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----------------JURISPRUDENCE--------------
Investigating the Psycho-Analytical Perspective of Obedience of Law in Legal
Positivism School of Jurisprudence

COURSE IN CHARGE SUBMITTED BY:

MR. MRITUNJAY KUMAR RUPAL MATHUR
(Assistant Professor of Law) B.B.A. LLB (Semester- VI)
Roll No. 1120192037
 ACKNOWLEDGEMENT

On completing this assignment, we take the opportunity of thanking the people who contributed
to the completion of it, without whose aid, contribution, and help this project would not have
seen practicability. First, we extend our heartfelt gratitude to our Jurisprudence Teacher, Mr.
Mritunjay Kumar, whose continuous guidance and support gave us the much-needed impetus
and better insight into the topic. We thank all members of the Library Staff for providing us
the assistance anytime needed.
We also thank our friends and batch mates for providing us the much-needed aid whenever
required. Most importantly, we would like to thank our parents for giving us the much-needed
force to accomplish this project.
INTRODUCTION

Legal Positivism is a jurisprudential approach to interpreting the law in favorable terms. It

seeks to separate law from its ethical and modern concerns and focuses more on its structure
and origin. Some of this school's prominent, influential thinkers were John Austin, Jeremy
Bentham, and Thomas Hobbes. Legal Positivism is a legal doctrine that asserts that all laws
are nothing more than the expression of the will of the authority that enacted them. Thus, no
laws can be regarded as expressions of higher morality or principles to which people can appeal
when they disagree with the laws. It is a perspective that law is a social construct. The creation
of laws is simply an exercise in brute force and an expression of power, not an attempt to realize
loftier moral or social goals. As a result, from a positivist approach, it can be stated that "legal
rules or laws are valid not because they are rooted in moral or natural law, but because they are
enacted by legitimate authority and are accepted by the society as such."
Schools of legal jurisprudence (the study of law) address the question of what direction is
different. Legal Positivism (one legal jurisprudence model) is commonly contrasted with
natural law, another legal philosophy. Questions that may come up when we consider what is
law include:
 Is our law an end product or body of words drafted by individuals with authority?
 Is our law linked to (or even dependent on) an underlying moral standard?
 Maybe the preferred answer lies somewhere in between these two extremes?
The goal of the analytical school of jurisprudence is to deal with the law as it is now. The
sovereign's directive, according to the Analytical school, is law. As a result, analytical colleges
have earned the moniker "imperative schools." The analytical school grew to popularity in the
nineteenth century. It claims that morals are not objective, but the law must be factual. If
morality are included into the legal notion, the law ceases to be objective. The analytical school
takes a 'positive' perspective on societal and legal issues. The positivists' primary concern is
the law that is found (positum) rather than the ideal law. Put simply, an ideal law is a perfect
law for a society or a circumstance, whereas a law that is found concerns logical and welfare
thinking in the legislation. This school, the most popular in England, establishes the
fundamental elements that make up the fabric of law, such as state sovereignty and the
administration of justice. While Bentham, Holland, Austin, and Salmond are significant
proponents of this school, Austin is considered a father of the Analytical school.
MEANING & DEFINITION
Legal Positivism has these basic tenets:
 Law is a command by a human sovereign.
 Law is separate from morality and has no identifiable ethical concerns.
 Law should be studied positively, i.e., "What is law?" and not normatively, i.e., "What
should the law be?"
 The study of Legal concepts is separate from historical or sociological analysis.
 The legal system is self-sufficient; to make decisions, it does not need to have social
concerns.
 Precedence of facts over moral judgments.
Legal Positivism is an approach to understanding and interpreting law rooted in jurisprudence
that seeks to separate law as a separate and independent field of study divorced from ethical,
moral, or social concerns.

HISTORY OF LEGAL POSITIVISM AND ITS PROPONENTS

Legal Positivism has ancient roots. Christians believe the Ten Commandments have sacred and
pre-eminent value because they were inscribed in stone by God and delivered to Moses on
Mount Sinai. When the ancient Greeks intended a new law to have permanent validity, they
marked it on stone or wood and displayed it in a public place for all to see. In classical Rome,
Emperor Justinian (483-565 AD) developed an elaborate system of law that was contained in
a detailed and voluminous written code.
Before the American Revolution, English political thinkers John Austin and Thomas Hobbes
articulated the command theory of law, which stood for the proposition that the only legal
authorities that courts should recognize are the commands of the sovereign because only the
sovereign is entrusted with the power to enforce its orders with military and police force.
Thomas Hobbes argued that "it is improbable for any statute to be unjust." According to him,
"before the names of just and unjust can take place, there must be some coercive power to
compel men equally to the performance of their covenants … and such power there is none
before the creation of the commonwealth". In this, he meant that "laws are the rules of just and
unjust, nothing being reputed unjust that is not contrary to some law. For Hobbes, the sovereign
is not subject to laws for having the power to make and repeal laws for having the power to
make and repeal laws; he may, when he pleases, free himself from their subjection." What he
stressed is that "to the care of the sovereign belongs the making of good laws." Furthermore,
he concludes that “all that is done by such power is warranted and owned by every one of the
people, and that which every man will have so, no man can say is unjust.”
On the other hand, John Austin adopted some ideas of Thomas Hobbes in his legal philosophy
about the nature of law. Additionally, he was known individually for his "dogma" of legal
Positivism which states that:
The existence of law is one thing; its merit or demerit is another. Whether it be or be not is one
inquiry; whether it be or be not conformable to an assumed standard is a different inquiry. A
law, which exists, is a law, though we happen to dislike it or think it varies from the text, by
which we regulate our approbation and disapprobation.
Austin defined law by saying that it is the "command of the sovereign." He expounds on this
further by identifying the elements of the definition and distinguishing law from other similar
concepts:
"Commands" involve an expressed wish that something is done and "an evil" to be imposed if
that wish is not complied with.
Rules are general commands (generally applying to a class), as contrasted with specific or
individual orders ("drink wine today" or "John Major must drink wine").
Positive law consists of those commands laid down by a sovereign (or its agents) to be
contrasted to other lawgivers, like God's general commands and the general commands of an
employer to an employee.
The "sovereign" is defined as a person (or determinate body of persons) who receives habitual
obedience from the bulk of the population but who does not habitually obey any other (earthly)
person or institution. Austin thought that all independent political societies, by their nature,
have a sovereign.
Positive law should also be contrasted with "laws by a close analogy" (which includes positive
morality, rules of honor, international law, customary law, and constitutional law) and "laws
by remote analogy" (e.g., the laws of physics).
Another famous advocate of legal Positivism in America's history is probably Justice Oliver
Wendell Holmes, Jr. He wrote that the "prophecies of what the courts will do in fact, and
nothing more pretentious, are what I mean by the law." Holmes made a description of what
positive law is in the realm of the courts. In this statement, Holmes suggested that the meaning
of any written law is determined by the individual judges interpreting it. Until a judge has
weighed in on a legal issue, the law is ultimately little more than an exercise to guess how a
judge will rule in a case.
DEVELOPMENT AND INFLUENCE

 Empiricism

Empiricism is often seen as the antecedent to Legal Positivism. Empiricism is based on the
notion that the validity of facts comes from sense experience. It denies the existence of any
phenomena which cannot be verified with the five senses.
Empiricism regarded metaphysics as speculative and anything beyond sense experience as
uncertain and inaccurate. Empiricism brought about a comprehensive methodology to
understand the world in favorable terms, and Legal Positivism resulted from this outlook.

 Thomas Hobbes

Thomas Hobbes was the first to lay out the positive philosophy of law. His legal philosophy
was based on the supremacy of Sovereign power. According to him, however arbitrary or
unjust, a law is a law if the sovereign has commanded so.
He was one of the foremost modern thinkers to give the idea of a supreme sovereign whose
authority is unquestionable and absolute and who is the sole lawgiver in a given state.

 Jeremy Bentham
Bentham was perhaps the most prominent British Legal Positivist who laid down the
groundwork of Positivist legal philosophy with the sovereign at its helm. He discusses two
categories of people concerned with the legal system.
Expositors– These are people who read and explain the law and do not pass any moral or ethical
judgment on it.
Censors– These are people who do not separate law from morality and criticize law based on
a sociological or historical interpretation of it
For Bentham, Censors were not subjects of ‘real law’ and remained outside the domain of law.
Law was not meant to be discussed, criticized, or debated but explained and obeyed.

 John Austin

John Austin was another influential thinker of this school of thought and defined law as the
"Command of the Sovereign." He wanted to establish law as a positive science at par with the
natural sciences. He tried to dissociate law from all subjective elements, be it ethics, social
responsibility, or morality.
These thinkers helped develop an understanding of Legal Positivism and laid the groundwork
for establishing law as objective science. They are widely cited, referred to, and criticized by
contemporary thinkers. Still, everyone gives credit to these great thinkers who laid out the law
as a severe science at par with other academic fields.
APPROACHES TO LEGAL POSITIVISM
Pedigree Thesis
The pedigree thesis asserts that legal enforceability and legitimacy are due to specific social
facts. The Command theory of Austin propounded this thesis. Austin says that the principal
distinguishing feature of a legal system is the presence of a sovereign who is habitually obeyed
by most people in the society but not in the habit of obeying any determinate human superior.
For him, a command backed by sanction is all that law is limited to. Any external law analysis
is speculative and lies outside the domain of 'Real Law.'
However, this thesis is subject to much criticism. Law does not always arise from a political
superior. It has existed in society without the modern conception of the state, even when people
have no sovereignty over them. Customs and traditions were the tools people used for social
control and cooperative, civilized living.
According to Austin, the state's primary function is to use force to impose sanctions. However,
modern democracies have governments that serve the people and are elected to ensure their
safety and prosperity, not use force on them. The staff employed by the state is not the state's
power but the people's willingness to obey.
Austin's ideas do not apply to International law because it has no Sovereign. International law
is based on the principles of International recognition, cooperation, and diplomacy.
Modern democracies are found on a constitution, which rests as the source of all the political
powers of the state. Therefore, the true sovereign in a democracy is the people whose rights the
constitution upholds.

According to some people who have given interpretation to this, based on the essence of the
thesis, the law must be entirely free of moral notions. However, the fact that Austin thinks
that the specific content of the law considers not only an inquiry into its existence but also a
separate inquiry into its merit or demerit implies that the rules can, and do at least
sometimes, reproduce or satisfy specific demands of morality.
Herbert Hart, a legal philosopher, agrees with Austin. He explained that Austin did not say
that the norms of moral law and the precepts of the natural law did not influence the
promulgation of rules and regulations. In addition to this, he also said that Austin did not
imply that positive direction is non-moral. A person may argue that positive law must
conform to moral and natural law but to say that it is null and void simply because it
conflicts with the moral and natural law is foolish and absurd.
Separability Thesis
The second thesis containing the establishment of legal Positivism is the separability thesis.
This understanding suggests that any reference to moral virtue or ideals in characterizing the
related ideas of law, legal legitimacy, and legal framework conflicts with the separability thesis.
The separability thesis attests that law and morality are theoretically separate in their broad
structure. This unique definition can be interpreted in various ways. For instance, Klaus Faber
(1996) deciphers it as making a meta-level case that the meaning of law must be free of ethical
concerns.
This thesis also can be criticized along similar lines to the Pedigree thesis. Law cannot be
separated from morality because law directly affects the development of a socio-political
paradigm. People's lives are directly affected by rules, and they regularly interact with the
dictates of a sovereign superior.
History is full of arbitrary legislation leading to widespread subjugation and oppression. When
we consider a political sovereign supreme, there are no checks and balances against them
becoming tyrannical. Be it Nazi Germany or the Soviet Union, whenever power is concentrated
and unquestionable. Law is not headed in a moral direction, and people are oppressed,
tyrannized, and even systematically murdered.

There are many versions or interpretations of Legal Positivism. Nevertheless, perhaps, the
most popular version or understanding would be that of the Separation Thesis. According to
Hart, a contemporary legal positivist, a separation thesis is the essence of Legal Positivism.
This thesis's main point or sense is that the law and morality are conceptually distinct.

Discretion Thesis
Ronald Dworkin explained this thesis in this way:
"The set of these valid legal rules is exhaustive of 'the law,' so that if such a rule does not cover
someone's case, then that case cannot be decided by 'applying the law.' It must be decided by
some official, like a judge, 'exercising his discretion,' which means reaching beyond the law
for some other standard to guide him in manufacturing a new legal rule or supplementing an
old one (Dworkin 1977, p. 17)."
This thesis asserts that in the practice of law, a situation will inevitably arise in which an issue
would lie outside the established principles of law, and there would be no law to govern the
said issue. In this case, the discretion thesis asserts that it is up to the judges, the jurists, and
the legislators to form a new rule to decide on the said problem, which would involve leaving
the domain of law and exercising their discretion of commanding law.
The discretion thesis is not a central tenet of Legal Positivism but is still considered following
it.

POSITIVISM AND LEGAL PRINCIPLES

Dworkin was the most prominent proponent of Legal Principles being a part of the law. For
him, rules were implemented in an all-or-nothing manner. They were to be applied without
modification and questioning.
However, while deciding cases, judges cannot apply rules without seeking guidance from
certain legal principles which are conventionally considered extralegal by positivists. For
Dorkin, the actual circumstances were too ambiguous and full of detail which cannot be
adequately captured in rules. To decide on a matter judiciously, one needs guidance from
eternal principles, which help the judges determine.
For him, these principles were not extralegal and should be considered a part of the law.
For example, in the case of Riggs v. Palmer, a murderer defended himself because he had the
victim's will. The court searched for a rule regarding such an assertion but could not find any.
The court relied on the principle that such a heinous crime should not go unpunished, regardless
of the victim
's will.
In Dworkin's viewpoint, such a scene shows the inadequacy of rules and why legal principles
should be formalized and considered an integral part of the field of law.
Dworkin's viewpoint was met with much opposition from the positivists, who thought that law
could not consist of anything apart from objective, definite rules and principles were primarily
subjective and metaphysical, contrary to their assertion that law is fundamental science.
According to Dworkin, a legal principle is to be considered:
(1) the principle coheres with existing legal materials; and
(2) the principle is the most morally attractive standard that satisfies. The correct legal principle
is the one that makes the law the moral best it can be.
Thus, Dworkin concludes, "if we treat principles as law, we must reject the positivists' first
tenet, that the law of a community is distinguished from other social standards by some test in
the form of a master rule" (Dworkin 1977, p. 44)."
The validity of Legal Principles is considered one of the classic criticisms of Legal Positivism
and was one of the first steps toward a broader, more socially relevant understanding of the law
and a move away from the arbitrariness of the positivists.
THE LAW AND THE STATE/THE SUPREME POLITICAL SUPERIOR
In Thomas Hobbes' and John Austin's legal Positivism, the state is perceived as the creator
and enforcer of the law who is, therefore, vested with the power to "inflict an evil or pain in
case its desire is disregarded." Thus, the law is the expression of the will of the state, laying
down the rules of action upheld by force. Nevertheless, this does not mean the state can do no
wrong in expressing and enforcing its will. However, even if the state does a wrong, no right
can be claimed against it.
From the concept of law of the positivists, the supreme political superior is the state, as a
collective legal association under the rule of the majority. The legal doctrine of non-suability
was derived from this concept.
However, it must be remembered that the government's exercise of the will of the supreme
political superior is not absolute. When there is a deliberate and unrelenting disregard for the
will of the foremost political chief in the exercise of governmental powers, most society
members may blunt, curb, or even deny the response to the adverse governmental challenges.
There are two ways of manifesting the famous response of the people. One is by an electoral
answer, which is a peaceable type. The electoral answer is set not too far apart nor too close
to each other. The second type is the revolutionary response, which is an uprooting type. The
second type is not easily provoked. It happens or arises only in situations or circumstances in
which the people have unique difficulty and arouses them to engage in this kind of response
to check and contain the excesses in the exercise by the government of the powers delegated
to it. Depending on the intensity or graveness of the governmental challenge, the people may
decide to resort to this response or not.
When the challenge is only minimal, most probably, it will just be ignored by the people
since it is not enough to make an impression or not enough to excite or arouse their collective
sense of antipathy. Nevertheless, when the challenge reaches its maximum intensity or the
challenge of the government has assumed such tremendous proportions, the capacity of the
people to respond has been stifled. In this situation, only with outside assistance or
intervention may the will and power to resist be bargained. However, suppose the
governmental challenge is at its optimum intensity. In that case, the people may already act
effectively and not allow the governmental challenge to succeed and reach its maximum
power.
No hard and fast rule can be laid down to measure the intensity of the government's
challenge. However, some factors can serve as a guide. The governmental challenge's
evaluation is a matter that addresses itself to the people's conscience. Therefore, the
revolutionary response depends on the combination of the conditions that produce or promise
the best average result for the people.

KELSEN’S PURE POSITIVE LAW

Hans Kelsen, an Austrian jurist and philosopher reiterated Austin's idea that "the concept of
law has no moral connotations whatsoever." During the 20th century, Kelsen claimed that at
that time, the traditional legal philosophies were hopelessly contaminated with political
ideology and moralizing. Hence, Kelsen propounded the idea of a Pure Theory of Law, which
is a theory of Positive Law. It is a general theory of law, not an interpretation of specific
national or international legal norms, but it offers a theory of interpretation. It is characterized
as a "pure" theory of law because it aims to focus on law alone. It only describes the law and
attempts to eliminate or set aside anything that is not law. It seeks to free the science of law
from alien elements. Kelsen wanted to show his pure concept of positive law by eliminating
any sign of the norms of the moral law to positive law. According to Kelsen, "the law is simply
not pure when cluttered with axiological norms."
The law, according to Kelsen, is a system of norms. He maintained that legal standards are
created by acts of will or, in other words, products of deliberate human action, as opposed to
moral norms by God. Concerning this, the pure law theory considers only the norms created
by the acts of human beings, not norms that come from other superhuman authorities.

NORMATIVE LEGAL ORDER

According to Kelsen, the nature of the law "is not simply a system of coordinated norms of
equal level but a hierarchy of legal norms of different level." For if the law were a system of
coordinated norms which are of equal level only (models of moral law, precept of natural
law, legal standards), then legal models would not be positive or jussive and would be a
problem in setting a guide to the lawful ordering of the society.
According to Kelsen, there is such as thing as a grand unchallengeable norm, or simply the
grand norm, which is "not a product of free invention nor is it presupposed arbitrarily." This
great norm came from the people's collective will, competence, and capacity. Kelsen used
this term to denote the primary standard, order, or rule that forms an underlying basis for a
legal system. Kelsen came up with this because there is a need to find a point of origin for all
laws on which the fundamental law and constitution can gain legitimacy. In other words, the
grand norm no longer depends on the moral or natural law for its validity. Thus, all the legal
standards coming or emanating from this are valid even if criticisms are made based on moral
or natural law.
The pure positive law theory distinguishes the "is-statement" from the "ought-statement." The
"is-statement" that something is or is not done is expressive of a simple reason for action. The
"ought-statement" that something should be, or something should be done, or something
should not be done is expressive of a higher kind of reason for action. It is a tense indicative
of a conscientious desire to discharge an obligation.
For illustration purposes, here is an example:
Why should the people pay taxes on time? As stated above, there are two ways or reasons for
complying with the legal norm of paying taxes, specifically the "is-statement" and the "ought-
statement."
One may answer that he needs to pay his taxes so that he will not be caught in a situation with
unpleasant consequences, which can mean that he would not pay at all if he can get away
with it. In this situation, the person's purpose in paying his taxes is to avoid criminal
prosecution. The person's response that he pays his taxes on time because the legal norm
commands him to do it is an is-statement. In this example, the normativeness of the legal
standard has evaporated.
Another way of answering or reasoning is to discharge a moral obligation. According to
Kelsen, an answer applying the ought statement to the question of why people should pay
their taxes on time is the correct one. An example answer would be that people should pay
their taxes on time because the legal norm should be observed or obeyed. In this example,
there is a higher justification for action, which is to discharge o moral obligation without any
thought of getting away from it.
Thus, in the normative legal order, the jussiveness of a legal order is preserved, and its
functions are clarified. The first function is prescriptive, which ordains a person to give, do,
or not do something. An example of this would be trespass to a dwelling, which is prohibited
in the Revised Penal Code. The other is the authoritative function which delegates to the
people the power to issue rules and regulations to implement a legal norm. An example of
this type of function would be the issuance of administrative rules, which would need the
force of society to back them up. Lastly, the permissive process allows a person to give, do,
or not do something. Self-defense would fall under this; the legal norm should provide an
exemption from any sanction attached to it.
The acts of the different branches of the government are considered measures of coercion.
Sanctions and incentives are attached to a legal norm. This is what distinguishes a legal
standard from other social models. If the law is not considered positive or jussive, it becomes
the same or similar to the different social norms. Because of the positive and jussive
characteristics of the law, the members of the society are obliged to conduct themselves in the
manner prescribed, authorized, or permitted by the legal norm. There is no need for further
deliberation amongst the members of the society. They should observe and obey the legal
standards; if not, they must suffer the consequences. These norms of conduct bring about
peace and order within the society. This may have been the best defense yet for the positivist
theory of the conceptual independence of law from moral and natural laws.

ESSENTIAL ATTRIBUTES OF THE LAW

The law has three essential attributes: conscious formulation, generality, and authoritativeness.
As a conscious exercise of authority, the rule or norm is different or separate from morals. A
specific rule or model of human conduct must be articulated before a fundamental law. A
conscious formulation as an element distinguishes a control or standard of positive direction
from a rule or norm of morality. In the case of character, there is no conscious articulation to
lay it down as such. There is no cause of action to enforce its performance of it. However, when
they are voluntarily done, they cannot be undone anymore, even on the allegation that their
performance was without legal consideration. An example of a moral obligation is the
obligations provided in Article 1423 of the Civil Code of the Philippines.
The following attribute is known as generality. A rule or norm should not be in a particular
form for that would determine only specific acts, persons, or properties. Rules or standards
should be general; in other words, they must prescribe conduct courses for all members of a
society or a class.
The last attribute is authoritative enforcement. When the authority of the state backs a rule or
norm, it involves or entails a duty to obey. This is the crucial characteristic of legal rules or
legal means. This attribute provides sanctions or incentives, giving the people in authority the
coercive competence to enforce the rules or standards within limits set by law. An embargo is
an eventual evil annexed to the rule or norm and may take the form of some punishment,
specific or substituted redress, or enforced prevention. This element makes the law imperative
and jussive or makes it not merely hortatory or advisory.
Positive Law vs. Natural Law
Natural law is the law that already exists and is waiting to be discovered. It refers to the
standard of conduct that transcends human authority. It is that system of moral and ethical
principles that are inherent in human nature and can be discovered by humans through the use
of their natural intelligence. Positive law is a law made by man. It is a system of rules
established by the governmental power of a state. Positive law can be based upon natural law,
but generally, this view of law is opposed to the classical understanding of natural law.
Legal Positivism is the view that law is entirely defined by its existence as artificial law. The
function of positive direction is to describe the natural law and make it explicit; to make it
effective thru sanctions.
The positivist approach has a recurring problem of the separation of law from the moral law
and natural law.
The positivists criticize the idea that natural laws are inherent in the concept of law. John
Austin advocated the separation of law and morals.
“With the goodness or badness of law as tried by the test of utility or by any of the various
tests which divide the opinions of mankind, it has no immediate concern."
John Austin emphasized that law is not directly related or has no "immediate concern" to
natural or moral law. Law is not necessarily a moral concept, and ethical considerations do
not necessarily precede law. Whatever their relation maybe is only mere accidental and not
immediate.
From the legal positivists' point of view, the body of legal rules should exist without
conscious regard for the norms of morality, although the latter's influence is not entirely
denied. Legal rules do not measure up to moral law but do not cease to be legal rules.
Another problem of the positivist approach concerning the nature of law is that it deals with
the empirical sphere of reality, i.e., rather than the transcendental sphere of the ideal (the
ought). Legal positivists do not believe in natural law in the lawful ordering of society
because natural law is not common to everybody. There are conflicting precepts of natural
law, making it difficult to establish which is right and which is wrong. It is better if the
concept of law is free from metaphysical speculation.

CONFLICT WITH HISTORICAL VIEW

The positivists view the law as simply the conscious creation of a supreme political superior,
an artificial set of rules established and enforced by the state. In its perspective, the historical
view that the law emanates from life and spirit is ambiguous.
A rule cannot be made before the occurrence of the facts it purports to regulate or govern. In
the positivists' view, the act has to happen before a rule can be made precisely to control it.
Rules were traced back to their simple beginnings to understand the conflict between the
historical and the positivists' views. Rules back then were not established but were followed
as they are now. There is not much conflict at all. How people settled injuries or liabilities to
others was similar to the present day.
It can be drawn that the modern rules concerning a particular place or people mostly were
traced or taken from past rules or another legal system. Every current rule has its beginning;
the issue of conflict between the positivists' view and the historical view is not as accurate as
it was thought.

CRITIQUE OF LEGAL POSITIVISM

The most influential criticisms of legal positivism flow from the suspicion that it fails to give
morality its due. The law has essential functions in creating harmony and peace in our lives,
advancing the common good, securing human rights, and governing with integrity. However,
it has no relevance to our morals.
Lon Fuller
Fuller denies the separation of law and morality. He believes that virtues inherent in or
following clear, consistent, prospective, and open practices can be found in law and all other
social methods with those features, including custom and positive morality.
His other criticism is that if a law is a matter of fact, we are without an explanation of the duty
to obey. If an amoral law is made, there is still an obligation to obey.
Fuller's internal morality of law
In his seminal work, The Morality of Law, Lon L. Fuller asserts that law is subject to an internal
morality consisting of eight principles:
The rules must be expressed in general terms;
The regulations must be publicly promulgated;
The rules must be (for the most part) prospective in effect;
The rules must be expressed in understandable terms;
The rules must be consistent with one another;
The authorities must not require conduct beyond the powers of the affected parties;
The charges must not be changed so frequently that the subject cannot rely on them; and
The rules must be administered in a manner consistent with their wording
(Fuller 1964, p. 39).
In Fuller's view, law consists of internal morality, which is essential for its functioning. He
mentions eight guiding principles: if any law is ignorant, it should not be considered law.
According to him, to achieve the purpose of the law, which is to maintain social order and
stability, the law has to be held subject to a universal notion of morality, represented in his
eight principles.

Ronald Dworkin
Dworkin denies that there can be any general theory of the existence and content of law; he
denies that local views of particular legal systems can identify law without recourse to its
merits, and he rejects the whole institutional focus of Positivism. For him, an idea of law is
how cases ought to be decided. It begins not with an account of political organization but with
an abstract ideal regulating the conditions under which governments may use coercive force
over their subjects. Society has a legal system only when, and to the extent that it honors this
ideal, and its law is the set of all considerations that the courts of such a society would be
morally justified in applying, whether or not any source determines those considerations.
CONCLUSION
From the above analysis, it is clear that the Positivist movement is no longer progressing. Its
arguments have been refuted mainly by contemporary philosophers, accelerated by the advent
of modern democracy and constitutionalism.
Nevertheless, the legacy of the movement still lives on. Positivism laid out the basic notions
still prevalent in modern legal systems. Even in modern democracies, we see the flow of law
emanating from political superiors to the people; we also know the importance of statutes,
rules, and regulations along with the discretion of jurists.
The Separability thesis, however, is more or less proven to be wrong. Our struggles throughout
history have proven that law needs an ethical direction for it to remain just and fair and not
devolve into tyranny.
Ethical concerns are now central to any promulgation, rule, or legislation. Laws everywhere
are becoming less arbitrary and more inclined toward ensuring freedom and liberty.
The focus of legal institutions is shifting from being a system of commands and sanctions to a
system that aims to ensure prosperity in the people it governs.
It can be concluded that Legal Positivism provides a unique perspective for understanding our
legal systems. While its flaws are not without, it still holds much academic importance.