SARSUNA LAW COLLEGE

Submitted By:

Diptajit Das

Roll No. : SLC/20/156

Paper: Jurisprudence

Class: Three-Year L.L.B. (Hons.)

Paper No: LB101C

Semester: 1ST SEM

Topic: “According to positivist law is nothing but the will of the

sovereign but realist opposes this and they put much emphasis on
judges” On the basis of jurisprudential justification discuss the above
stated comment
Under The Supervision Of:

Prof. Chayan Chakrabarty

Year: 2021

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 TABLE OF CONTENTS

CONTENTS PAGE NO.

1. Introduction - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 3-4
1.1.Introduction
1.2.Research Problem
1.3.Objectives
1.4.Methodology
1.5.Sources of Study
2. Introduction to legal positivism - - - - - - - - - - - - - - - - - - - - - - - 5
3. Approaches to legal positivism - - - - - - - - - - - - - - - - - - - - - - - 6-12
4. Conclusion - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 13

Acknowledgement ------------------------------- 14

References - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 15

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 Chapter - 1
1.1. INTRODUCTION

For the "jurisprudence" of courts, see Case law.

"Concept of law" redirects here. For the book by H. L. A. Hart, see The Concept of Law.
Philosophers of law ask "what is law, and what should it be?"
Jurisprudence, or legal theory, is the theoretical study of law. Scholars of jurisprudence
seek to explain the nature of law in its most general form and provide a deeper understanding
of legal reasoning, legal systems, legal institutions, and the role of law in society.[1]
Modern jurisprudence began in the 18th century and was focused on the first principles
of natural law, civil law, and the law of nations.[2] General jurisprudence can be divided into
categories both by the type of question scholars seek to answer and by the theories of
jurisprudence, or schools of thought, regarding how those questions are best answered.
Contemporary philosophy of law, which deals with general jurisprudence, addresses
problems internal to law and legal systems and problems of law as a social institution that
relates to the larger political and social context in which it exists.[3]
This article addresses three distinct branches of thought in general jurisprudence.
Ancient natural law is the idea that there are rational objective limits to the power of
legislative rulers. The foundations of law are accessible through reason, and it is from these
laws of nature that human laws gain whatever force they have. [3] Analytic
jurisprudence (Clarificatory jurisprudence) rejects natural law's fusing of what law is and
what it ought to be. It espouses the use of a neutral point of view and descriptive language
when referring to aspects of legal systems. [4] It encompasses such theories of jurisprudence as
"legal positivism", which holds that there is no necessary connection between law and
morality and that the force of law comes from basic social facts;[5] and "legal realism", which
argues that the real-world practice of law determines what law is, the law having the force
that it does because of what legislators, lawyers, and judges do with it. Normative
jurisprudence is concerned with "evaluative" theories of law. It deals with what the goal or
purpose of law is, or what moral or political theories provide a foundation for the law. It not
only addresses the question "What is law?", but also tries to determine what the proper
function of law should be, or what sorts of acts should be subject to legal sanctions, and what
sorts of punishment should be permitted

1.2. RESEARCH PROBLEM:

 Study of the different facts regarding the schools of jurisprudence.

1.3. OBJECTIVES:

 To study the concept of the different schools of the jurisprudence.

 To know the aspects of different cases
 To evaluate the exceptions of the said rules

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1.4. METHODOLOGY:

This paper will rely on secondary data in the form of Journal Articles to explain the
main objective, and the secondary data in turn, will be critically analyzed. So, it will
be qualitative in nature. The objectives of the project will be verified when the project
is concluded, as a form of a top-down method.

1.5. SOURCES OF STUDY:

Secondary sources in the form of written documents such as Books, Magazines, Texts,
reports, and Journal Articles etc served as sources of study for this project

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 Chapter - 2
Introduction to Legal Positivism

Definition

Positivism is from the Latin root positus, which means to posit, postulate, or firmly
affix the existence of something. Legal positivism is a school of jurisprudence
whose advocates believe that the only legitimate sources of law are those written
rules, regulations, and principles that have been expressly enacted, adopted, or
recognized by a governmental entity or political institution, including
administrative, executive, legislative, and judicial bodies. The basic question to be
asked when talking about this theory is “What is law?” Is it written? Where does it
come from? Legal positivism is a theory which answers these questions. Legal
positivism is the legal philosophy which argues that any and all laws are nothing
more and nothing less than simply the expression of the will of whatever authority
created them. Thus, no laws can be regarded as expressions of higher morality or
higher principles to which people can appeal when they disagree with the laws. It
is a view that law is a social construction. The creation of laws is simply an
exercise in brute force and an expression of power, not an attempt to realize any
loftier moral or social goals. Therefore, from a positivist perspective, it can be said
that “legal rules or laws are valid not because they are rooted in moral or natural
law, but because they are enacted by legitimate authority and are accepted by the
society as such”.

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 Chapter - 3
Approaches to Legal Positivism

According to John Austin, “the existence of the law is one thing its merit or
demerit is another. Whether it be or be not is one enquiry; whether it be or be not
conformable to an assumed standard, is another enquiry.”
The positivists do not say that the law’s merits are unintelligible, unimportant, or
peripheral to the philosophy of law. However, the merits of law do not determine
whether a law or a legal system indeed exists. The existence of a legal system in a
society can be inferred from the different structures of governance present, and not
on the extent to which it satisfies ideals of justice, democracy, or rule of law. The
laws which are in force in a certain system depend on what kind of social standards
its officials recognize as authoritative. They may be legislative enactments, judicial
decisions, or social customs. The fact that a policy is just, wise, efficient, or
prudent is never a sufficient reason for thinking that it is actually the law; and the
fact that it is unjust, unwise, inefficient or imprudent is never a sufficient reason for
doubting it. According to positivism, law is a matter of what has been posited.
There are many versions or interpretations of legal positivism. But perhaps, the
most popular version or interpretation would be that of the Separation Thesis.
According to Hart, a contemporary legal positivist, separation thesis is the essence
of legal positivism. The main point or essence of this thesis is that, the law and
morality are conceptually distinct.
In order to know what your legal rights are, you need to look at what laws your
society has. In order to know what your moral rights are, you need to figure out
What is the true morality? It is possible for a person to have legal rights that the
true Morality says he should not have, and the society might also deny a person’s
legal Rights that the true morality dictates one must have. However, there some
conflicting views on whether there are possible legal systems with such
constraints. In inclusive positivism or also known as incorporations or soft
positivism, it is possible for a society’s rule of recognition to incorporate moral
constraints on the content of law. Contrary to this is the exclusive positivism or
also called as the hard positivism, in which it denies that a legal system can
incorporate moral constraints on legal validity. Some exclusive positivists
subscribe to the Source Thesis. According to this, the existence and content of law
can always be determined by reference to its sources without recourse to moral
arguments.
Going back to Austin’s legal positivism as explained by the separation thesis,
according to some people who have given interpretation to this, based on the
essence of the thesis, the law must be entirely free of moral notions. However, the
very fact that Austin thinks that the specific content of the law considers not only
an inquiry into its existence, but also a separate inquiry into its merit or demerit,
implies that the laws can, and do at least sometimes, reproduce or satisfy certain
demands of morality.

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Herbert Hart, a legal philosopher agrees with Austin. He explained that Austin did
not actually say that the norms of moral law and the precepts of the natural law did
not have any influence in the promulgation of rules and regulations. In addition to
this, he also said that Austin did not imply that positive law is non-moral. A person
may argue that positive law must conform to moral and natural law but to say that
positive law is null and void simply because it is conflicting with the moral and
natural law is foolish and absurd.

THE LAW AND THE STATE/THE SUPREME POLITICAL SUPERIOR

In Thomas Hobbes’ and John Austin’s legal positivism, the state is perceived as
the creator and enforcer of the law who is therefore, vested with the power to
“inflict an evil or pain in case its desire is disregarded”. Therefore, the law is the
expression of the will of the state laying down the rules of action upheld by force.
But this does not mean that the state can do no wrong in the expression and
enforcement of its will, however, even if a wrong is done by the state, no right can
be claimed against it.
From the concept of law of the positivists, the supreme political superior is the
state, as a collective legal association under the rule of the majority. The legal
doctrine of non-suability was derived from this concept.
But it must be remembered that the exercise of the will of the supreme political
superior by the government is not absolute. When there is a deliberate and
unrelenting disregard of the will of the supreme political superior in the exercise of
governmental powers, the majority members of the society may blunt, curb, or
even deny by response the adverse governmental challenges.
There are two ways of manifesting the popular response of the people. One is by
an electoral response, which is a peaceable type. Electoral response is set not too
far apart nor too closes to each other. The second type is the revolutionary
response, which is an uprooting type. The second type is not easily provoked. It
happens or arises only in situations or circumstances in which the people are
having special difficulty and arouses them to engage in this kind of response in
order to check and contain the excesses in the exercise by the government of the
powers delegated to it. Depending on the intensity or graveness of the
governmental challenge, the people may decide to resort to this response or not.
When the challenge is only minimal, most probably it will just be ignored by the
people since it is not enough to make an impression or not enough to excite or
arouse their collective sense of antipathy. But when the challenge reaches its
maximum intensity or the challenge of the government has assumed such
tremendous proportions, the capacity of the people to respond has been stifled. In
this kind of situation, only with outside assistance or intervention may the will and
power to resist be bargained. But if the governmental challenge is at its optimum
intensity, the people may already act effectively, so as not to allow the
governmental challenge to succeed and reach its maximum intensity.

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There is no hard and fast rule that can be laid down with which to measure the
intensity of the challenge of the government. However, there are some factors that
can serve as a guide. The governmental challenge’s evaluation is a matter that
addresses itself to the conscience of the people. Therefore, the revolutionary
response depends on the combination of the conditions that produce or promise the
best average result for the people.

COMMAND THEORY OF LAW

Austin’s particular theory of law is often called the “command theory of law”
because the concept of command lies at its core. Positive law has a criterion of its
own, namely, the philosophy of legal positivism, which rests on the triune concepts
of sovereign, commands, and sanction. This simply means that any violation of the
command issued by the supreme political superior or the sovereign is an infraction
thereof and subject to sanction.

KELSEN’S PURE POSITIVE LAW

Hans Kelsen, an Austrian jurist and philosopher, reiterated Austin’s idea that “the
concept of law has no moral connotations whatsoever.” During the 20th century,
Kelsen claimed that at that time, the traditional legal philosophies were hopelessly
contaminated with political ideology and moralizing. Hence, Kelsen propounded
the idea of a Pure Theory of Law, which is a theory of Positive Law. It is a general
theory of law, not an interpretation of specific national or international legal
norms; but it offers a theory of interpretation. It is characterized as a “pure” theory
of law because it aims to focus on law alone. It only describes the law and it also
attempts to eliminate or set aside anything that is not law. Its aim is to free the
science of law from alien elements. Kelsen wanted to show his pure concept of
positive law by eliminating any significance of the norms of moral law to positive
law. According to Kelsen, “the law is simply not pure when cluttered with
axiological norms.”
The law according to Kelsen is a system of norms. He maintained that legal norms
are created by acts of will or in other words, products of deliberate human action,
as opposed to moral norms which is by God. In relation to this, the pure law theory
takes only into consideration only the norms created by the acts of human beings,
not norms which come from other superhuman authorities.
Essential Attributes of the Law
The law has three essential attributes, namely, the conscious formulation,
generality, and authoritativeness.
As a conscious exercise of authority, the rule or norm is different or separate from
morals. A specific rule or norm of human conduct must be articulated before there
would be an actual law of any kind. Conscious formulation as an element,
distinguishes a rule or norm of positive law from a rule or norm of morality. In the
case of morality, there is no conscious articulation to lay it down as such. There is
no cause of action to enforce performance of it. However, when they are

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voluntarily done they cannot be undone anymore even on the allegation that their
performance was without legal consideration. An example of a moral obligation is
the obligations provided in Article 1423 of the Civil Code of the Philippines. The
next attribute is known as generality. A rule or norm should not be in the particular
form for that would determine only specific acts, persons, or properties.
Rules or norms should be in general, or in other words, it must prescribe courses of
conduct for all members of a society or for all members of a class.
The last attribute is the authoritative enforcement. When a rule or norm is backed
by the authority of the state, it involves or entails with it a duty to obey. This is the
crucial characteristic of legal rules or legal norms. It is because of this attribute that
sanctions or incentives are provided, giving the people in authority the coercive
competence to enforce the rules or norms within the limits set by law. A sanction is
any eventual evil annexed to the rule or norm and may take the form of some
punishment, specific, or substituted redress, or enforced prevention. This is the The
most influential criticisms of legal positivism all flow from the suspicion that it
fails to give morality its due. The law has important functions in creating harmony
and peace in our lives, advancing the common good, in securing human rights, or
to govern with integrity and yet it has no relevance with our morals.

Critique of Legal Positivism

The most influential criticisms of legal positivism all flow from the suspicion that it
fails to give morality its due. The law has important functions in creating harmony and
peace in our lives, advancing the common good, in securing human rights, or to
govern with integrity and yet it has no relevance with our morals.

Realist Approach

Legal realism is a naturalist philosophy to law. It is of the perspective that

jurisprudence should imitate the natural science methodologies, that is, relying on
empirical evidence. Assumptions must be put to the test by global findings. Legal
realists conclude that legal science can analyze law exclusively through natural
science’s value-free tools, rather than by metaphysical inquiry into the essence and
purpose of the law, which is different and distinct from the law. Legal realism, in
fact, states that the law can not be isolated from its implementation, and cannot be
easily interpreted. This illustrates the importance of recognizing the considerations
present in judicial decision-making by identifying the essence of law in fields such
as legal decisions issued by judges and their deference or rejection to the previous
precedent and the doctrine to final judgment.
Legal realism is characterized as a type of jurisprudence by its emphasis on the law
as it currently appears in reality, rather than the way it works in the books. To this
End, it addressed mainly the conduct of the judges and the conditions that
behaviour affect judicial decision-making processes. As Karl Llewellyn states,

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“Judges stand behind judgements; judges are men; they have human histories as
men.” Therefore, the law did not reside in an abstract domain with universal laws
or values, but rather inseparable from human behaviour and from the ability with
judges to decide the law. To understand legal actors’ decisions and actions, legal
realists turned to the ideas of the social sciences to understand the human
relationships and behaviour that culminated in a given legal result.
The moral realists are contrary to the principles of natural law. Legal realists argue
that these cultures are historical and/or natural concepts and should be addressed
by a variety of psychological and sociocultural hypotheses, perceiving legal
concepts as determined by human behaviour, which should be evaluated
empirically, instead of by theoretical assumptions about the law. Legal realism is
therefore at odds with most versions of legal positivism. Legal realism was largely
a response to late 19th and early 20th-century legal formalism, which became the
prevailing style through most of the early 20th century. It succeeded in its negative
optimism to put suspicion on formalistic expectations that judges actually do as
they meant, such that it is always claimed that ‘we are just realists now.’ However,
realism struggled in its positive aspiration to find a reliable way to foresee how
judges will act than depending on the judges’ explanations.

Importance of Realist theory and its effect

While certain elements of legal realism are still viewed as simplistic or obsolete,
most legal scholars will accept that the realists have been fruitful in their core
ambition of rejecting “formalistic” or “mechanical” legal ideas and legal logic.
Today it is commonly recognised that law is not and can not be an accurate science
and that it is important to identify what judges actually do when deciding cases, not
just what they say they do. As current discussions on judicial independence and
judicial discipline demonstrate, legal experts tend to argue on whether, if ever, it is
appropriate for judges to “create law,” rather than simply “execute” or “apply”
established legislation. But none will argue with the central argument of the realists
that judges (for better or for worse) are always heavily motivated by their political
views, moral interests, human attitudes, and other extra-legal considerations .

Criticism on Realist theory

The Realist theory had witnessed its heyday from the 1920s to the 1940s. Legal
realism was completely replaced in the 1950s by the movement of legal processes,
which considered law as a process of “reasoned elaboration” and asserted those
appeals to “legislative purpose” and some other well-established legal standards
and norms can provide an accurate response to the most-awaited legal questions.
British law thinker HLA Hart, in his 1961 book The Concept of Law, began with
what other academics viewed as a “decisive blow” to legal rationality, challenging
the statistical philosophy of law that OW Holmes has taken on from other realists.

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Hart points out that if a statute is simply a predictor about what courts are about to
do, a judge who is evaluating the legal facts of a dispute before him is actually
thinking, “Why am I supposed to resolve this matter?” As Hart explains in his
theory, that entirely ignores the idea that judge’s use legislations/laws to direct
their rulings, and not as evidence to determine their final judgments. Many critics
have argued that the realists overstated the extent to which statute is “riddled” with
gaps, ambiguities, and so on. The fact that most legal issues have simple, clear-cut
responses that no lawyer or judge would dispute is difficult to reconcile with the
bold arguments of the realists of omnipresent legal “indeterminacy.” Many writers,
including Ronald Dworkin and Lon Fuller, disappointed legal realists for their
harsh effort to distinguish law and morality.

Legal Realism & Legal Positivism

The relationships between legal positivism and legal realism. Legal positivists hold
that all law is positive law, that it is based on social sources. The law is therefore
incomplete: there are legal disputes that cannot be determined by law alone. But
legal realists seem to presuppose that all law is positive, and they affirm that, at
least in appellate cases, judicial decisions are underdetermined by positive law. Are
realists therefore legal positivists? In temper and outlook the doctrines are similar.
One difference lies in their respective attitudes to sources of law. Positivists hold
that many sources of law are binding, at least on judges. Legal realists hold that
many sources are permissive only: even domestic statutes and cases often have
little more authority than, e.g. a doctrine of foreign law. That, in addition to the
more familiar sources of indeterminacy acknowledged by positivists and realists
alike, helps explain why realists think law is so loosely controlling in court, and
why it is often defeated by considerations of policy and preference. Olivecrona
explicitly rejects legal positivism, conceived as the theory that law is the content of
a sovereign will, he is best understood as a legal positivist as this theory is
understood by contemporary jurisprudents. Having discussed Olivecrona’s critique
of will theories of law, which follows closely Hägerström’s critique of such
theories, and having pointed out that Olivecrona introduces a distinction between
voluntaries and non-voluntaries theories of law and maintains that a competent
theory of law must fall into the latter category, I argue that the category of non-
voluntaries theories of law is too heterogeneous to play a meaningful role in the
debate about the nature of law. I also discuss the main tenets of contemporary legal
positivism and argue that there is to be found in Olivecrona’s legal philosophy a
commitment (1) to an abstract, but not to a more concrete, version of the social
thesis, (2) to the separation thesis, and (3) to the thesis of social efficacy, but not to
the semantic thesis. In addition, I discuss Olivecrona’s illuminating distinction
between English (or naturalist) legal positivism and German (or idealist) legal
positivism and its relevance to certain questions raised in the well-known
Hart/Fuller debate about wicked legal systems. Finally, I argue that while many
contemporary legal positivists conceive of law as a system of norms or rules, and

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while Olivecrona does maintain that law is a matter of rules, he does not see law as
a system of rules the relationships between legal positivism and legal realism. Legal
positivists hold that all law is positive law, that it is based on social sources. The law
is therefore incomplete: there are legal disputes that cannot be determined by law
alone. But legal realists seem to presuppose that all law is positive, and they affirm
that, at least in appellate cases, judicial decisions are underdetermined by positive law.
Are realists therefore legal positivists? In temper and outlook the doctrines are similar.
Positivists hold that many sources of law are binding, at least on judges. Legal realists
hold that many sources are permissive only: even domestic statutes and cases often
have little more authority than, e.g. a doctrine of foreign law. That, in addition to the
more familiar sources of indeterminacy acknowledged by positivists and realists alike,
helps explain why realists think law is so loosely controlling in court, and why it is
often defeated by considerations of policy and preference.
Legal positivism is a separate topic from legal realism. The discrepancies are
important analytically as well as normatively. Both structures consider the rule as a
human creation. Positivists, unlike the American legal realists, claim that in certain
situations the statute gives fairly defined instructions to their topics and judges, at least
in the courts. Niklas Luhmann concludes “We may reduce positive law to a formula,
the law is not only raised (that is, selected) by judgment, but is also true by decision-
making power (thus dependent and variable). Positivists, though, do not say that
anybody’s judgment makes a law valid. According to Hart, the truth of legislation is a
question of court customary and collective processes. As about the legal value of the
statute, it is a question of universal values that both positivists and realists uphold.
In this situation, “the force of judgment” has no important function, because
individual judgments never serve to establish a collective norm of acceptance, so it
would be implausible to believe that moral values are thus determined by somebody.

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 Chapter - 4
Conclusion

There are links between legal realism and legal positivism. Judicial positivists
contend that all legislation is a good rule because it is socially dependent.
Therefore, the rule is incomplete: there are legal issues that cannot be settled by
statute alone. Yet legal realists tend to believe that all legislation is good, so they
argue that positive law under-determines judicial rulings, at least in appellate
proceedings. My point is that one discrepancy resides in their respective
approaches to sources of law after such logical mistakes are put aside. Positivists
believe that certain branches of legislation, at least on judges, are binding. Legal
realists contend that other documents are simply permissive: only domestic laws
and cases sometimes provide no more jurisdictions, for example, an international
law standard.

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 ACKNOWLEDGEMENT
It is a matter of great pleasure to present this project on “ According
to positivist law
is nothing but the will of the sovereign but realist opposes this and
they put much emphasis on judges” On the basis of jurisprudential
justification discuss the above stated comment I take this opportunity to
thanks our respected Principal DR. ATASI ROY KHASKEL for giving me an opportunity to
work on this field. I am very thankful to my supervisor PROF. CHAYAN CHAKRABARTY
for her full support in completing this project work Finally, I am gratefully acknowledge the
support of my family/friends and would also like to thank to them who had given me full
support and co-operated with me to carry out these research work and help with me for the
project work by filling up the report.

DIPTAJIT DAS

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 REFERENCES
1. GOOGLE
2. WEKIPEDIA
3. INDIAN KANOON
4. LEGAL PEDIA
5. JURISPRUDENCE AND LEGAL THEORY BY V D MAHAJAN
6. JURISPRUDENCE, INTERPRETATION AND GENERAL LAWS –
BY ICSI
7. INDIA.GOV.IN
8. LEGISLATIVE.GOV.IN

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