Dr. Mohammad.

Salim
Associate Professor,
Symbiosis Law School, Noida
Symbiosis International
University, Pune
26 - 31 Dec. 2010

Analytical School of
Jurisprudence

LEGAL POSITIVISM
LEGAL POSITIVISM
 The most important aspect of law is its relation to the state,
 They treat law as the command emanating from the sovereign i.e., state,
 It confines study of law “as it actually exists i.e., positus” irrespective of its
past or future,

 For the reason Analytical School / Analytical Positivism / Legal Positivism are

used synonymously,

 Political Science and Analytical School can be said to have same fate,

 Although the leader of political science is Aristotle , it was propounded by Plato,

 In Positivism, Austin is the leader but it was propounded by Jeremy Bentham,

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JEREMY BENTHAM (1748-1832)
Champion of codified law advocated reform in the substantive law structure through a

process of analysis. Distinguished expository jurisprudence (what the law is) from

censorial jurisprudence (what the law ought to be). He believed that every law may be

considered in the light of eight different aspects;

 Source; law as the will of the sovereign,

 Subject; persons or property,

 Objects; acts, situations or forbearance,

 Extent; law covers a portion of land on which acts have been done,

 Aspect; directive or sanctional,

 Force; execution
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 Remedial state appendages,

 Expression,
BENTHAM’S UTILITARIANISM
 Bentham as individualist believed that the function of law is to emancipate individual
from the bondage and restraint upon his freedom.

 He supported the economic principle of ‘laissez-faire’ i.e., minimum interference of the

state in the economic activities of the individuals.

 The right aim of legislation is the carrying out of the principle of utility i.e., the property
or tendency of a thing to prevent some evil (pain) or procure some good (pleasure).

 The end of law is the promotion of ‘the greatest happiness of the greatest number’.
Happiness of the social order is to be understood in the objective sense by attaining four
major goals;
 Subsistence
 Abundance
 Equality
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 Security
OPERATIONALISING BENTHAMITE
 Bentham recognised unlimited parliamentary sovereignty. He pleaded
for codification and opposed judge made laws.

 J S Mill, agreed with Bentham and called his Utilitarianism as

Doctrine of Hedonism or theory of pain and pleasure.
 Pleasure and pain were the ultimate on which a law was to be judged.
Justice implies an urge to retaliate for a wrong i.e. rebel against injury.

 Consideration of morality has no place in utilitarianism. He introduced

legal positivism and treated legal theory as a science of investigation
which should be approached through scientific method of
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experimenting and reasoning.
BENTHAM’S IDEA OF JUSTICE
 Justice is social happiness guaranteed by a social order and
protecting certain interests socially recognised by the majority as
worthy of being protected.
 Justice is based on a system of values i.e. varying set of values of
different societies i.e. morals.
 The individual living in the society have to conform to the set of
values or norms and rationalize his conduct or behaviour
accordingly.

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FRIEDMAN CRITICISED BENTHAM;
 In an effort to blend materialism with idealism, Bentham
underestimates the need for individual discretion and flexibility,

 His theory fails to balance individual interests with the interests of

legislators,

 Pleasure and pain alone cannot be tests of the adequacy of law,

 Bentham’s interest of an unlimited number of individual shall be

conducive to the interest of the community i.e. freedom of enterprise
automatically leads to greater equality, however, in actual practice, it is
freedom of enterprise which is resulting in great inequalities globally,

 Man-made law or apostle of individualism is the founder of state

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socialism,
JOHN AUSTIN – ANALYTICAL POSITIVISM
 Confined study only to the positive law and applied analytical method
for the purpose,
 Positive law is;
 “Laws properly so called” as distinguished from morals and other laws
which are “laws improperly so called” which lack force or sanction of the
state,
 “the aggregate of rules set by man as politically superior to men as politically
inferior subjects”,
 Essential attributes of positive law are;
 Command,
 Sanction,
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 Duty,
 Sovereignty,
JOHN AUSTIN (1790-1859)
Austin defined law as “a rule laid for the guidance of intelligent

beings by an intelligent being having power over him”, laws are;

 Laws set by God for men, and

 Human laws-laws made by man for men,

 Positive morality is not law properly so called but it is law by

analogy.

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IMPERATIVE THEORY OF LAW
 The study and analysis of positive law alone is the appropriate

subject matter of jurisprudence.

 Austin says “the subject – matter of jurisprudence is positive law

– law simply and strictly so called, or law set by political superior

to political inferiors.” The chief characteristics of positive law

are;
 Law is a command,

 Imposing a duty,

 Enforced 10
by sanction,
LAWS NOT COMMANDS

 Declaratory or explanatory laws,

 Laws of repeal,
 Laws of imperfect obligation,

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Criticism of Austin’s imperative theory
 Customs overlooked i.e. no historical basis,
 Permissive character of law i.e. privilege conferring laws ignored,
 No judge made law,
 International law as a positive morality,
 Notion of Command over-emphasised,
 Law and morality inter-relationship ignored,
 Sanction induce obedience,

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INDIA AND ANALYTICAL POSITIVISM
 The advent of British rule in India brought about radical changes

in the then exiting legal system. The improvised system was

based on British imperialism sought to impose English laws and

the political institutions in India. Lord Macaulay, the law member

of the Governor General-in-Council, rejected the ancient Indian

Legal and Political Institutions.

 Henry Main criticised Ancient Indian Jurisprudence.

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INDIA AND ANALYTICAL POSITIVISM
 The codified British laws were akin to Austinion concept of Positive law

having element of certainty, definiteness, effectiveness, enforcement and

sanction.

 The British King in parliament was the supreme sovereign authority to

make laws for the governance of India and they were above law enacted

for India. The then Indian legislature had no authority to change law and

the subjects were bound to obey those laws. Thus all the characteristics of

positive law i.e., command, duty, sanction and sovereign were present in

the pre-independence Indian Legal system.

 The post independence India is a blend of Natural theory and Legal

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Positivism.
INDIA AND ANALYTICAL POSITIVISM
 IPC - Section 303. Punishment for murder by life-convict;
Whoever, being under sentence of [imprisonment for life],
commits murder, shall be punished with death.
 IPC - Section 309. Attempt to commit suicide; Whoever
attempts to commit suicide and does any act towards the
commission of such offence, shall be punished with simple
imprisonment for term which may extend to one year [or with
fine, or with both]. 
 Population control measures in India/China.
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BINDINGNESS AND RECOGNITION COMES FROM PEOPLE
 E.g. Preamble to the Indian Constitution
 What is the Bindingness of the Preamble?
 State of West Bengal v. Union of India AIR1974 SC 1510 (Berubari case)-

The Preamble was not a part of the Constitution and therefore it could never be
regarded as a source of any substantive powers.
 Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461

The preamble is the part of the constitution. Though in any ordinary stature not much
importance is attached to the preamble, all importance has to be attached to the
preamble in a Constitutional statute.
 Randhir Singh v. Union of India, AIR 1982 SC 879

The Supreme Court relying on the Preamble, Articles 14, 16 held that Article 39 (a)
envisages a constitutional right of “equal pay for equal work” for both men and women.
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HART’S ANALYTICAL POSITIVISM
Law is a system of two types of rules the union of which provides key to the
science of jurisprudence;
 Primary rules; duty imposing rules, binding because of popular acceptance
e.g., rules of kinship, family sentiments etc., there is no agency for deciding
these rules, they are un-official rules suffer from three defects;
 Uncertainty,
 Static character, and
 Inefficiency,
 Secondary rules; power conferring rules, enable the legislators to modify
their policies and law thereupon to accord with social needs, in fact seek to
complement or remedy the defects of primary rules, 17
 Hart’s positivism explains the existence of law with reference to
the rule of recognition binding force of which depends upon its
acceptance. The validity of the law is to be tested on the basis of
rule of recognition similar to Austin’s ‘Sovereign’ and Kelson’s
‘Grundnorm’.

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POSITIVISM- IT’S MEANING
Professor H L A Hart has given five meanings of the term ‘Positivism’.

1. Laws are commands of human beings;

2. There is no necessary connection between law and morals as it is and ought to be;

3. The analysis of legal concepts is

A. worth pursuing;

B. To be distinguished from historical inquiries into the causes and origins of law and the social
phenomena;

4. A legal system is closed logical system in which correct legal decisions can be deduced
by logical means from predetermined legal rules without reference to social aims,
policies and moral standards;

5. Moral judgments cannot be established or defended as statements of facts.

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1. LAW IS A COMMAND OF HUMAN BEINGS
The essentials of commands are:
 Command shall be general. It shall be issued for all persons.
 E.g. Article 14 of the Constitution of India: Equality before law and equal protection of law.

 That command shall be obeyed by the community because society is politically

organised one.
 E.g. Democracy: the Government of the people, by the people and for the people.
 Post Office Bill: Although this Bill had political support it was not passed as was not accepted by the
Society which wasn’t a mere society but a politically organised society.
 Delhi Government orders and the decision of the Delhi High Court about ‘Women Helmet Wearing’
is in-effective in Delhi due to anti public opinion.

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2. Separation between law and morality,

3. Law must be distinguished from historical, sociological, philosophical or any other

inquiry,
 Dean Roscoe Pound “Law is precept”. It means it is a principle accepted and followed
by society on its own continuously. It means it is indirectly recognised by legal system.
 There are many customary laws i.e. customs having recognised as source of law.
 E.g. the common law is based on customary principles. Hindu Marriage Act- Under
Section 5, marriage between near relations is prohibited provided the custom gives
permission.

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4. LEGAL SYSTEM IS THE CLOSED LOGICAL SYSTEM
 A legal system is closed logical system in which correct legal decisions can be deduced
by logical means from predetermined legal rules without reference to social aims,
policies and moral standards.
 It means law should be based on logic. Question arises what we mean by logic? Logic is
such a thing or principle which gives some sort of representation to that thing.

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 In State of Bihar v. Kameshwar Singh, AIR 1952 SC 352 the Supreme Court relied on
Article 39 in deciding that a certain Zamindari Abolition Act had been passed for a
public purpose within the meaning of Article 31.
 In Re Kerala Education Bill, AIR 1957 SC 956, the Supreme Court observed that the
directive principles cannot override the fundamental rights, nevertheless, in determining
the scope and ambit of fundamental rights the court may not entirely ignore the
directive principles but should adopt ‘the principles of harmonious construction and
should attempt to give effect to both as much as possible.
 In Kesavananda Bharti v. State of Kerala, AIR 1978 SC 1461, the supreme Court has
said that “fundamental rights and directive principles aim at the same goal of bringing
about a social revolution and establishment of a Welfare State and they can be
interpreted and applied together”.

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5. THE MORAL STATEMENTS CANNOT BE PROVED
AS STATEMENT OF FACTS

 E.g. Good Behaviour

 It cannot be proved from his behaviour, performance mark.

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NATURE OF SOVEREIGN

 Prof Joseph Raz has outlined four attributes of nature of sovereign as

follows:

 1. Not subordinate: It means sovereigns, legislative, executive power

cannot be conferred or revoked by law because he is beyond law;

 2. Illimitable: It means that there are no restrictions, checks to curb his

legislative power. He can make any law.

 3. Unique: He is one of its own kinds, no one is like him.

 4. Unified: Powers are concentrated in single hand, may be an individual or

group of individuals. 25
1. SOVEREIGN IS NOT SUBORDINATE

 Article 358, Chapter III of the Constitution of India:

 After the 44th Amendment Act, 1978

 Article 358 provides that when the proclamation of emergency is made by

the President under Article 352 , the freedoms guaranteed by Article 19 are
automatically suspended and would continue to be so for the period of
emergency.

 Any law, executive order made by the State during this period cannot be
challenged on the ground that they are inconsistent with the rights
guaranteed by Article 19.
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 Article 358 makes it clear that things done or omitted to be done
during the emergency cannot be challenged even after the
emergency is over.

 Thus Section 358 removes restriction on the Legislative and

Executive powers of the state imposed by the Constitution.

 Article 359

 It empowers the President to suspend the right to move any Court for the
enforcement of rights conferred by Part III of the Constitution (except
Articles 20 and 21) during the continuance of emergency.
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 Prior to the 44th Amendment

 A.D.M. Jabalpur v. Shukla AIR 1976 SC 1207 (Habeas Corpus Case)

 The respondents challenged the validity of the Proclamation of Emergency by

the President under Article 352 and the order of detention made against them
under Section 3 of the MISA. They filed applications in different High Courts.

 The High Courts held that notwithstanding the continuance of emergency and the
Presidential Order suspending the enforcement of rights conferred by Articles 19,
21 and 22 the High Court could examine:

 1. whether an order of detention was in accordance with the provisions of the

MISA; or

 2. whether the order was malafide.

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 The State appealed to the Supreme Court.
 The Supreme Court by 4:1 majority (A.N.Ray, D.J. Beg, Chandrachud and Bhagwati,

JJ )- (Khanna J. Dissenting) held that in view of the Presidential Order no person had any

locus standi to move any writ-petition under Article 226 before a High Court for habeas

corpus or any other writ or order or direction to challenge the legality of an order of

detention on the ground that the order was under or in compliance with the Act or was illegal,

or was vitiated by malafides factual or legal or has based on extraneous considerations.

 The moment the right to move any Court for enforcement of the Article 21, was suspended,

no one could move any court for any redress.

 Position after 1978

 In view of the 44th Amendment, 1978 the law laid down in Habeas Corpus case is no longer a

good law.

 Henceforth, Arts 20 and 21 cannot be suspended during the Proclamation of Emergency.

 Consequently a person will be entitled to challenge the validity of his detention even during

the operation of emergency.

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 United Kingdom and European Union

 In case of dispute between the law made by the UK Parliament and that of
European Law, it is the European Union law which shall prevail.
Maastricht Treaty’s

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 In ancient India, Hindu Kings, although were the rulers, were bound by
laws formulated, enforced by them.

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2. ILLIMITABLE
 2. Illimitable

 Article 53 (1) says that the executive power of the Union shall be vested in
the President and shall be exercised by him either directly or through
officers subordinate to him in accordance with the Constitution.

 Article 74: Before the 42nd Amendment, 1976

 Originally , Article 74 (1) provided that there shall be Council of Ministers

with the Prime Minister at the head, to aid and advise the President in the
exercise of his functions.

 Article 74 (2) says that the question whether any, and if so, what advice was
tendered by the Ministers to the President shall not be inquired into in any
court.
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 Prior to the Constitution (42nd Amendment) Act, 1976 there was no clear provision in
the Constitution that the President was bound by the ministerial advice.

 A purely literal and legalistic interpretation of these Article conveys the impressions
the President, if he so desire, could become a dictator.

 After the 42nd Amendment Act, 1976

 This amendment removed all doubts about the position of the President under the
Indian Constitution.

 It says “there shall be a Council of Ministers with the Prime Minister at the head to aid
and advice the President who shall, in exercise of his functions act in accordance with
such advice”.

 It makes it wide clear that the President shall be bound by the advice of the Council of 33
Ministers.
 Question arises Who is Supreme? The President or the Prime Minister and
his Council of Ministers?

 After the 42nd Amendment, now the President has to work as per the advice of
the Prime Minister and council of ministers. The pendulum of power has shifted
from one extreme to other extreme i.e. Absolute power to no power.

 Have we created new Absolute power holder?

 To answer this question, it becomes necessary to study the relationship between

the President and the Prime Minster and his Council of Ministers after the 44 th
Amendment Act, 1978 which added the following proviso in clause (1) of Article
74.

 “Provided that the President may require the Council of Ministers to

reconsider such advice, either generally or otherwise, and the President shall
act in accordance with the advice tendered after such reconsideration”. 34
3. UNIQUE

 He is one of its own kinds, no one is like him.

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4. UNIFIED

 Powers are concentrated in single hand, may be an individual or group of

individuals.

 In India, the President is the head of the State. All the powers are
concentrated into his hands. However he cannot exercise these powers
without consultation with the Prime Minister and his Council of Ministers.

 According to Article 75 (1), the Prime Minister shall be appointed by the

President and other Ministers shall be appointed by the President on the
advice Prime Minister.

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CONCLUSION
 Austin’s sovereign concept can prevail only in autocratic state, in limited
sense.
 International law is based on two principles of International comity, every
sovereign state is absolutely sovereign within its sphere and every sovereign
state should respect other sovereign state.
 Pan Am Aeroplane Blast
Although Colonel Gaddafi, the sovereign leader of Libya, controls Libya
through dictatorship, he had to bowed down to International pressure on the
locker bee incident.
 Iraq-Kuwait War
Late Saddam Hussain, who tried to control Kuwait after evasion in 1993, had
to leave and run back into his own country thereafter. It did not end there
rather he was forced down to surrender on his own soil by the Americans and
later on sentenced to death on 30th December 2006 at 8:30 am (Indian
Standard Time). 37
 End of Taliban Ruled Government in Afghanistan
WHAT DO YOU MEAN BY COMMAND?

 To call a particular act ‘command’, Prof Joseph Raz laid down six essential
conditions.

 1. Austin desires some other person to behave in a certain way;

 2. He has expressed his desire;

 3. He intends to cause harm or pain to these persons if his desire is not

fulfilled;

 4. He has power to do so;

 5. He has expressed his intention to do so;

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 6. He expresses the content of his desire.
 1. Austin desires some other person to behave in a certain way

 2. He has expressed his desire

 Indian Penal Code, in general, lays down criteria to be followed by

individuals in day to day affairs.

 E.g. Section 378 IPC defines offence of ‘Theft’.

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 3. He intends to cause harm or pain to these persons if his desire is not
fulfilled

 4. He has power to do so

 5. He has expressed his intention to do so

 6. He expresses the content of his desire

 Section 379 lays down the punishment for the offence of ‘Theft’.

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CRITICISM
 Austin’s description of law closely approximates ‘law that imposes duties’
and not the laws ‘that are power conferring laws or rules of competence’.

 E.g. Penal Statute are duty imposing.

 In case of the criminal law, it is not individual’s discretion whether to obey or

not. He has to obey.

 What is about ‘civil law’?

 It is power conferring laws or rules of competence.

 E.g. Indian Contract Act. It is not binding on all the subjects unless they
desire, need. In case of contract, it is one’s own discretion, whether to enter 41
into a contract with particular person or not.
 John Austin does not regard ‘International Law as true law’.

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 Is law always ‘the command’ of the determinate superior authority i.e.
the sovereign?

 The clear cut answer is ‘no’. Anti-social practices like SATI, DEVDASI,
DOWRY are prohibited by laws which are the outcome of strong social
resurrection.

 Although law is command of sovereign, it’s validity is to be proven on the

touchstone of ‘Judicial Pyre’. Sovereign cannot pass any law and be with it.
Judiciary may declare it to be void.

 TADA, Section 309 IPC

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