What is positive law?

The Command Theory (Bentham,

Austin)
The Social Convention Theory
(Kelsen, Hart)

Jeremy Bentham
Principle of utility: Maximize
good
... the greatest happiness of the
whole community, ought to be the
end or object of pursuit. . . . The right
and proper end of government in
every political community, is the
greatest happiness of all the
individuals of which it is composed,
say, in other words, the greatest
happiness of the greatest number.

Benthams Definition
as 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,
who in the case in question are or are
supposed to be subject to his power: such
volition trusting for its accomplishment to
the expectation of certain events which it
is intended such declaration should upon
occasion be a means of bringing to pass,
and the prospect of which it is intended
should act as a motive upon those whose
conduct is in question.

Austins Definition
Legal Positivism: The existence of 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 a different enquiry.
A law, which actually exists, is a law,
though we happen to dislike it, or though
it vary from the text, by which we regulate
our approbation and disapprobation.

Bentham/Austin
Command Theory
X is the superior of Y if and only if Y
is in the habit of obeying X, and not
vice versa.

The Sovereign
A collection S of human beings
constitutes an independent political
society just in case there is one
member X (or some compact body X of
members) of S that is the superior of all
of the other members of S, and there is
no human being Y outside of S who is
the superior of X. In such a case, X is
called the sovereign of society S.

Commands
A command from X to Y is the
expression, in words or actions, of
the desire of X that Y act in a certain
way, backed up by a stated or
implied threat to impose some
penalty on Y if Y does not comply.

General Commands
A general command is a command
that is issued to an entire class of
individuals and that is intended to
stand for an indefinite period, until
revoked by its issuer.

Positive Law
A positive law is a general
command issued by the sovereign of
an independent political society to
some or all the members of that
society.

Some problems with the

command theory.
The theory applies clearly to an absolute
monarchy, but is much less clear when
applied to a society where some group is
the sovereign.
What exactly does it mean to obey a
group?
Can a group issue commands (in
Austin's sense) -- can a group share a
single desire?

More problems
H. L. A. Hart argues that the command
theory cannot distinguish between a
legitimate government and an armed
robber ("give me your money or else").
The "Gun Man" objection.
Parliamentary or constitutional law, laws
governing the actions of the sovereign, do
not count as law at all.

More problems
The command theory fails to capture the
normative aspect of law: Austin's theory
is not a theory of the Rule of Law: of
government subject to law. It is a theory
of the rule of men: of government using
law as an instrument of power. Such a
view may be considered realistic or
merely cynical.
Some laws do not seem to command:
e.g., those covering contracts and wills

Conventionalist Versions of
Legal Positivism
H. L. A. Hart
(Oxford)

Hans Kelsen
(Vienna, UCLA)

Law as a System of Rules

Laws constitute a hierarchical
system of rules.
Primary rules are like Austin's
commands,
Secondary rules concern how
primary rules are recognized as
valid, changed, applied to particular
cases, and enforced.

Legal Validity
A law is valid or binding if it belongs
to a system of laws that is in force in
a particular society.
The validity of a system depends on
the validity of its most fundamental
secondary rules:
Grundnorm (Kelsen)
Ultimate rules of recognition (Hart)

Validity of Grundnorms
It is generally followed, and
Most people accept it as
valid/binding, i.e.,
they follow it because they believe it is
valid, and
they criticize or find fault with those
who deviate.

The Internal Perspective

Legal theory involves taking the
"internal perspective" of one who
accepts a given system as valid.
This distinguishes law from
sociology, which always takes the
"external perspective" of the
objective scientist.

Some Philosophical
Problems
Reduces law to Sociology?
Is there a vicious circularity in
definition of validity?
What sort of thing is a rule? What is
it to follow or accept a rule?

Does Law Reduce to

Sociology?
The validity of a system of laws
seems, on their account, to be a
matter of sociological fact: which
system (which Grundnorms) to most
people treat as valid?
This threatens to collapse their
distinction between the disciplines of
law and sociology.

A Circular Definition?
Validity is defined in terms of what
most people believe to be valid.
If we don't already understand what
legal validity means, we can't
understand their definition.

A Circular Definition?
A law is valid if it is part of a valid
system of laws.
A system of laws is valid if it rests on
a valid Grundnorm.
A Grundnorm is valid if people
believe it to be valid.
The majority can never be wrong
about the validity of laws?

What are Rules

(Conventions)?
It can't be a mere pattern of behavior,
since that leaves no room for the
possibility of someone deviating from
the norm or breaking the rule.
It can't be a mere linguistic entity, like a
sentence or statement, since these must
be interpreted (by a linguistic or
semantic rule).

What are Rules

(Conventions)?
Legal positivism seems to have trouble
accounting for the normative force of law.
Why should habits of obedience or
sociological facts about belief bind
someone to act?
Alternatives: theories that make a place
for normative aspects of law.

Two Alternatives to Legal

Positivism
Legal Realism (Oliver
Wendell Holmes, Jr.,
Benjamin Cardozo, Jerome
Frank): law is
indeterminate, an
instrument to social good
Natural Law Theory
(Aristotle, Aquinas, Fuller):
law reflects a normative
reality to be discovered