Austin’s analytical positivism or imperative law

 Austin confined his study only to positive law

 He applied analytical method for this purpose.
 By law he meant only law proper.( which means that moral or other laws
were termed as improper laws)

Positive law??

Aggregate of rules set by men as politically superior to men, politically inferior

subjects.

Austin’s positive laws has the following characteristics

 Command
 Sanction
 Duty
 Sovereign

He distinguished positive laws from positive morality

 Excludes the consideration of goodness or badness in the realm of law

 No room for what an ideal and just law is.
 Existence of law is one thing. Its goodness or badness are other.
 Morals and laws are separate.
 Distinguished law from morality.
 Distinguished law from ethics
 Positive law must be legally binding though it is unjust.

Criticism

 Its basic emphasis is on obligation. It uses the threat of force. Without any
reference of it being legitimate, moral- social obligation.
 Such environment compels the subjects to obey the law meekly even it is
unjust and unfair.
Salmond:

 Completely divesting the law from morality and ethics makes the law
ineffective or less effective.

Lon fuller:

 Laws in derogation of popular will and needs of society would be short

lived. It will not muster public support.
 Laws are made to regulate conduct. They cannot be devoid of morality.

Gustav Radruch:

 it will lead to dictatorship (Nazi Germany)

 So positive law can never be separated from morality.

 Customs are overlooked

 Precedents are overlooked.
 International law just positive morality.
 Command over emphasized
 In modern democracies laws are nothing but are expression of general will
of the majority of people. So command aspect has lost its significance.
 Law and morality relationship is overlooked
 Sanction alone are the only means to induce obedience.( fear, sympathy,
reason)

Despite all the criticism, credit for heralding a new era in English legal thought
goes to Austin.

The shortcoming or his theory has paved way for further improvement on the
subject. He is considered to be the pioneer of modern positivism
Admired by Bentham and mill.