannot he established or defended by
rational argument, evidence or proof etc.

MAIN PRINCILES OF LEGAL POSITIVISM

JERMY BENTHAM AND JOHN AUSTIN is the main founder of this theory.
Followings are the major consideration of this legal theory.
1- Laws are command of human beings.
2- There is no inevitable link between law and morality, that is between law
as it is and as what it ought to be.
3- Analysis of legal concepts is worthwhile and is to be distinguished from
history or sociology of law, as well as from criticism or appraisal of law, for
example with regard to its moral values or to its social aims and functions.
4- A legal system is a closed, legal system in which correct decisions can be
deduced from pre-determined legal rules without reference to social
considerations
5- Moral judgments, unlike statements of facts, cannot be established or
defended by rational argument, evidence, or proof.
Hence, this theory rejects the claim of natural law’s theories that there is
interlink b/w law and morality.
Main thrust of the jurists of this theory is structural nature of a legal system
and for this purpose; discussion of justice is not only irrelevant but also
dangerously confusing.
Their purpose is to analyze, without reference either to their historical origin or
development or their ethical significance or validity, the first principles of law.

FRIEDMANN, in his book LEGAL THEORY, writes that

“The analytical lawyer is a positivist. He is not concerned with ideals; he takes
law as a given matter created by the state whose authority he does not
question.”
a- The positivist takes law as command of sovereign.
b- It put emphasis on legislation as the source of law.
c- It considers law as closed system of pure facts from which all norms and
values are excluded.

JOHN AUSTIN’S VIEWS ON LEGAL

POSITIVISM
He defined law as “a rule laid down for the guidance of an intelligent being by
an intelligent being having power on him.”
Law is strictly divorced from justice. Instead of being based on ideas of good or
bad, it is based on power of a superior.
Two kinds of law i.e. divine and positive.
Positive laws are here under discussion. Austin says positive law has four
elements i.e. command, sanction, duty and sovereignty.
Every sanction properly so called is an eventual evil annexed to command.
Every duty properly so called supposes a command by which it is created and
duty properly so called is obnoxious to evils of the kind.
Duty and sanction are co-relative terms, the fear or sanction supplying the
motive for obedience.
JERMY BENTHAM’S VIEW ON LEGAL
POSITIVISM
“A law may be defined as assemblage of signs, declarative of volition,
conceived or adopted by the sovereign in a state, concerning the conduct to by
observe in a certain case by a certain person or class of persons who in the case
in question are or are supposed to be subject to his power.”
Bentham’s concept is also imperative one.
Source of law is sovereign which he personally issues or adopt laws previously
issued by former sovereigns or subordinate authorities or he may adopts laws
to be issued in future by subordinate authorities.
BENTHAM’S SOVEREIGN
“Any person or assemblage of persons to whose will a whole political
community are (no matter on what account) supposed to be in a disposition to
pay obedience and that in preference to the will of any other person”
Attributes or sovereign are interesting; his power as limitless unless limited by
express convention or by religious or political motivations.
FORCE OF LAW
Law is dependent upon motivations for obedience. A law is law until not
supported by sanction which may include physical, political, religious and moral
motivations, comprising threats of punishment and rewards.
COMPARISON BETWEEN AUSTIN AND BENTHAM
1- Austin’s sovereign is postulated as an illimitable and indivisible entity but
Bentham’s is neither. He saw difference b/w social desirability and logical
necessity.
From conceptual viewpoint, there is no need for a sovereign to be undivided
and unlimited. Bentham accepts divided and partial sovereignty.
He discusses the legal restrictions that may be imposed on him.
2- Sanction, Bentham says, may be moral or religious for a valid law. He also
accepts alluring motives i.e. concepts of rewards.
3- Austin’s model was of criminal nature but Bentham has undertaken
“rational reconstruction” which is wider than the model Austin.