TABLE OF CONTENT

1.

Introduction..5

2.

Legal Positivism- Classical and Modern Era7

Classical Era positivism
*

Bentham.7
*
Austin.9
Modern Era Positivism
* Hart.
11
* Kelsen...
.11
*
Raz.13
3.

Place

of

Legal

Positivism

in

Contemporary

Constitutional

States....14
4.

Criticism

of

Positivism...17
5.
Conclusion.20

LEGAL POSITIVISM: LAWS AND LEGAL SYSTEM

1

Legal

Bibliography..2
2

INTRODUCTION
Legal positivism is a philosophy of law that emphasizes the conventional nature of lawthat it
is socially constructed. According to legal positivism, law is synonymous with positive norms,
that is, norms made by the legislator or considered as common law or case law. Formal criteria
of laws origin, law enforcement and legal effectiveness are all sufficient for social norms to be
considered law. Legal positivism does not base law on divine commandments, reason, or human
rights. As an historical matter, positivism arose in opposition to classical natural law theory,
according to which there are necessary moral constraints on the content of law. Legal positivism
does not imply an ethical justification for the content of the law, nor a decision for or against the
obedience to law. Positivists do not judge laws by questions of justice or humanity, but merely
by the ways in which the laws have been created. This includes the view that judges make new
law in deciding cases not falling clearly under a legal rule. Practicing, deciding or tolerating
certain practices of law can each be considered a way of creating law. Within legal doctrine,
legal positivism would be opposed to sociological jurisprudence and hermeneutics of law, which
study the concrete prevailing circumstances of statutory interpretation in society. The word
positivism was probably first used to draw attention to the idea that law is positive or
posited, as opposed to being natural in the sense of being derived from natural law or
morality.
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If there is one doctrine that is distinctively associated with legal positivism, it is the separation
of law and morality. The principal aim of jurisprudential positivists has been to establish that the
essential properties of law do not include moral bearings. As opposed to classical natural law
thinkers and in response to recent theorists such as Lon Fuller and Ronald Dworkin, positivists
strived to dissolve any number of apparently necessary connections between the law and
morality. In H.L.A Hart's seminal 1958 article on the Positivism and the Separation of Law and
Morals', he insisted that positivism is a theory of the nature of law, not a theory of how lawyers
should reason, judges should decide or citizens should act. Hart took Jeremy Bentham and John
Austin as his main predecessors; he defended the insistence on the lack of necessary connection

LEGAL POSITIVISM: LAWS AND LEGAL SYSTEM

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between law and morality. Legal positivism indeed involves nothing more than the contention
that there is no necessary connection between law and morality.' Hart therefore resolves to a
single core positivist legal thought that it is no sense a necessary truth that laws reproduce or
satisfy certain demands of morality, though in fact they have often done so.' Many other
philosophers, encouraged by Hart, treat the theory as the denial of a necessary connection
between law and morality. Jules Coleman does not hesitate at all in ascribing this legal
positivism thesis. This is perhaps the prevailing view of legal positivists. During the past
decades, this prevailing view has come into questions, it is held to be superficial and wrong. It
has been criticised as hiding the true nature of law and its roots in social life, others thought it
intellectually misleading and corrupting in practice. John Gardner, Hart's first positivist
successor in the Oxford Chair of Jurisprudence, has asserts that the separation thesis is the
propagation of a myth. He contends it to be absurd and no legal philosopher of note has even
endorsed it.' Even some remarkable positivists, like Joseph Raz and his disciples have
questioned the importance and the very plausibility of an insistence on the separation of law and
morality. Other positivists are also in doubts of such an insistence as a key component of
positivist outlook. These uncertainties put the thesis in a very vulnerable situation. The idea of a
necessary connection between law and morality is nonetheless open to interpretation, and not all
necessary' connections are inconsistent with the principles expounded by leading positivists.
Therefore, the separation of law and morality will be considered in a multiplicity of thesis, the
discussion will maintain that the criticisms that have marshalled on the separation thesis fail in
casting doubts on its significance and sustainability. Therefore, there is no necessary connection
between law and morality.

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LEGAL POSITIVISM- CLASSICAL AND MODERN ERA

CLASICAL ERA-:
Bentham and Austin represent the classical school of English legal positivism, often disparaged
by modern theorists as quaint or simply misguided. But they cannot sensibly be understood
without an appreciation of historical context in which they wrote and the objectives they sought
to achieve. For them law is an expression of political facts. 1
JEREMY BENTHAM( 1748-1832)
J. Bentham was a prolific author. His prodigious manuscripts lay unknown, gathering dust in the
University of London for more then a century after his death in 1832. Bentham devoted himself
to exposing what he saw as the shibboleths of his age and constructing a comprehensive theory
of, inter alia, law, logic, politics and psychology, founded on the principal of utility.
The common law was, in the eighteenth century, considered to be the expression of immemorial
custom and long standing practice which embodied natural reason. The law was thus
legitimated by its historical antecedents as well as its inherent rationality. Bentham regarded
such ideas as dangerous fallacies: appeals to the law of Nature were nothing more then private
opinion in disguise or the mere opinion of men self-constituted into legislatures. Behind the
mask of legal fictions and the pretence of immemorial custom, lay an incomprehensible web of
unjust laws perpetuated in the name of precedent which Bentham ridiculed as dog law:
whenever your dog does anything you want to break him of, you will wait till he does it, and
then beat him for it. This is the way you make law for your dog: and this is the way judges make
law for you and me.2

1 Wacks Raymond, Understanding Jurisprudence-An introduction to legal theory, second

edition, oxford Publication, 2009pg 73

2 Quoted in Postema, 277 as referred in Wacks Raymond, Understanding Jurisprudence-An

introduction to legal theory, second edition, oxford Publication, 2009pg 73

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The indeterminacy of the common law is endemic. Unwritten law is, in Benthams view,
intrinsically vague and uncertain. It cannot provide a reliable, public standard which can
reasonably be expected to guide behavior. Benthams positive conception of law, in other words,
is a profoundly purposive or functional one informed ofcourse by the principal of utility. The
common law falls short for this conception not only because it fails to express the rules with
clarity, but because its very validity is suspect. So laws indeterminacy infects its legitimacy; to
accept the authority of rules themselves is often to accept the larger authority of law itself. And
this conflation results in a reluctance to question and criticize a law in general to bind the
obedience.
The notion of liberty present in Bentham's account is what is now generally referred to as
"negative" libertyfreedom from external restraint or compulsion. Bentham says that "liberty is
the absence of restraint" and so, to the extent that one is not hindered by others, one has liberty
and is "free." Bentham denies that liberty is "natural" (in the sense of existing "prior to" social
life and thereby imposing limits on the state) or that there is an a priori sphere of liberty in
which the individual is sovereign. In fact, Bentham holds that people have always lived in
society, and so there can be no state of nature (though he does distinguish between political
society and "natural society") and no "social contract" (a notion which he held was not only
unhistorical but pernicious). Nevertheless, he does note that there is an important distinction
between one's public and private life that has morally significant consequences, and he holds
that liberty is a goodthat, even though it is not something that is a fundamental value, it
reflects the greatest happiness principle.3
Correlative with this account of liberty, Bentham viewed law as "negative." Given that pleasure
and pain are fundamental toindeed, providethe standard of value for Bentham, liberty is a
good (because it is "pleasant") and the restriction of liberty is an evil (because it is "painful").
Law, which is by its very nature a restriction of liberty and painful to those whose freedom is
restricted, is a prima facie evil. It is only so far as control by the state is limited that the
individual is free. Law is, Bentham recognized, necessary to social order and good laws are
3 Wacks Raymond, Understanding Jurisprudence-An introduction to legal theory, second
edition, oxford Publication, 2009pg 75

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clearly essential to good government. Indeed, perhaps more than Locke, Bentham saw the
positive role to be played by law and government, particularly in achieving community wellbeing. To the extent that law advances and protects one's economic and personal goods and that
what government exists is self-government, law reflects the interests of the individual.
Unlike many earlier thinkers, Bentham held that law is not rooted in a "natural law" but is
simply a command expressing the will of the sovereign. (This account of law, later developed
by Austin, is characteristic of legal positivism.) Thus, a law that commands morally
questionable or morally evil actions, or that is not based on consent, is still law.
JOHN AUSTIN (1790-1859)
Austin was the disciple of Bentham. His major work Province Of Jurisprudence Determined,
was published in 1832 the year of Benthams death. Austin's basic approach was to ascertain
what can be said generally, but still with interest, about all laws. Austin's analysis can be seen as
either a paradigm of, or a caricature of, analytical philosophy, in that his discussions are dryly
full of distinctions, but are thin in argument. The modern reader is forced to fill in much of the
meta-theoretical, justificatory work, as it cannot be found in the text. Where Austin does
articulate his methodology and objective, it is a fairly traditional one: he endeavored to resolve
a law (taken with the largest signification which can be given to that term properly) into the
necessary and essential elements of which it is composed 4 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 if that wish is not complied with.
Rules are general commands (applying generally to a class), as contrasted with specific

or individual commands (drink wine today or John Major must drink wine).
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.

4 Austin John, Province Of Jurisprudence defined, 1832: Lecture V, p. 117

LEGAL POSITIVISM: LAWS AND LEGAL SYSTEM
7

The sovereign is defined as a person (or determinate body of persons) 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.

Positive law should also be contrasted with laws by a close analogy (which includes
positive morality, laws of honor, international law, customary law, and constitutional
law) and laws by remote analogy (e.g., the laws of physics). 5

Austin also wanted to include within the province of jurisprudence certain exceptions, items
which did not fit his criteria but which should nonetheless be studied with other laws properly
so called: repealing laws, declarative laws, and imperfect lawslaws prescribing action but
without sanctions.6
In the criteria set out above, Austin succeeded in delimiting law and legal rules from religion,
morality, convention, and custom. However, also excluded from the province of jurisprudence
were customary law (except to the extent that the sovereign had, directly or indirectly, adopted
such customs as law), public international law, and parts of constitutional law.
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. Of course, Austin is not arguing that law should not be moral, nor is he
implying that it rarely is. Austin is not playing the nihilist or the skeptic. He is merely pointing
out that there is much that is law that is not moral, and what makes something law does nothing
to guarantee its moral value. The most pernicious laws, and therefore those which are most
opposed to the will of God, have been and are continually enforced as laws by judicial
tribunals.7

5 Austin John , Province Of Jurisprudence defined, 1832: Lecture I

6 Austin John, Province Of Jurisprudence defined, 1832: Lecture I, p. 36
7 Austin John, Province Of Jurisprudence defined, 1832: Lecture V, p. 158
LEGAL POSITIVISM: LAWS AND LEGAL SYSTEM
8

In contrast to his mentor Bentham, Austin, in his early lectures, accepted judicial lawmaking as
highly beneficial and even absolutely necessary 8 Nor did Austin find any difficulty
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, the sovereign's affirming the orders by its acquiescence. 9
It should be noted, however, that one of Austin's later lectures listed the many problems that can
come with judicial legislation, and recommended codification of the law instead.10
MODERN ERA-:
HANS KELSENS CONCEPT

Kelsen's is considered a very strict and scientifically understood type of legal positivism. It is
based on the idea of a Grundnorm, a hypothetical norm on which all subsequent levels of a legal
system such as constitutional law and "simple" law are based. For Kelsen, "sovereignty" was a
loaded concept: "We can derive from the concept of sovereignty nothing else other than what
we have purposely put into its definition." His theory has disciples among scholars of public law
worldwide. His disciples developed "schools" of thought to extend his theories, such as the
Vienna School in Austria and the Brno School in Czechoslovakia. In English-speaking
countries, H. L. A. Hart and Joseph Raz are perhaps the most well-known authors who were
influenced by Kelsen, though both differed from Kelsen's theories in several respects.
HLA HARTS CONCEPT
Hart's theory is developed from the theories propounded by Bentham and Austin. Standing at
the heart of Hart's theory is his assertion that the most prominent general feature of law at all
times and places is that its existence means that certain kinds of human conduct are no longer
optional but in some sense, obligatory. According to Hart, his theory aims to provide an
8 Austin John, Province Of Jurisprudence defined, 1832: Lecture V, p. 163
9 Austin John, Province Of Jurisprudence defined, 1832: Lecture V, p. 163
10 Austin John, Province Of Jurisprudence defined, 1879: vol. 2, Lecture XXXIX,
pp. 669704
LEGAL POSITIVISM: LAWS AND LEGAL SYSTEM
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improved analysis of the distinctive structure of a municipal legal system and a better
understanding of the resemblances and differences between law, coercion, and morality, as types
of social phenomena. By employing the word improved', it is evident that Hart is building on
the positivists' theses before him. However, some commentators such as McCoubrey argue that
Hart's theory should be seen as a distinct account of jurisprudential character of positive law.
As such, Hart's positivism has also been referred to as modified positivism'.
Albeit Hart's modified positivism' can be distinguished from the classical positivism in certain
ways, Hart agrees with earlier legal positivists, specifically with the nineteenth century jurist
John Austin, on two points. First, Hart agrees to begin his analysis of the theory of law by
appreciation of the fact that where there is law, there human conduct is made in some sense
non-optional or obligatory. Second, Hart stood by Bentham, refusing to admit a connection
between law and morality. In Hart's words, though there are many different contingent
connections between law and morality there are no necessary conceptual connections between
the content of law and morality. In his support for Bentham's separation of laws and morals, he
proposed the Separability Thesis', which remains a central fort of his theory. The Separability
Thesis' referred to the separation of law and morality. Kenneth Himma stated that this abstract
formulation can be interpreted in a number of ways. On one hand, extreme positivists like
Faber argue that the definition of law should be completely free from morality, rejecting any
moral consideration related to the concept of law, legal validity and legal system. On the other
hand, soft positivists like Hart believe that whilst law does not necessary reproduce or satisfy
demands of morality, in fact they have often done so. As Hart describes, although a legal
system must exhibit some specific conformity with morality or justice, or must rest on a widely
diffused conviction that there is a moral obligation to obey it..., [it does not follow that] the
criteria of legal validity of particular laws used in a legal system must include, tacitly if not
explicitly, a reference to morality or justice. Unlike previous classical positivists, however,
Hart emphasised on social phenomena'. In his influential The Concept of Law, his theory was
equipped with the social element which his predecessors ignored. He stated that there are
certain rules of conduct which any social organization must contain if it is to be viable. He
continued, such universally recognised principles of conduct which have a basis in elementary
truths concerning human beings, their natural environment, and aims, may be considered the
minimum content of Natural law. He points out that without this minimum content of natural
LEGAL POSITIVISM: LAWS AND LEGAL SYSTEM
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law', laws and morals could not forward the minimum purpose of survival which men have in
associating with each other. Thus, men, as they are, would have no reason for obeying
voluntarily any rules. However, as Wacks stated, Hart is not saying that law is derived from
morals or that there is a necessary conceptual relationship between the two. This is evident
from Hart's own analysis that sometimes the claim that there is a necessary connection between
law and morality comes to no more than the assertion that a good legal system must conform at
certain points..., to the requirements of justice and morality.
Another proposition put forward by Hart is that law, as he sees it, is a system of rules. This
includes obligation rules which impose duties or obligations. Obligation rules, as Wacks
observed, can be separated into moral rules and legal rules. As mentioned in the preceding
section, when Hart attempted to refine the classical positivism theory, he distinguishes legal
rules between primary rules and secondary rules. According to Hart, many primary rules are
also social rules. As presented in the last paragraph, many people are adhering to the law for the
function and success of the society. Thus, it is arguable that these social rules carry a moral duty
to observe the law. Nonetheless, Hart is opposed to the idea that such moral obligations have
made them laws. Rather, these primary rules must be combined with the secondary rules, which
specify the ways in which the primary rules may be conclusively ascertained, introduced,
eliminated, varied, and the fact of their violation conclusively determined, to be social rules
laws properly so called. From this, it is evident that Hart do rely on social rules in the
formulation of his theory.
JOSEPH RAZS CONCEPT
A pupil of H. L. A. Hart, Raz has been important in continuing Hart's arguments of legal
positivism since Hart's death. This included editing a second edition of Hart's 'The Concept of
Law', with an additional section including Hart's responses to other philosophers' criticisms of
his work.
Raz has also argued, contrary to Hart,15 that the validity of a law can never depend on its
morality.

LEGAL POSITIVISM: LAWS AND LEGAL SYSTEM

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Place of Legal Positivism in Contemporary Legal States

The positivistic approach (whatever this may mean) is often considered too narrow and
sterile in face of the complex normative structure of contemporary legal systems. Among the
different distinctive features which characterise many contemporary legal systems, attention
is drawn to the existence of a rigid constitution on the top of the hierarchy of legal sources:
the new light shed by a rigid constitution on the structure of the state makes it possible to
talk of a brand new model of the state: namely, the constitutional state.11
According to many new "antipositivist" scholars, then, constitutional law is the main test in
order to show how incapable legal positivism is of producing a suitable understanding of the
structure and the essence of contemporary legal systems. In consequence, anti-positivistsm
aintain the need for a new approach to the classical problems of legal theory, such as the
relations between law and morals, the theory of interpretation, the tasks of legal theory, the
protection of rights, and the theory of sovereignty. The positivist/ antipositivistd ebate,
anyway,i s quite confused. The tradition of legal positivism is very wide and flexible, and
many times antipositivists seem to choose as their targets quite obsolete accounts of legal
positivism, or even some theses currently (mis)represented as positivistic ones even if they
are not actually maintained by any contemporaryp ositivist scholar. Anti-positivism, in turn,
tends now to mingle with (generically) constitutionalist trends (we can refer for instance to
11 The Contemporary Relevance of Legal Positivism, BRIAN Z TAMANAHA,
http://www.jstor.org/ via http://www.jstor.org/stable/10.2307/3505143?
Search=yes&resultItemClick=true&searchText=legal&searchText=positivism&searc
hUri=%2Faction%2FdoBasicSearch%3FQuery%3Dlegal%2Bpositivism%26amp
%3Bacc%3Don%26amp%3Bwc%3Don%26amp%3Bfc%3Dof
LEGAL POSITIVISM: LAWS AND LEGAL SYSTEM
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such scholars as Alexy, Dworkin, and Habermas, among others), as long as they place the
inquiries into the constitutional state and contemporary constitutional aw within the
framework of a more general refutation of legal positivism.12
The principle of epistemological neutrality is criticised not only on the grounds of the above
mentioned thesis of the necessary connection, but also because of the overwhelming
importance moral principles have within the framework of the supreme legal source in
Contemporary legal systems, i.e. the rigid constitution.
This model of legal system, which is commonly referred to as the "constitutionasl tate",i s
characterized by several important features, among which are: the introduction of a rigid
constitution, which is supposed to be coherent in its normative content; the supremacy of the
constitution over sub-constitutional norms, statutes in the first place, which makes the
constitution a rigid one; and the judicial review of legislation, which guarantees the
supremacy of the constitution.13 The introduction of rigid constitutions in contemporary
legal systems is one of the most interesting points in twentieth century legal history, and it
has been compared to a "paradigm change" in the legal culture. Indeed, contemporary
constitutions embody both procedural rules concerning norm-productiona, nd substantivep
rinciples that are to be pursued (or at least not infringed) by the norms that are produced.
These substantive standards are intended to constrain the content of legal norms, also
providing a legal restraint against legislation, i.e. the branch of state activity which was
formerly conceived as supreme and (legally) unrestricted.I n a constitutionals tate, then,
legislation itself is sub lege, which no longer renders acceptable the "dogma" of the
omnipotent legislator. The constitutional state is framed by different normative levels,
hierarchically related. Nothing new so far: every legal order has a certain hierarchical
12 J. Finnis, NaturalL aw and Natural Rights (Oxford: Clarendon, 1980)
13 THE PLACE OF LEGAL POSITIVISM IN CONTEMPORARY CONSTITUTIONAL STATES,
GIORGIO PINO, http://home.heinonline.org/ via
http://www.jstor.org/stable/10.2307/3505143?
Search=yes&resultItemClick=true&searchText=legal&searchText=positivism&searc
hUri=%2Faction%2FdoBasicSearch%3FQuery%3Dlegal%2Bpositivism%26amp
%3Bacc%3Don%26amp%3Bwc%3Don%26amp%3Bfc%3Dof
LEGAL POSITIVISM: LAWS AND LEGAL SYSTEM
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structure. What is indeed new is that, in Kelsen's terminology, the constitutional state is not
only a dynamic but also a static normative system.30 While the legislative state has an
essentially dynamic framework (at legislative level at least), the constitutional state shares at
the same time both a static and a dynamic dimension because the constitution establishes not
only the procedureso f normativep roduction,b ut also its substantial imits. To use a different
concept elaborated by twentieth century positivist theory, we could say that a constitutional
state is a legal system whose rule of recognition includes both formal and substantive
criteria to identify the valid rules of the system. The constitutional standards of substantive
validity are mainly identifiable with the protection of fundamental rights, such as the
principle of equality, the immanent dignity of the human being, various civil and political
rights, as well as "welfare rights" such as the right to health, to education, to social
assistance and so on. In short, we can say that, as far as fundamental constitutional rights are
concerned,i n some cases the state is under a "negative" obligation, because legislation must
refrain from obstructing the exercise of certain fundamental freedoms; in some other cases,
instead, the state has to promote all the structural conditions that enable the citizens to use
those rights.

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CRITICAL ANALYSIS OF LEGAL POSITIVISM

Legal positivism today is classified as sloppy', confused' and misrepresented', yet position
among positivists largely differ which put it as its most vulnerable. Gardner, a staunch and
perceptive defender of Joseph Raz observes that legal positivists have often taken great pains to
assert some of the connections between law and morality,' and he declares that there are many
other necessary connections between law and morality, namely that each of consists of valid
norms.
Gardner rebukes Hart for formulating the no necessary connection' in a heavy-handed manner,
Hart only seemed to endorse it' by hint and emphasis.' Gardner maintains that Hart's apparent'
endorsement must be read as a bungled preliminary attempt to formulate and defend a much
narrower version of legal positivism, which, like Bentham and Austin, he really did endorse.' He
contended that the legal validity of a given norm and the formation of it as part of the law of
that system are depending on its sources, not its merits. This thought however, does not entail
that validity is morally unmeritorious. Gardner then claims Bentham and Hart had regarded
valid laws as necessarily endowed with some moral value just in virtue of being valid laws'.
While Gardner is correct about Bentham and Austin, he seems to be wrong about Hart. Gardner
assumes that Hart rejected the separation thesis in his 1958 manifesto by claiming that every
LEGAL POSITIVISM: LAWS AND LEGAL SYSTEM
15

law necessarily shows a redeeming moral merit, a dash of justice that comes of the mere fact
that a law is a general norm that would have like case treated alike'. However, Hart was just
stating the legal requirement of treat like cases alike' as one essential element of justice, he was
aware that this is justice in the administration of the law, not justice of the law'. Therefore,
while the treat like cases alike' requirement is a necessary element of justice and that it is not
sufficient; it proves that there is no necessary connection between law and morality.
Indeed in The Concept of Law, Hart highlighted the moral benefits in favouring the separation
thesis, the benefits of seeing that law has no inherent or intrinsic moral value because neither
law takes a stance on any particular moral or political issues, nor is it committed to any moral or
political evaluations. For Hart, this is certainly an important set of reasons to adopt the positivist
concept of law. Accordingly, Hart concluded that whether one is confronted by a morally bad
law is to let individual conscience decide, unhampered by any thought that there is a necessary
connection between law and morality.
Hart, with Bentham's thought that certain laws might be too evil to be obeyed, sought to enlist
Bentham in exactly this version of the separation thesis. Gardner is nevertheless right that
Bentham should not be so enlisted. Hart called Bentham's general recipe for life under the
government of laws' to obey punctually; to censure freely', suggest a general duty to obey the
law. Bentham certainly argued for a connection between legal order and political morality, a
different connection between law and morality from any that Hart envisaged. The real
importance of Hart following Bentham's recipe' is that one has a general moral obligation to
obey the law even he disapproves it, he is nonetheless obliged to criticise the law freely and the
institution that produce it, so that the law can be effective reformed. Bentham stressed on the
general moral duty to obey the law even there is no freedom, and this duty is to become stronger
in a democratic government with freedom, as he opined, obey punctually but criticise freely, it
is the motto of the good citizen'.
We should therefore recognise Hart's no necessary connections' was intended in the same spirit
as his repeated invocation of the phrase Separation of Law and Morals' a shorthand for an
array of theses with which he denied the important necessary connections between law and
morality. Hart went beyond the affirmation of the two Utilitarian's distinction between the laws
LEGAL POSITIVISM: LAWS AND LEGAL SYSTEM
16

as it is and the law is it to be and contested many supposedly necessary connections between
law and morality.
Hart disapproves of the concept of law which was formulated by John Austin in The Province of
Jurisprudence Determined (1832). Hart commences explaining his concept of law by first taking
Austins command theory to task. According to Austin, all laws are commands of a legally
unlimited sovereign, and he asserts that, all laws are coercive orders that impose duties or
obligations on individuals. Hart, on the other hand, says that laws may be at variance from the
commands of a sovereign in as much as they may apply to those individuals who enact them
and not merely to other individuals. Secondly, laws may also be different from coercive orders
in as much as they may not necessarily impose duties or obligations but may instead confer
powers or privileges without imposing duties or obligations on individuals. Thirdly, the
continuance of pre-existing laws cannot be explained on the basis of command; as pointed out,
he was able to demolish completely the tacit command myth . Fourthly, Austins habit of
obedience fails to elucidate succession to sovereignty because it fails to take account of
improvement difference between habit and rule. Habits only require common behaviour,
which is not sufficient for a rule. A rule has an internal aspect, i.e. people use it as a standard
by which to judge and condemn deviations; habits do not function in this manner. Succession to
sovereignty occurs by virtue of the acceptance of a rule entitling the successor to succeed, not
on account of a habit of obedience. Fifthly, Hart also uses rule to differentiate between being
obliged and having an obligation. Austins command-duty-sanction thesis fails to explain
why, if a gunman threatens X with Your money or your life, X may be obliged to hand over
his purse, but has no obligation to do so . The reason is that people have an obligation only by
virtue of a rule.14

14 Hart, H.L.A,The Concept of Law, Oxford: Clarendon Press, 1961

LEGAL POSITIVISM: LAWS AND LEGAL SYSTEM
17

CONCLUSION
Labelling cultural traditions is always a difficult task. It is even more so in the case of a
comprehensive theoretical approach such as that of legal positivism - to which many different
doctrines are assumed to belong. Considering how broad the definition of "legal positivism" has
become, given the large varieties of historical and cultural contexts in which it has flourished, it
is possible to say that legal positivism is an "essentially contested concept". It is a notion that is
likely to be interpreted in quite different ways, even if it has a conceptual core which is
commonly agreed upon.15
If we look at ordinary usage the first approach to the notion of legal positivism seems to refer to
what legal positivism is not: legal positivism is often defined as a doctrine that is in radical - and
polemical - contradiction to natural law theories. Legal positivism, as opposed to natural law
theories, assumes that "there is no other law but positive law": the existence or - more
technically the validity of law rests upon the mere fact of its being enacted by a historically
determined human legislator (or norm-issuer in a broad sense). This simple definition embodies
two important points for this preliminary discussion
15 W. B. Gallie, "Essentially Contested Concepts", Proceedings of theAristotelian Society LVI
(1955-1956), pp. 167-198.

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Positivism serves two values. First, by requiring that all law be written, positivism ensures that
the government will explicitly apprise the members of society of their rights and obligations. In
a legal system run in strict accordance with positivist tenets, litigants would never be unfairly
surprised or burdened by the government imposition of an unwritten legal obligation that was
previously unknown and nonexistent. The due process Clauses of the Fifth and Fourteenth
Amendments incorporate this positivist value by mandating that all persons receive notice of
any pending legal actions against them so that they can prepare an adequate defense.
Second, positivism curbs judicial discretion. In some cases judges are not satisfied with the
outcome of a case that would be dictated by a narrow reading of existing laws. For example,
some judges may not want to allow a landlord to evict an elderly and sick woman in the middle
of winter, even if the law authorizes such action when rent is overdue. However, positivism
requires judges to decide cases in accordance with the law. Positivists believe that the integrity
of the law is maintained through a neutral and objective judiciary that is not guided by
subjective notions of Equity.
Positivism has been criticized for its harshness. Some critics of positivism have argued that not
every law enacted by a legislature should be accepted as legitimate and binding. For example,
laws depriving African Americans and Native Americans of various rights have been passed by
governments but later overturned as unjust or unconstitutional. Critics conclude that written law
ceases to be legitimate when it offends principles of fairness, justice, and morality. The
American colonists based their revolt against the tyranny of British law on this point.
Positivism still influences U.S. jurisprudence. Many judges continue to evaluate the viability of
legal claims by narrowly interpreting the law. If a right asserted by a litigant is not expressly
recognized by a statute, precedent, or constitutional provision, many judges will deny recovery.

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BIBLIOGRAPHY
Books Referred-:
Wacks Raymond, Understanding Jurisprudence-An introduction to legal theory,

second edition, oxford Publication, 2009

Mc Coubrey & Whites, Textbook On Jurisprudence,6th edition
Austin John, Province Of Jurisprudence defined, 1832
Hart, H.L.A,The Concept of Law, Oxford: Clarendon Press, 1961
Kelsen Hens, Pure Theory Of Law, trans. Max Knight (Berkeley and Los

Angeles: University of California Press,1967)

J. Raz, The Authority of Law,

Websites Referred-:
http://www.jstor.org/
http://plato.stanford.edu/

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