Positivism

Imperative or command theories

Main focus on Bentham and Austin.

Positivism is concerned with law that is posited by humans. As opposed to natural law which is based on
the intrinsic values possessed by humans.

Austin built on the work of Bentham.

Ratnapala (2017) notes that 'British legal positivist's regard the law as 'social fact', by which they mean
that law is found in the actual practices or the institutions of society. He says that law is created by
people, recognised and enforced by a competent human authority. The law 'as it is' can be separated out
from what it 'ought to be'.

Positivism is found in rules declared by legislature and courts or those who enforce it.
Practically, it is helpful to make the law clear and certain, so people know their rights and duties if law as it
is and law as it ought to be are kept distinct.

Law and morality do not need to be connected.

Laws can be based on moral precepts

Law does not cease to be law if they fail a moral test that is not a law in itself.

Judges can have discretion as to whether morality informs their legal decision making.

Legal positivists' make a distinction between legal laws and non-legal laws. Legal law derives from rules
by a law making authority existing as a fact.

Thomas Hobbes
Founding father of positivism.

Hobbs acknowledges as part of the social contract…. People need to be prepared to give up certain
freedoms in exchange for safety and protection.

Hobbs asserted that law does not flow from God's creation but is posited by man.

According to Hobbes, the sovereign, was not necessarily an individual. It could be an elected parliament
or group (Ratnapala 2017).

Ratnapala notes that Hobbes argued that, unless there was a supreme political authority, people would
be in constant conflict. "The life of a man is solitary, poor, nasty, brutish and short". There is a need for a
strong, supreme power to rule over men who, if left to their own 'state of nature' will descend inot conflict,
war and other evils when pursuing their own egotistical agenda (Marshall 2022).

Jeremy Bentham

Utilitarian. Greatest happiness for the greatest number of people. He thought that common law was not
law – it is authorless. It is an uncodified body of rules – not law. He wanted all laws codified
Bentham believed that administrative orders, military commands and judicial decisions were not law.

John Austin – Command theory of law

Friend of Bentham. Austin regarded the law of God (the scriptures) as a source of law.
He differentiates between laws 'properly so called' (based on authority) and laws 'improperly so called'
(based on opinion).
Positive law is that which is set by political superiors to political inferiors. Unlike Bentham, Austin saw
value in the common law and the role that judges played in creating law.
Argued that there should be limits to judge's law making powers for the law to maintain legitimacy.

Three elements to Austin's positive law:

 A political sovereign
 Command
 Sanction

According to Austin's theory, you cannot have positive law without a political sovereign.

Law = Rules + Sovereignty