JURISPRUDENCE-LAW 2510

CLASSICAL LEGAL POSITIVISM

LECTURER: SHERIZA KHAN-HEINZ
E-MAIL: [email protected]
LEARNING OUTCOMES

• Critically discuss the emergence of legal positivism and the core

meaning of legal positivism
• Critically discuss Austin’s theory of law that law is the command of the
sovereign
• Analyze Bentham’s concept of positive law
• Describe the criticisms of Bentham and Austin
CORE MEANING OF LEGAL POSITIVISM

• 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 institutes including
administrative, executive, legislative, and judicial bodies.
THE EMERGENCE OF POSITIVISM

• The Nation States wanted to assert their independence from feudal

notions and papal interference.
• Sovereignty meant that each national territory was:
• A self-sufficient unit
• An independent legal entity
• A supreme power with unlimited capacity to make new law
• Unfettered legislative capacity, not limited to custom and natural
law
EMERGENCE OF POSITIVISM CONTINUED

• Industrial Revolution and the rise of the 19 th Century Capitalism meant that:
• The law needed to change rapidly to meet the needs of the industrial revolution and natural
law could not meet these demands or change with such rapidity.
• Thus, if morality is removed from the law, law can be changed more quickly to achieve the
interest of the industrialists.

• Rise of Empiricism
• Law must be empirically based
• Empiricism has its roots from David Hume who opined that nation states should base law
only on empirically verifiable data and therefore true empiricism really involved the rejection
of natural law as a system of norms because the validity of normative rules cannot logically
be treated as an objective fact.
POSITIVISM’S CENTRAL CLAIM

• Genuine knowledge is scientific knowledge that emerges

from the scientific method
• Positivists thought about and answered this question: if
mankind is thrown upon a sea of conflicting moralities with
no compass by which he can legitimately choose or reject
certain morals, and natural law is dethroned, what replaces
it? Answer: Science, rationality and empirical evidence
JEREMY BENTHAM (1748-1832)

• Bentham described natural rights as “nonsense upon stilts”

• He opposed natural rights as he saw them as being entrenched and unalterable, and
further as a block in the path of change in the law and therefore a block to reform to the
law.
• He believed that the only genuine knowledge is scientific knowledge which emerges only
from the positive confirmation of theory by the application of rigid scientific methods.
• He viewed knowledge as resting on logical inferences from simple protocols grounded in
empirical, observable facts.
• He said positivism emphasizes verifiable and finite means to determine conclusively the
truth or falsity of a proposition.
JEREMY BENTHAM CONTINUED

• Founder of classical utilitarianism.

• Bentham describes what he calls “the principle of utility” inspired inter
alia by the writings of Hume.
• The principle in essence states that any action is right insofar as it
increases happiness, and wrong insofar as it increases pain.
• For Bentham, happiness simply meant pleasure and the absence of
pain and could be quantified according to its intensity and duration. In
other words, they can be measured.
JEREMY BENTHAM CONTINUED
HOW IS THIS HAPPINESS MEASURED?
• Bentham desired to ensure happiness of the community by
attaining four major goals namely
1. Subsistence;
2. Abundance;
3. Equality; and
4. Security for the citizens.
JEREMY BENTHAM CONTINUED

• The application of the principle of utility to law and government guided

Bentham’s views on legal rights.
• During his lifetime, he attempted to create a “utilitarian pannomion”—a
complete body of law based on the utility principle.
• Therefore, he was of the view that government ought to create laws, which
would ensure the happiness of the people and decrease their pain.
• As a result, the purpose of legislation must be to achieve these goals,
namely to ensure subsistence, abundance, favor equality, and maintain
security
JEREMY BENTHAM CONTINUED

• Bentham also applied the principle of utility to the reform of political

institutions.
• He believed that with greater education, people can more accurately
discern their long-term interests.
• Bentham advocated for greater freedom of speech, transparency and
publicity of officials as accountability mechanisms- This he believed will
create happiness in the people.
• A committed atheist, he argued in favor of the separation of church and
state.
BENTHAM’S SEARCH FOR DETERMINACY

• Bentham criticized the common law which claimed to be the expression

of immemorial custom and longstanding practice embodied in reason
but which he found full of dangerous fallacies.
• The biggest fallacy was the appeal to the Law of Nature which was
nothing more than private opinion in disguise or the mere opinion of the
legislature.
• He stated: “the only determinate, concrete content that can be given to
natural law or reason is entirely private and subjective because of the
abstractness of these notions.
BENTHAM’S SEARCH FOR DETERMINACY AND
HIS CRITICISM OF JUDGE & CO
• They offer no public shared standards for assessment of rules, laws,
actions, or decisions. This has two disastrous consequences for law and
adjudication:
• 1. the justification of judicial decisions is removed entirely from the public arena
[because when appealing] to natural law or reason they rest entirely on private
sentiment or whim
• This opens the door wide to corruption and manipulation by sinister interests

• He referred to the common law’s use of precedent as a pretense and called

it “Dog Law”
• “whenever your dog does anything you want to break him of, you wait until he
does it, and then beat him for it. This is the way you make laws for your dog;
and this is the way the judge makes law for you and me.”
BENTHAM’S SEARCH FOR DETERMINACY AND
HIS CRITICISM OF JUDGE & CO
• Bentham thus viewed common law as intrinsically vague and uncertain
and an unreliable guide for behaviour.
• For Bentham, the common law’s indeterminacy infects its legitimacy
• Judges role in this disorder is particularly pernicious
• Judge & Co. (Judges and Lawyers) conspire to preserve the common law’s
delay, expense, and injustice.
• Judges and Lawyers create ‘artificial rules’ producing a ‘factitious’ system
full of procedural obfuscation at the expense of their clients and the public.
BENTHAM’S SEARCH FOR DETERMINACY AND
HIS CRITICISM OF JUDGE & CO
• He stated that the judiciary was insufficiently accountable to the people
• He stated that the solution was to make the whole process of judging more
open, accessible and public. He said “publicity is the very soul of justice.” It
ensures that judges are morally and legally accountable. The benefits of the
public hearing he stated are that it produces truth (wider circle of
dissemination of a witness’ testimony, the greater the likelihood that a
falsehood would be ferreted out), education (while not legally obliged to
deliver opinions, Bentham thought judges would want their audience to
understand the reasons behind their actions) and discipline (‘the more strictly
we are watched the better we behave’).
BENTHAM’S SEARCH FOR DETERMINACY AND
HIS CRITICISM OF JUDGE & CO
• Bentham stated that the judiciary’s method of resolving disputes is
unduly complex
• He said that language that is comprehensible to the ordinary person
can be used.
• He said courts should be placed on a ‘budget’ to produce one-day trials
and immediate decisions- is this practical?
• Publicity would be the ‘main security against misdecision and non-
decision.’
BENTHAM’S SEARCH FOR DETERMINACY AND
HIS CRITICISM OF JUDGE & CO
• Procedures should be simplified in part through legislative control
• Bentham stated that the chaos of the common law had to be dealt with
comprehensively and can be done by writing the law in detailed codes.
• This will bring order to chaos, if the law is in simple language and logical order
• It will replace uncertainty with certainty
• The thought that it would significantly diminish the power of the judges as
they will just administer rather than interpret the law
• And he thought this would remove much of the need for lawyers.
JOHN AUSTIN (1790-1859) LEGAL POSITIVISM

• Austin defined law by saying that it is the “command of the sovereign”.

He expounds on this further by identifying the elements of the definition
and distinguishing law from other concepts that are similar:
• “Commands” involve an expressed wish that something be done, and
“an evil” to be imposed if that wish is not complied with- in other words
a sanction for non-compliance.
• Rules are general commands (applying generally to a class), as
contrasted with specific or individual commands (“take the role today”).
JOHN AUSTIN CONTINUED

• 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.
• 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).
JOHN AUSTIN CONTINUED

• In 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.
• Austin’s particular theory of law is therefore 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, command,
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.
AUSTIN’S VIEW ON NATURAL LAW

• Austin advocated the separation of law and morals- Separation Thesis

“ With the goodness or badness of law as tried by the test of utility or by any of the
various tests which divide the opinions of mankind it has no immediate concern.”
• John Austin emphasized that law is not directly related or has no “immediate concern” to
natural or moral law. Law is not necessarily a moral concept and moral considerations do
not necessarily precede law. Whatever their relation may be is only mere accidental and
not immediate.
• In the legal positivists point of view, the body of legal rules should exist without conscious
regard for the norms of morality, although the latter’s influence are not completely denied.
There are legal rules that do not measure up to moral law but do not cease to be legal
rules.
CRITICIMS OF BENTHAM

• It makes the committal of any crime justified if it made someone happy

• The utilitarian theory is impracticable. The theory assumes that an individual has
sufficient time, information and knowledge to calculate the consequences of an act,
evaluate their worth and make comparison with other alternative acts before taking
actions.
• It failed to recognize other motivations that guide human actions.
• Karl Marx, in Das Kapital, criticised utilitarianism on the grounds that the principle
failed to afford attention to the phenomenon that people from different
socioeconomic context perceive joy differently
CRITICISMS OF AUSTIN

Herbert Lionel Adolphus Hart (H.L.A Hart) criticized Austin stating that:
• law is not merely a combination of coercive orders backed by threats.
• Austin's definition also relies on the concept of the sovereign, whom he describes as someone to
whom the majority of society habitually obeys. Hart criticizes the idea of "habitual obedience" as
inadequate to explain the continuity and persistence of laws. He argues that habits of obedience to
one legislator cannot confer the right of succession to the next legislator or enable them to issue
commands. Hart suggests that a concept of rules, requiring both convergence of behavior and
attitude, is necessary to explain the existence of laws and their persistence beyond the lifespan of
individual legislators.
• Furthermore, Hart criticized Austin's belief that the sovereign possesses an unrestricted will. In
modern legal systems, legal limitations on sovereign power exist, without contradicting their
supremacy as the highest legislative authority within the legal framework. While Austin argued that
in democracies, the electorate forms the sovereign, Hart finds it absurd to conclude that the bulk of
society habitually obeys itself. Even if legislators make rules in their official capacity, such capacity
presupposes the existence of rules that confer such authority, thus conflicting with the concept of
sovereignty presented by Austin.