This article is written by Anirudh Vats, 2nd year student at Rajiv Gandhi National University of Law, Patiala. This article will discuss the meaning and definitions of Legal Positivism, trace its development, lay out the various theses explaining it, debate its interface with Natural Law and provide a critical analysis.
Table of Contents
Legal Positivism is a jurisprudential approach to interpreting law in positive terms. It seeks to separate law from its ethical and modern concerns and focuses more on its structure and origin. Some of the main influential thinkers of this school were John Austin, Jeremy Bentham and Thomas Hobbes.
Meaning and Definition
Legal Positivism has these basic tenets:
- Law is a command by a human sovereign.
- Law is separate from morality and has no identifiable ethical concerns.
- Law should be studied positively i.e. “What is law?” and not normatively i.e. “What should law be?”
- Study of Legal concepts is separate from historical or sociological analysis.
- Legal system is self sufficient, to make decisions, it does not need to have social concerns.
- Precedence of facts over moral judgements.
Legal Positivism can be defined as an approach to understanding and interpreting law rooted in jurisprudence which seeks to separate law as a separate and independent field of study which is divorced from ethical, moral or social concerns.
Development and Influence
Empiricism is often seen as the antecedent to Legal Positivism. Empiricism is based on the notion that the validity of facts comes from sense experience. It denies the existence of any phenomena which cannot be verified with the five senses.
Empiricism regarded metaphysics as speculative and anything beyond sense experience as uncertain and inaccurate. Empiricism brought about a comprehensive methodology to understand the world in positive terms, and Legal Positivism was a result of this outlook.
Thomas Hobbes was the first to lay out concretely the positive philosophy of Law. HIs legal philosophy was based on the supremacy of Sovereign power. According to him, law, however arbitrary or unjust, is law if the Sovereign has commanded so.
He was one of the foremost modern thinkers to give the idea of a supreme sovereign whose authority is unquestionable and absolute, and who is the sole lawgiver in a given state.
Bentham was perhaps the most prominent British Legal Positivist who laid down the groundwork of Positivist legal philosophy with the Sovereign at its helm. He discusses two categories of people concerned with the legal system.
Expositors– These are people who read explain the law and do not pass any moral or ethical judgement on it.
Censors– These are people who do not separate law from morality and criticize law for on the basis of a sociological or historical interpretation of it
For Bentham, Censors were not subjects of ‘real law’ and remained outside the domain of law.
Law was not meant to be discussed, criticized or debated but rather explained and obeyed.
John Austin was another influential thinker of this school of thought and defined Law as the “Command of the Sovereign”. He wanted to establish law as a positive science at par with the natural sciences. He wanted to dissociate law from all subjective elements be it ethics, social responsibility or morality.
These thinkers helped develop an understanding of Legal Positivism and laid the groundwork for establishing Law as an objective science. They are widely cited, referred to, criticized, by contemporary thinkers, but everyone gives credit to these great thinkers who laid out Law as a serious science at par with other academic fields.
Thesis related to Legal Positivism
The pedigree thesis asserts that legal enforceability and legitimacy is due to certain social facts. This thesis was propounded by the Command theory of Austin. Austin says that the principal distinguishing feature of a legal system is the presence of a sovereign who is habitually obeyed by most people in the society, but not in the habit of obeying any determinate human superior.
For him, a command backed by sanction is all that law is limited to. Any external analysis of law is speculative and lies outside the domain of ‘Real Law’.
But this thesis is subject to a lot of criticism. Law does not always arise from a political superior. It has existed in society without the modern conception of the state and even when people have no sovereign over them. Customs and traditions were the tools people used for social control and cooperative, civilized living.
According to Austin, the primary function of state is to use force to impose sanctions. But modern democracies have governments that serve the people and are elected by them to ensure their safety and prosperity, not use force on them. The force used by the state is not the power of the state but the willingness of the people to obey the same.
Austin’s ideas are not applicable to International law because it has no Sovereign. International law is based on the principles of International recognition, cooperation, and diplomacy.
Modern democracies are found on a constitution, in which rests the source of all the political powers of the state. Therefore, the true Sovereign in a democracy are the people, whose rights the constitution upholds.
The second thesis containing the establishment of legal positivism is the separability thesis. This understanding suggests that any reference to moral virtue or ideals in characterizing the related ideas of law, legal legitimacy, and legal framework is conflicting with the separability thesis. In its most broad structure, the separability thesis attests that law and morality are theoretically separate. This unique definition can be interpreted in various ways. For instance, Klaus Faber (1996) deciphers it as making a meta-level case that the meaning of law must be totally free of ethical concerns.
This thesis also can be criticized along similar lines of the Pedigree thesis. Law cannot be separated from morality because law directly affects the development of a socio-political paradigm. People’s lives are directly affected by laws and they interact with the dictates of a sovereign superior on a regular basis.
History is full of examples of arbitrary legislation leading to widespread subjugation and oppression of people. When we consider a political sovereign as supreme, there are no checks and balances against him/her becoming tyrannical. Be it Nazi Germany or the Soviet Union, whenever power is concentrated and unquestionable, and law are not headed towards a moral direction, people are oppressed, tyrannized and even systematically murdered.
Ronald Dworkin explained this thesis in this way:
“The set of these valid legal rules is exhaustive of ‘the law’, so that if someone’s case is not clearly covered by such a rule then that case cannot be decided by ‘applying the law.’ It must be decided by some official, like a judge, ‘exercising his discretion,’ which means reaching beyond the law for some other sort of standard to guide him in manufacturing a fresh legal rule or supplementing an old one (Dworkin 1977, p. 17).”
This thesis asserts that in the practise of law, there will inevitably arise a situation in which an issue would lie outside the established principles of law and there would be no law to govern the said issue. In this case, the discretion thesis asserts that it is up to the judges, the jurists and the legislators to form a new rule to decide on said problem, which would involve leaving the domain of law and exercising their discretion of commanding law.
The discretion thesis is not a central tenet of Legal Positivism but is still considered in consonance with it.
Positivism and Legal Principles
Dorkin was the most prominent proponent of Legal Principles being a part of law. For him, rules were implemented in an all-or-nothing manner. They were to be applied without modification and questioning.
But judges, while deciding cases, cannot apply rules without seeking guidance from certain legal principles which are conventionally considered extralegal by positivists. For Dorkin, the actual cases were too ambiguous and full of detail which cannot be adequately captured in rules. To decide on a matter judiciously, one needs guidance from eternal principles which help the judges decide.
For him, these principles were not extralegal, and should be considered a part of law.
For example, in the case of Riggs v. Palmer, a murderer defended himself on the grounds that he had the will of the victim. The court found itself in search for a rule regarding such an assertion, but could not find any. The court relied on the principle that such a heinous crime should not go unpunished, regardless of the will of the victim.
Such a scenario, in Dorkin’s viewpoint shows the inadequacy of rules and why legal principles should be formalized and considered an integral part of the field of Law.
Dorkin’s viewpoint was met with much opposition from the positivists, who thought that law could not consist of anything apart from objective, definite rules and principles were primarily subjective and metaphysical in nature, which was contrary to their assertion that law is an absolute science.
According to Dworkin, a legal principle is to be considered: (1) the principle coheres with existing legal materials; and (2) the principle is the most morally attractive standard that satisfies (1). The correct legal principle is the one that makes the law the moral best it can be.
Thus, Dworkin concludes, “if we treat principles as law we must reject the positivists’ first tenet, that the law of a community is distinguished from other social standards by some test in the form of a master rule” (Dworkin 1977, p. 44).”
The validity of Legal Principles is considered one of the classic criticisms of Legal Positivism and was one of the first steps towards a broader, more socially relevant understanding of law, and a move away from the arbitrariness of the positivists.
Fuller’s internal morality of Law
In his seminal work, The Morality of Law, Lon L. Fuller asserts that law is subject to an internal morality consisting of eight principles:
- The rules must be expressed in general terms;
- The rules must be publicly promulgated;
- The rules must be (for the most part) prospective in effect;
- The rules must be expressed in understandable terms;
- The rules must be consistent with one another;
- The rules must not require conduct beyond the powers of the affected parties;
- The rules must not be changed so frequently that the subject cannot rely on them; and
- The rules must be administered in a manner consistent with their wording
- (Fuller 1964, p. 39).
In Fuller’s view, law consists of an internal morality which is essential for its functioning. He mentions 8 guiding principles of which if any law is ignorant, it should not be considered law. According to him, to achieve the purpose of law, which is to maintain social order and stability, law has to be held subject to a universal notion of morality, which is represented in his 8 principles.
This article attempted to lay out the basic tenets of the Legal Positivism movement, trace its developmental roots and influential thinkers and list the classic criticisms of the movement.
From this analysis, it is clear that the Positivist movement is no longer progressing, and its arguments have been largely refuted by contemporary philosophers, accelerated by the advent of modern democracy and constitutionalism.
But the legacy of the movement still lives on. Positivism laid out the basic notions which are still prevalent in modern legal systems. Even in modern democracies, we see the flow of law emanating from political superiors to the people, we also see the importance of statutes, rules and regulations along with the discretion of jurists.
The Separability thesis, however, is more or less proved to be wrong. Our struggles throughout history have proven that law needs to have an ethical direction for it to remain just, fair and not devolve into tyranny.
Ethical concerns are now central to any promulgation, rule or legislation. Laws everywhere are becoming less arbitrary, more inclined towards ensuring freedom and liberty.
The focus of legal institutions is shifting from being a system of commands and sanctions to a system which aims to ensure prosperity in the people it governs.
It can be concluded that Legal Positivism provides a unique perspective towards understanding our legal systems, and while it is not without its flaws, it still holds a lot of academic importance.