ANALYTICAL POSITIVIST SCHOOL

I. Introduction

Legal Positivism developed in reaction to Natural Law theories and it distinguished itself as a
movement after breaking away from the Natural law system of theorizing. The difference
between the two school of jurisprudence lies in the fact that legal positivist tend to prefer to
focus on real, observable world and its actual existence. Positivism seeks to study what is law
rather than the ethical or normative approaches.

II. Main Thinkers – A comparative Analysis

Bentham, Austin, Hart

Particulars Jeremy Bentham John Austin Hart

Founder of Early Bentham’s student. Refined Positivist

Introduction positivist theory of One of the architects theory of law
law. of Utilitarianism and
Legal positivism.

Period 1748- 1832 1790-1859 1907 - 1992

Introduced the Defined Law as Introduced the

Main contribution command theory or command of Social Convention
the imperative theory. sovereign backed by Theory
However, it did not sanction.
gain recognition as
much as Austin’s
theory.

Facts like sovereignty Agreed with Bentham Hart's main points

Explanation and sanction was key on this point and went that created the
to understanding law. on to elaborate the modern idea of
same. positivism today are
a disagreement of
John Austin's theory
that law is the
command of the ruler
backed by the threat
of punishment.
 However, what Hart
brought up is that not
all law is coercive or
a command but that
some allow those to
create contracts or
other legal
documents. 
Many Determinate  Hart had criticized
different groups that Group of living that sovereign had
people Obey. Thus, person(s) whom ultimate power. H. L.
Sovereign Command there are many the Bulk Obeys A. Hart argues that
authorities that can be Sovere the command theory
recognized as ign Obeys Nobody cannot distinguish
sovereign. Schools, between a legitimate
courts etc government and an
armed robber
Sources of law Source of law is the Law simply and He puts stress on
will of the sovereign strictly so called or obligation.He takes
in a state and by set by political up example of
sovereign he meant superiors for gunman and
any person or inferiors. Law may be distinguishes thesis
assemblage of person set down as a rule for of Austin. If he
to whose will a whole guidance of an points gun and asks
political community intelligent being by for my purse,
are supposed to be in an intelligent being otherwise he loses his
a disposition to pay having power over life and forced to
obedience and that in him. His law is based give his purse
preference to the will on the power of the because he is obliged
of any other person superior to do so. First 4
and the sovereign can chapters – he goes on
make law or adopt criticizing the
laws previously command of the
issued by former sovereign.
sovereign or
subordinate
authorities.
Bentham recognizes Group follows The foundation of
Motive the reward theory for command as it is legal system doesn’t
ascertaining the associated with depend upon in the
groups intention. He punishment. habit of obedience to
believes group gets a a legally unlimited
reward of not getting sovereign but
punished by depends upon an
following the ultimate rule of
command. recognition which
 provides a system of
rules with its criteria
of validity.

1. Legal Systems and comparative analysis- Traditional civil law and contemporarily
existed law in ancient India and hence the common law system.
2. Understanding of law- a comparative analysis of Natural Law and Positivism.

On the five nine- 2 Questions to be answered of 10 marks each.

Social contract theory