Discussion on Legal Positivism

8/13/2019 Discussion on Legal Positivism

1/5

Legal Positivism

Legal positivism is the thesis that the existence and content of law depends on social

facts and not on its merits. The English jurist John Austin formulated it thus: The

existence of law is one thing; its merit and demerit another. hether it !e or !e not is

one in"uir#; whether it !e or !e not conforma!le to an assumed standard$ is a different

in"uir#.%&

Legal positivism has a long histor# and a !road influence. 't has antecedents in ancient

political philosoph# and is discussed$ and the term itself introduced$ in medieval legal

and political thought.(

The modern doctrine$ however$ owes little to these for!ears. 'ts

most important roots lie in the conventionalist political philosophies of )o!!es and

)ume$ and its first full ela!oration is due to Jerem# *entham whose account Austin

adopted$ modified$ and populari+ed.

Jerem# *entham is a legal philosopher primaril# ,nown for this -tilitarian theor#. )e

proposes that man is governed !# pain and pleasure and that ever# act made !# man

will result in either of the two. -tilit#$ for *entham$ is simpl# that part in an# act or

omission that results to happiness. )e proposes that an# act or omission that results to

pleasure is good and an# act or omission that results to pain is !ad. )e goes on to sa#

that it is the legislators responsi!ilit# to !e a!le to measure and determine$ !ased on

several factors including intensit#$ duration$ certaint#$ remoteness$ num!er of people

affected and etc.$ what the predominant result would come from an act or omission.

'f the act or omission results in a predominantl# pleasura!le tendenc#$ the act/omission

is considered as good. 'f the act or omission results in more pain than pleasure$ the act

or omission is !ad. Even if the act/omission is contrar# to morals$ customs$ and

traditions$ as long as the result is more pleasura!le than painful$ then the act/omission is

good.0

&

Austin$ John 1&20(3. The Province of Jurisprudence Determined. Ed. .E. 4um!le$

&556. 7am!ridge: 7am!ridge -niversit# 8ress

(9innis$ John 1&553. The Truth in Legal 8ositivism$% in The Autonomy of Law$ ed.

4o!ert 8. eorge. .

0Bentham, Jeremy 1748-1832).An Introduction to the Principles of Morals and Legislation.Ed. 1789. Oxford: Clarendon re!!


2/5

John "#!t$n%! &on&e't of la( ha! the follo($n element!:

1. *a( $! a &ommand $!!#ed +y the r#l$n !oere$n

2. Command $! $en to the !#+e&t! for them to o+ey

3. oere$n ex'e&t! the &ommand to +e ha+$t#ally o+eyed +y h$! !#+e&t! +#t doe!

not ha+$t#ally o+ey anyone el!e.

"#!t$n 're!#''o!e! that the relat$on!h$' +et(een the !oere$n and the !#+e&t +ody $!

one that $! of !oere$nty and !#+e&t$on / !oere$n ex'e&t! ha+$t#al o+ed$en&e from the

!#+e&t +ody +#t doe! not ne&e!!ar$ly and ha+$t#ally o+ey anyone el!e. 0he !oere$n $!

the one that $! $nde'endent and #'on (h$&h the !#+e&t +ody $! de'endent on.

't is important to note that Austin !elieved that onl# the sovereign could issue laws.

Austin adheres to *enthams proposition that an# command issued !# the sovereign is

deemed valid and thus must !e o!e#ed !# the su!ject !od# so the# will not suffer

conse"uences for an# violation thereof. A law is onl# valid if it was issued from the

proper authorit#. Austins test of validit# of a law was its source.

'n ever#$ or almost ever#$ independent political societ#$ there are principles or

maxims which the sovereign ha!ituall# o!serves$ and which the !ul, of societ#$ or

!ul, of its influential mem!ers$ regard with feelings of appro!ation. ?ot infre"uentl#$

such maxims are expressl# adopted$ as well as ha!ituall# o!served$ !# the

sovereign or state. @ore commonl#$ the# are not expressl# adopted !# the

sovereign or state$ !ut are simpl# imposed upon it !# opinions prevalent in the

communit#. hether the# are expressl# adopted !# the sovereign or state$ or are

simpl# imposed upon it !# opinions prevalent in the communit#$ it is !ound or

constrained to o!serve them !# merel# moral sanctions.


3/5

9or much of the next centur# an amalgam of their views$ according to which law is the

command of a sovereign !ac,ed !# force$ dominated legal positivism and English

philosophical reflection a!out law. *# the mid=twentieth centur#$ however$ this account

had lost its influence among wor,ing legal philosophers. 'ts emphasis on legislative

institutions was replaced !# a focus on law=appl#ing institutions such as courts$ and its

insistence of the role of coercive force gave wa# to theories emphasi+ing the s#stematic

and normative character of law. The most important architects of this revised positivism

are the Austrian jurist )ans elsen and the two dominating figures in the anal#tic

philosoph# of law$ ).L.A. )art and Joseph 4a+ among whom there are clear lines of

influence$ !ut also important contrasts. Legal positivismBs importance$ however$ is not

confined to the philosoph# of law. 't can !e seen throughout social theor#$ particularl# in

the wor,s of @arx$ e!er$ and Cur,heim$ and also 1though here unwittingl#3 among

man# law#ers$ including the American legal realists% and most contemporar# feminist

scholars. Although the# disagree on man# other points$ these writers all ac,nowledge

that law is essentiall# a matter of social fact. Dome of them are$ it is true$ uncomforta!le

with the la!el legal positivism% and therefore hope to escape it. Their discomfort is

sometimes the product of confusion. Law#ers often use positivist% a!usivel#$ to

condemn a formalistic doctrine according to which law is alwa#s clear and$ however

pointless or wrong$ is to !e rigorousl# applied !# officials and o!e#ed !# su!jects. 't is

dou!tful that an#one ever held this view; !ut it is in an# case false$ it has nothing to do

with legal positivism$ and it is expressl# rejected !# all leading positivists. Among the

philosophicall# literate another$ more intelligi!le$ misunderstanding ma# interfere. Legal

positivism is here sometimes associated with the homon#mic !ut independent doctrines

of logical positivism 1the meaning of a sentence is its mode of verification3 or sociological

positivism 1social phenomena can !e studied onl# through the methods of natural

science3. hile there are historical connections$ and also commonalities of temper$

among these ideas$ the# are essentiall# different. The view that the existence of law

depends on social facts does not rest on a particular semantic thesis$ and it is

compati!le with a range of theories a!out how one investigates social facts$ including

non=naturalistic accounts. To sa# that the existence of law depends on facts and not on

its merits is a thesis a!out the relation among laws$ facts$ and merits$ and not otherwise


4/5

a thesis a!out the individual relation. )ence$ most traditional natural law% moral

doctrines==including the !elief in a universal$ o!jective moralit# grounded in human

nature==do not contradict legal positivism. The onl# influential positivist moral theories are

the views that moral norms are valid onl# if the# have a source in divine commands or in

social conventions. Duch theists and relativists appl# to moralit# the constraints that legal

positivists thin, hold for law.6

A positivist account of the existence and content of law offers a theor# of the validit# of

law in one of the two main senses of that term.elsen sa#s that validit# is the specific

mode of existence of a norm. An invalid marriage is not a special ,ind of marriage having

the propert# of invalidit#; it is not a marriage at all. 'n this sense a valid law is one that is

s#stemicall# valid in the jurisdiction == it is part of the legal s#stem. This is the "uestion

that positivists answer !# reference to social sources. 't is distinct from the idea of

validit# as moral propriet#$ i.e. a sound justification for respecting the norm. 9or the

positivist$ this depends on its merits.


5/5

fairness == so there is no o!ligation to unfair or pointless laws. 24a+ goes further still$

arguing that there isnBt even a prima facie dut# to o!e# the law$ not even in a just state. 5

The peculiar accusation that positivists !elieve the law is alwa#s to !e o!e#ed is without

foundation. )artBs own view is that an overweening deference to law consorts more

easil# with theories that im!ue it with moral ideals$ permitting an enormous

overvaluation of the importance of the !are fact that a rule ma# !e said to !e a valid rule

of law$ as if this$ once declared$ was conclusive of the final moral "uestion: F Philosophical !eview$ pp. &6=

5&.

54a+$ Joseph 1&553. The Authority of Law.

Documents

Discussion on Legal Positivism