LEGAL POSITIVISM

1. What is legal positivism?

2. Classical legal positivism
3. Imperative and sanction theories of law
a. Jeremy Bentham
b. John Austin
4. Criticisms
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What is legal positivism?

put into effect

Legal positivism aims to identify the key features of the legal system that are promulgated by
legislators, judges etc. According to HLA Hart in his essay 1 there are five points that are
generally associated with positivism:
i. Laws are ‘commands’ of human beings
ii. There is no necessary connection between law and morals
iii. Moral judgements cannot be established, as statements of fact can, by
rational argument, evidence, or proof
iv. The analysis of legal concepts is worth pursuing, distinct from (but not
hostile to) sociological and historical enquiries and critical evaluation
v. A legal system is a ‘closed logical system’ in which correct decisions may be
deduced from predetermined legal rules by logical means alone.

The above views do not mean that a legal positivist is unconcerned with questions of morality
and its role in legal systems/law. A reading of numerous positivists reveal that they often
examine and criticise based on their own moral judgments. Instead, what positivists seek to do
is suspend moral judgments until the question of ‘what is law’ has been established and
analysed. Positivists also do not necessarily subscribe to the view that ‘unjust’ or ‘evil’ laws
must be obeyed on the basis that they are law.

Positivism arose to counter the seemingly ‘unscientific metaphysics’ espoused under the
Natural law doctrine.

Classical legal positivism

1
Positivism and the Separation of Law and Morals
J. Austin (1790-1859) and J. Bentham (1748-1832) represent the classical school of thought in
positivism. Bentham was a prolific author who was mainly concerned with law reform. In his
writings he distinguished ‘censorial’ jurisprudence, or the science of legislation, from
‘expository’ jurisprudence which concerns the law as it is without regard to its moral character.
Bentham introduced an imperative/command theory of law, in which the key concepts are
those of ‘sovereignty’ and ‘command’.

John Austin

Austin, a student of Bentham’s work used these concepts to advance a similar command theory.
Law falls into two categories. The laws of God and human laws. It is the latter that forms the
subject of jurisprudence for Austin, more so what he describes as ‘positive laws’. Human laws
are then further divided into ‘positive laws’/ ‘laws strictly so called’ and laws laid down by men
not in pursuance of legal rights, ‘laws improperly so called’.

Laws properly so called

Laws of God Human Laws

Positive laws/ Laws Laws ‘improperly so

commands ‘strictly so called’ called’

Laws by analogy ex. Laws by metaphor

not in pursuit of a legal
right
International law ex. Law of gravity

For Austin, laws by analogy and laws set by men who are not ‘sovereign’ or in pursuance of a
legal right are merely ‘positive morality’. Positive law/ laws ‘strictly so called’ are Austin’s focus.
According to Austin all laws properly so called are commands. These commands are orders
backed by a sanction (threats of harm) given by a sovereign to subjects/citizens. Some
commands are general i.e directed to classes of persons guiding their conduct whereas some are
 specific and are directed to individuals. Therefore, it is only those general commands which are
promulgated by a ‘sovereign’ are laws ‘strictly so called’ or “positive laws”.

Commands

Austin defined a command as “an intimation or expression of a wish to do or forbear from doing
something, backed up by the power to do harm to the actor in case he disobeys.” Furthermore,
the person to whom the command is given is under a "duty" to obey it, and the threatened harm
is defined as a "sanction." For Austin, anything that is not a command is not law. Further the
command must be a general command and it must emanate from a ‘sovereign’. While Austin’s
theory fits neatly in examining the criminal law.

Sanctions

The relationship between command and sanction is integral to Austin’s theory. The concept of a
sanction involves the likelihood of a sanction following in the event of non-compliance. A
sanction is defined as an ‘evil’ which is conditional upon the failure of a person to comply with
the wishes of a sovereign. Therefore, if there is no sanction to follow, the expression of a ‘wish’
is not a command.

Therefore, if the sovereign expresses a wish and has the power to inflict a sanction (an evil) a
person is under a duty to comply. Duty is therefore defined in terms if sanction.

The Sovereign

Sovereignty is another key concept. It is regarded as a social fact and examined in the context of
habitual obedience. Austin states:

“If a determinate human superior, not in the habit of obedience to a like superior, receives
habitual obedience from the bulk of a given society, that determinate superior is sovereign
in that society, and the society …is a society political and independent.”

Boris and the Covid Austin describes the sovereign as a person/ group of persons who are habitually obeyed by the
Christmas parties
majority of society but who on the other hand do not habitually obey any other person or body.
This definition of a ‘sovereign’ would span from an elected Parliament to a Monarch. Austin also
insisted on the illimitability and indivisibility of the sovereign.
 Criticisms

1. The concept of all laws being commands does not account for those rules which confer
Hart
power on persons to alter their legal position. Examples are laws such as those about
contracts, wills, marriages, trusts etc. Austin attempts to reconcile this by suggesting
that the sanction in these instances is ‘nullity’ and the likelihood of this makes these
rules duty-imposing thus falling under the scheme of commands.

2. There are many obligations imposed by the law, the breach of which carries no sanction.
Further there are numerous situations in which there is little or no likelihood of the
sanction being enforced at all, yet one cannot deny that the obligation exists.

A Sovereign who is not

3. This theory does not cater for the fact that ‘Sovereigns’ are in fact answerable to others.
answerable to anyone
is a dictator Further powers of legislation are often divided and as such the concept of the
‘indivisible’ sovereign does not hold.

4. The narrowness of Austin’s definition means that though it fits somewhat neatly into the
So these other laws are not law?
scheme of criminal law, it excludes constitutional law, international law and customary
law.

5. Overall, the theory is too simplistic. The operation of law in a society is much more
complex than the picture that Austin paints and goes beyond compulsion and coercion.
Understanding jurisprudence

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 Understanding jurisprudence

what is a law

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 Understanding jurisprudence

So no sovereign no law?
only custom/religion

a way to take the people land

Hart's gunman is EXACTLY

was Austin said is NOT law:
* temporary order
* aimed at a specific person
* the gunman is not habitually
obeyed by everyone

Hart says that even though

there is no sanction, we are
under a legal obligation.

Do I agree? Not really.

If there was no legal

consequence of having
more than 2 weed plants,
I might have had 10.

Covid example:
If there were not mask
mandates and
sanctions many will
not wear the mask AUSTIN

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 Understanding jurisprudence

Hart goes into semantics

about obliged and obligated

Power and authority

Justification of inflicting the
threat.

But does Hart say why I ought

to comply? Or why it is
justifiable to punish me.

I comply with the law

because of the consequences
if you do not.

a gunman is not above the

law, he is ignoring the law

power conferring laws may

not fit into Austin's theory

So maybe it should
not be order's backed
by threats,
by orders backed by
consequences

the consequences are

a deterrent

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 Understanding jurisprudence

In reality
the people are in the
habit of following
the ruler's family

Usually the kings last rule

is that allegiance is pledges
to his successor.
SO they are still obeying
the first king.

Because it IS a habit

No. It is law. Imposed

by the court or not
it is on the 'books'

By this aguement
ALL law then is not
law unless applied

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 Understanding jurisprudence

I agree here.
An even with no
constitution
The gov't still has limits

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Understanding jurisprudence

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Jurisprudence: theory and context

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