Austin defined law by saying that it is the “command of the sovereign”. He expounds on thisfurther by identifying the elements of the definition and distinguishing law from other conceptsthat are similar
“Commands” involve an expressed wish that something be done, and “an evil” to be imposedif that wish is not complied with.
Rules are general commands (applying generally to a class), as contrasted with specific or individual commands (“drink wine today” or “John Major must drink wine”).
Positive law consists of those commands laid down by a sovereign (or its agents), to becontrasted to other law-givers, like God's general commands, and the general commands of anemployer to an employee.
The “sovereign” is defined as a person (or determinate body of persons) who receives habitualobedience 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, laws 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 JusticeOliver Wendell Holmes, Jr. He wrote that the "prophecies of what the courts will do in fact, andnothing 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 making this statement, Holmes was suggesting thatthe meaning of any written law is determined by the individual judges interpreting them, anduntil a judge has weighed in on a legal issue, the law is ultimately little more than an exercise intrying to guess the way a judge will rule in a case.
II. Approaches to Legal Positivism
According to John Austin,
“the existence of the law is one thing its merit or demerit isanother. Whether it be or be not is one enquiry; whether it be or be not conformable to an
Legal Positivism - Further Readings at Law.Jrank.Org Official Website