Positivism

Positivism Meaning

Legal positivism has historically been the predominant force in legal theory in the past two hundred years, especially in the UK, but its influence has lately declined. Positivism in any area of human knowledge claims to rely only on observable facts, and legal positivism follows this pattern.

• It starts from the premise that law is not a set of propositions derived by reasoning from the nature of things (as the natural lawyers would have us believe), but is rather based on observable commands and behaviour, irrespective of any moral judgements.

• A jurisprudential theory is acceptable, wrote Joseph Raz, only if its tests for identifying the content of the law and determining its existence depend exclusively on the facts of human behaviour capable of being described in value-neutral terms, and applied without resort to moral argument.

That is not to say (as has sometimes been alleged) that positivism philosophy think morality unimportant or irrelevant in legislative and judicial decision-making: on the contrary, almost all would agree that legislators should take morality into account. Nor is it always true that positivists believe that there is a unavoidable moral obligation to obey even unjust laws.

Imperative theory of law

The imperative command theory, also known as the "divine command theory," (Divine Law or Human Law) is a theoretical framework that posits that moral values and ethical norms are derived from divine commands. According to this theory, an individual's beliefs about the morality of an action are dependent on the commands of a divine entity, such as a god or deity. This theory asserts that moral obligation is not based on reason or any human-centered standards, but is instead grounded in the will of a divine being. The imperative command theory has been subject to criticism, particularly regarding the questions of whether such ethical obligations can be reliably attributed to a higher power.

‘command’ theory of law

The command theory of law suggests that laws are simply a set of commands given by a sovereign, who is an individual or group that has power over the rest of society. According to this theory, laws are based on the idea that people must obey the will of their rulers. This means that laws are not necessarily based on ethics, morality, or public opinion, but rather on the authority and power of those who govern society. This theory is often associated with absolute monarchies, where rulers have unlimited power and can issue commands that everyone must follow. However, many scholars today criticize the command theory of law, arguing that it ignores the importance of human rights and the rule of law.

What is Positivism Philosophy?

Positivism philosophy is a school of thought that originated in the 19th century and advocates for the use of empirical and scientific methods to understand reality. Proponents of this philosophy believe that the only knowledge that can be considered legitimate is that which can be objectively observed and measured, and that metaphysical concepts are fundamentally flawed. Positivists emphasise the importance of the scientific method, which involves careful observation, experimentation, and the testing of hypotheses. This approach is often contrasted with more traditional philosophical methods that rely on abstract reasoning and existential questions.

Thomas Hobbes on Positivism

Thomas Hobbes was an English philosopher who lived in the 17th century. He is best known for political philosophy and political orientation we call liberalism. He is well quoted for his conceptualisation of the State in the work Leviathan particularly his notion of the social contract. However, Hobbes was also influential in the development of positivism, which is the view that the only legitimate knowledge is that which can be verified through empirical observation. Hobbes believed that knowledge derived from reason alone was unreliable, and that it was only through the scientific method that certainty could be achieved. This idea was revolutionary at the time and has had a profound impact on modern science and philosophy. Thomas Hobbes believed that by applying the scientific method to all aspects of human knowledge, we could achieve a greater understanding of ourselves and our world.

H L A Hart

H L A Hart was a legal philosopher who made significant contributions to the field of jurisprudence. Born in England in 1907, Hart studied at the University of Oxford and eventually became a professor of jurisprudence at Oxford as well. His most well-known work, "The Concept of Law," argues that law is not only a set of rules, but also a system of social practices that are shaped by both formal legal norms and informal social customs. He also introduced the concept of the "rule of recognition," which refers to the highest authority in a legal system that determines the validity of other legal rules.

Legal Positivism

The leading modern exponent of positivism, Prof H L A Hart, suggested in his early work that its main features are the assertions:

1. That laws are commands of human beings;

2. That there is no necessary connection between law and morals - this is the most significant point on which positivists agree;

3. That the analysis of legal concepts is a worthwhile task which differs from a historical or sociological analysis;

4. That a legal system is a closed logical system capable of providing answers without going outside its own rules; and

5. That moral judgements are essentially subjective and cannot be validated by rational argument.

Austin (according to Hart) subscribed to the first three of these assertions, and Kelsen to the second, third and fifth. Raz and Kelsen (but not Hart) would also assert that to say a law is valid is to say that it ought to be obeyed, though Raz is careful to distinguish this from a moral judgement.

• A lawyer may make a detached legal statement telling a client what he ought to do as a matter of law, without necessarily believing that the relevant law is either sensible or moral.

The Imperative (Command) Theory

It was Austin who first set out and published a full exposition of the "command" theory of law, and his book The Province of Jurisprudence Determined was crucial in establishing modern jurisprudence in England. His analysis was flawed and has rightly attracted heavy criticism, but he did at least set out an orderly theory distinguishing legal from non-legal matters and recognising the realities of political power and the central role of legislation as a source of law. He successfully buried the theories of natural law, so far as English jurists were concerned, for over a hundred years. Austin was a disciple of Jeremy Bentham and was much influenced by Bentham's ideas: it has even been suggested that if Austin was the father of English jurisprudence, Bentham was its grandfather. Bentham's interests ranged way beyond jurisprudence.

Jeremy Bentham

Jeremy Bentham was a vigorous advocate of social reform - but he rejected the idea that "is" and "ought" were interchangeable. He therefore sought to define law in terms of observable facts. Unlike other positivists such as Austin, Kelsen and Hart, however, who saw their work as an academic analysis, Bentham saw his theoretical work as a preparation for the practical business of legislation.

• Classical common law thinking made no serious attempt to distinguish law from moral rules and social customs, and Blackstone (like others of his day) tended to mix together statements of the law with moral judgements as to what he thought the law ought to be. A clear distinction has to be drawn, Bentham argued, between expository jurisprudence, describing the law as it is, and censorial jurisprudence, considering what it ought to be. The natural lawyers confused the two, he said, when they ought to be kept separate.

• Bentham was alive at a time when nation states had emerged and feudal power disappeared, making it possible to identify a sovereign (either an all-powerful monarch or a power-sharing body) in most civilised societies. There was a growing tendency (in England to use legislation as an agent of change rather than merely for codification of ancient custom made the role of the sovereign a central one in any legal system.

• He defined law as an assemblage of signs, declaratory of a volition conceived or adopted by a sovereign, this command is then combined with an element of force (enforcement).  The attachment of sanctions in law is a distinct aspect of the positivist ideology.

Hart’s words demonstrate that ‘certain kinds of human conduct are no longer optional, but in some sense obligatory’.  Hart’s critique of the ‘command model’ took the shape a complete explanation of positive law in operation and employed the use of statute, case decisions, and customary law.

Bentham's definition of law is therefore based on the idea of the sovereign, to whom the community has a habit of obedience. This is a sociological definition based on observation: there is no need to demonstrate any inherent "right to rule" nor any "social contract" under which the people voluntarily give up their rights to a sovereign: the observed habit of obedience is all that is required.

• If there is no identifiable sovereign - no person or body to whom the people have a habit of obedience - then the society is in a state of anarchy; if there is more than one sovereign holding sway within the same society then there is a state of civil war or revolution.

A mandate of the sovereign is a law, said Bentham, and a mandate can become a mandate of the sovereign in any of three ways:

• by original conception, if the sovereign himself issues the mandate; or

• by susception, if the sovereign adopts as his own a previous mandate of another person; or

• by pre-adoption, if the sovereign by his express or implied consent adopts as his own the mandates of others yet to be issued.

He recognised judicial legislation as a means of making law, but regretted its frequency, describing case-by-case development of law as like waiting for a dog to do wrong and then beating it.

• He advocated large-scale codification of law on the continental model, believing this would reduce the scope for the use of judicial discretion.

• But, he said, a father's commands to his children, or a master's to his servants, are laws insofar as they do not run foul of any greater law.

• Bentham did not see sanctions as a central part of each law, but rather as a necessary adjunct. A law normally predicts the application of a sanction for non-compliance, he said, but the application of the sanction arises formally from a different law. His notion of sanctions included rewards as well as punishments, and included social, moral and religious consequences as well as purely physical ones.

John Austin

John Austin was the father of analytical jurisprudence. John Austin was an English legal theorist and philosopher who lived in the 19th century. He was born in 1790 and is considered to be one of the most influential figures in the field of jurisprudence, particularly in the development of analytical jurisprudence. John Austin's works, including "The Province of Jurisprudence Determined," provide an analytical approach to law, examining fundamental concepts such as sovereignty, legal positivism, and legal systems, among others. Austin's concept of "command theory" argues that law is simply a command given by a person or group to another person or group, and that this command is enforced by the use of sanctions or punishments. His ideas continue to influence legal philosophers to this day and his contributions to refining the understanding of the law are enduring.

General (COMMAND) THEORY

Austin defined a law strictly so-called as a general command of a sovereign. He argued that laws must be issued by a sovereign - a person or entity that holds supreme power - in order to be considered legitimate and enforceable. Austin believed that the essence of the law was the command of a sovereign that is backed by coercion. According to him, laws only have meaning because they are associated with a penalty or punishment for disobedience. This view of law as a command issued by a sovereign remains influential in contemporary legal theory and has helped shape our understanding of the nature and legitimacy of legal systems worldwide.

General

• He distinguished general from particular commands in the first place, and said the latter are not law: A law may be particular as to the person or persons addressed, but must be general as to the conduct it requires or prohibits.

Command

• A command he defined as comprising a wish formed and expressed by the commander, backed up by a sanction for non-compliance: his "holy trinity" thus comprises a sovereign, a command and a sanction.

Sovereign

• A sovereign, said Austin, is a person or body who is habitually obeyed by most members of a society of reasonable size, and who does not habitually obey any other. Such a sovereign must be

  • physically determinate,

  • but may be a body of persons rather than one person alone.

  • He must also be inseparable - shared sovereignty is impossible

  • continuous in his sovereignty, and

  • legally unlimited, though Austin recognises in a typical positivist separation of law there may be moral or political constraints on the sovereign's power.

Austin said the common law, arrived at the right conclusions in most cases, but this was almost accidental and rationalisation would be desirable. He had little time for custom as a source of law, and claimed that it was not in fact law until pronounced such by a judge.

• This does not square with the traditional "declaratory theory" of the common law, under which the judges' notional role is to declare the law that already exists, nor with the fact that common law judgements operate retrospectively (R v R (rape: marital exemption).

Unlike Bentham, Austin was quite happy to accept the principle of judicial legislation, with judges acting as legislators under the delegated authority of the sovereign. He recognised that in reality a sovereign must delegate some legislative power.

Austin was concerned, however, that judicial legislation was made in haste and was sometimes vague and left gaps, and suggested that it should be grounded on clearly defined rational principles and some systematic organisation.

Austin had no time for the ideas of natural law or natural rights. Even such ideals as liberty, he felt, were valuable only insofar as they were conducive to the public good. It follows that Austin was concerned with duties rather than with rights.

• Ruben  has remarked Austins jurisprudence was designed to defend the stability of a particular economic system and to protect the interests of the middle class.

Bentham's idea of law is clearly wider than Austin's - but Austin's rather arbitrary definition is perhaps too narrow. Neither system finds room for constitutional conventions or international law.

Pros and Cons of Legal positivism

Legal positivism is a theory that emphasizes the separation of law and morality. Here are some of its pros and cons.

# Pros

1. Predictability: Legal positivism provides predictable outcomes when it comes to legal decision-making. Since law is confined to the statutes, decisions become more reliable as they issue from objective interpretation of the law.

2. Clarity: Legal positivism offers a clear and concise understanding of what the law is and what it is not. It uses predetermined criteria, such as written law or the interpretation of legal precedent to guide decision-making, so when a legal dispute arises, parties know exactly what to argue about.

3. Neutrality: This theory maintains a neutral stand towards social, economic, or political factors, which ultimately leads to the application of law in a fair and unbiased manner.

4. Progressive changes: Legal positivism can be used to promote changes in the law, as it empowers lawmakers to create new, positive laws or amend old ones through legal channels. Notably, it puts great emphasis on the power of legislation to effect change.

# Cons

1. Moral deficiency: Legal positivism's biggest criticism is that it creates a moral vacuum in the law. The law is viewed as an abstract system of rules without required moral justification. This can lead to the emergence of rules that undermine fundamental human rights and principles without drawing concern from those who follow it.

2. Inflexibility: Legal positivism's reliance on predetermined criteria to make decisions makes it rigid and inflexible to change. This can lead to legal concepts that are divorced from society's reality, creating difficulties in adapting the law to society's needs.

3. Lack of accountability: Since legal positivism demands that each legal decision be based solely on the criteria predetermined, it's possible for the legal system to hide behind the technicalities of the law to avoid accountability and justify unjust outcomes.

4. Overreliance on lawmakers: Since legal positivism places the lawmaking power at the hands of lawmakers, it might be subject to being hijacked by vested interests. The control of lawmakers creates a potential for lawmakers to use their power to their advantage, creating unjust and oppressive laws.

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