SEMINAR TEN

AN OVERVIEW OF LEGAL POSITIVISM

Ideas Postulated Under Positivism

Positivism is based on the perception that an appropriate description of law requires to be
separated from moral judgments – for instance, in relation to the value of the present law, or with
respect to the manner in which law should be amended or developed.1 The origin of legal
positivism may be traced to the ides of Thomas Hobbes, a political theorist and philosopher.2

Legal positivism is, first and foremost, the thesis that the existence and content of law depends
on social facts and not on its merits (whether good or bad). What positivism says is that law
merits do not determine whether laws or legal systems exist. Whether a society has a legal
system depends on the presence of certain structures of governance (for instance, a political
legislature or parliament with the mandate to make laws), not on the extent to which the legal
rules made satisfies ideals of justice, democracy, or the rule of law. What laws are in force in that
system depends on what social standards its officials recognize as authoritative; for example,
legislative enactments, judicial decisions, or social customs. Positivists argue that the fact that a
certain rule or regulation would be unjust, unwise, inefficient or imprudent is never sufficient
reason for doubting its validity as law.

Second, for positivists, the validity of law is not determined by moral (external) factors but by an
internal criterion that is part of law. They, therefore, advocate for the separation of law and
morals. Morality is not viewed as a criterion for determining the validity of law. For instance,
Hans Kelsen advocates for the grundnorm or basic norm as the validating factor of laws within a
legal system, while HLA Hart states that the validating factor is the rule of recognition. In
addition, Kelsen’s pure theory of law is referred to as such since it focuses on describing the
nature of law without any moral, political and sociological considerations.3

1 Brian Bix, Jurisprudence: Theory and Context (5 edn Sweet and Maxwell 2009 London) 33.
2 Brian Bix, Jurisprudence: Theory and Context (5 edn Sweet and Maxwell 2009 London) 33.
3 Brian Bix, Jurisprudence: Theory and Context (5 edn Sweet and Maxwell 2009 London) 58.
1
Third, positivists reject ‘the idea that legal rights can pre-exist any form of legislation.’4 It is on
such a basis that positivism, unlike natural law theory, could not justify the prosecution of Nazi
German and Japanese citizens accused of having committed war crimes and the crime of
aggression before that alleged crimes had been properly defined under international and domestic
legislation. Positivism is essentially based on the view ‘that individuals have legal rights only
insofar as these [rights] have been created by explicit political decisions or explicit social
practice.’5 In the same vein, Arjun Sengupta observes that in accordance with the ‘legal
positivism, human rights are those rights that are authoritatively given by a society to itself. They
are not granted by any external authority, nor are they derived from some overriding natural or
divine principles…’6

In sum, therefore, positivist theories of law ‘concentrate upon a description of law as it is in a

given time and place, by reference to formal or structural, rather than to moral or ethical, criteria
of identification.’7

Thomas Hobbes and the Rise of Positivism

In Thomas Hobbes (1588–1679) we have many of the basic characteristics of legal positivism.
According to Hobbes ideas, law is something postulated by man. It does not flow from God’s
creation. Therefore, the relationship between a legal enactment and morality is not direct. Does
an enactment or decision by judges need to be moral for it to be accepted as valid law? Hobbes
would appear to say no: it is a matter of sanctions, of the power to enforce the positively laid
down legal statement. Central to positivists’ ideas is the view that sanctions (punishments) for
disobedience are what make the law to be obeyed.

The Command Theories of Traditional/Classical Positivists

The positivist theories of law as a command of the sovereign were part of the traditional and
classical English positivism. Under Jeremy Bentham (1748-1832) and John Austin (1790-1859),

4
Ronald Dworkin, Taking Rights Seriously (Harvard University Press, Cambridge1978) xi.
5
Ronald Dworkin, Taking Rights Seriously (Harvard University Press, Cambridge1978) xii.
6
Arjun Sengupta, ‘On the Theory and Practice of the Right to Development’ in Arjun Sengupta, Archna Negi and
Moushumi Basu (eds), Reflections on the Right to Development (Sage Publications, New Delhi 2005) 61- 109, 64.
7
JE Penner, McCoubrey and White’s Textbook on Jurisprudence (4th edn Oxford University Press, Oxford 2008) 35.
2
human (positive) law was postulated as a command of the sovereign backed by sanctions in
order to ensure obedience. The concept of unfettered sovereign giving commands as forming the
law was secular and positivist, and postulated ideas that would not have been acceptable under
the earlier natural law – the theory of ‘unfettered legislative capacity.’8 Both Jeremy Bentham’s
and John Austin’s positive theories were premised on the idea of a sovereign issuing commands9
that are backed by sanctions.

According to Bentham, ‘[a] law may be defined as an assemblage of signs declarative of a

volition conceived or adopted by the sovereign in a state, concerning the conduct to be observed
in a certain case by a certain person or class of persons…’10 However, while Austin’s ‘sovereign
was postulated as an illimitable, indivisible entity’, Bentham develops the concept of ‘divided
and partial sovereignty.’11 In addition, Bentham acknowledges that some legal restrictions ‘may
be imposed upon sovereign power.’12 Further, sanctions have a lesser significant role in
Bentham’s command theory than in Austin’s.13

John Austin’s Positivism

As to what is the core nature of law, Austin's answer is that laws (‘properly so called’) are
commands of a sovereign. He clarifies the concept of positive law (that is, man-made law) by
analyzing the constituent concepts of his definition, and by distinguishing law from other
concepts that are similar:
 ‘Commands’ involve an expressed wish that something be done, combined with a
willingness and ability to impose ‘an evil’(sanction) if that wish is not complied with;
 Positive law consists of those commands laid down by a sovereign (or its agents), to be
contrasted to other law-givers, like God's general commands, and the general commands
of an employer to an employee;

8 MDA Freeman, Lloyd’s Introduction to Jurisprudence (8th edn Sweet and Maxwell, London 2008) 247.
9 MDA Freeman, Lloyd’s Introduction to Jurisprudence (8th edn Sweet and Maxwell, London 2008) 251.
10 J. Bentham, ‘Of Laws in General’ reprinted in MDA Freeman, Lloyd’s Introduction to Jurisprudence (8th edn
Sweet and Maxwell, London 2008) 273.
11 MDA Freeman, Lloyd’s Introduction to Jurisprudence (8th edn Sweet and Maxwell, London 2008) 251.
12 MDA Freeman, Lloyd’s Introduction to Jurisprudence (8th edn Sweet and Maxwell, London 2008) 251.
13 MDA Freeman, Lloyd’s Introduction to Jurisprudence (8th edn Sweet and Maxwell, London 2008) 252.

3
  The ‘sovereign’ is defined as a person who receives habitual obedience from the bulk of
the population, but who does not habitually obey any other (earthly) person or institution.
Austin thought that all independent political societies, by their nature, have a sovereign

In the criteria set out above, Austin succeeded in delimiting law and legal rules from religion,
morality, convention, and custom.

Within Austin's approach, whether something is or is not ‘law’ depends on which people have
done what: the question turns on an empirical investigation, and it is a matter mostly of power,
not of morality. Austin was of the view that there is much that is law that is not moral, and what
makes something law does nothing to guarantee its moral value. For instance, Austin observes
that the most pernicious (wicked) laws, and therefore those which are most opposed to the will of
God, have been and are continually enforced as laws by judicial tribunals.

Austin did not find difficulty in incorporating judicial lawmaking into his command theory: he
characterized that form of lawmaking, along with the occasional legal/judicial recognition of
customs by judges, as the ‘tacit commands’ of the sovereign. In such a case, Austin was of the
view that the sovereign was affirming the ‘orders’ by its acquiescence. It should be noted,
however, that one of Austin's later lectures listed the many problems that can come with judicial
legislation, and recommended, instead, the codification of the law in statutes.