Introduction:
Legal positivism is a school of thought of analytical jurisprudence which was largely developed by eighteenth- and nineteenth-century by legal thinkers such as Jeremy Bentham and John Austin. While Bentham and Austin developed legal positivist theory, empiricism and logical positivism set the theoretical foundations for such developments to occur. It separate law from its ethical and focuses more on its structure and origin.
Derivation:
The term positivism is derived from positum, meaning, “to put\”. \”Positive law\” is that which is man-made, i.e., formally lay down.
MEANING:
Law as it is actually laid down has to be kept separate from the law ought to be.
POSITIVE / ANALYTICAL SCHOOL:
The analytical school is known by different names, it is also called the positive school because the exponents of this school are concerned neither with the past nor with the future of law but with law as “it exists” or as “it is”. This School of thought was founded by John Austin, therefore, it is also called “The Austinian School”.
PURPOSE OF POSITIVE SCHOOL:
The purpose of Positive or Analytical School is to analyse without reference either to their historical origin or development or their ethical significance or validity. This is the first principle of law. Another purpose of this school is to get detailed and systematic legal ideas which are essential for any mature system of law. The positive school brought terminology. precision in legal thinking. It provided us with clear, definite and scientific.
The chief exponents of positivists of analytical school in England are Bentham, Austin and Sir William Markby.
Bentham:-
Bentham was a lifelong reformer of law and he believed that no reforms of substantive law could be brought about without a reform of its form and structure. (Introduction of Jurisprudence)
Like Austin’s theory, Bentham advocated on imperative theory of law in which the key concepts are sovereignty and command. Bentham has shown flexibility in terms of sovereignty unlike Austin and he presented his theory with more clarity and innovation.
‘Sanctions’ generally play a less prominent part in the theory of Bentham unlike Austin. As per Bentham a Sovereign’s Command would be law even if supported only by religious or moral sanctions.
John Austin:
Austin is called the father of English Jurisprudence and also the founder of Analytical or Positive School. Austin’s Theory of Law:- Austin’s most important contribution to legal theory was his substitution of the command of the sovereign for any ideal of justice in the definition of law.
According to Austin Positive Law has four elements
- Command: Laws properly so called are a species of commands.
- Sanction: Such commands are enforced by sanctions
- Duty: Every duty properly so called supposes a command by which it is created.
- Sovereignty: Every positive law is set by a sovereign or a sovereign’s body of persons. According to Austin, a law is a command of the sovereign backed by sanction.
Criticism of Legal Positivism
- When Austin comments that sovereign is the creator of laws, he ignores the fact that foundation of law lies in common consciousness of the people which manifests themselves in customs and thus also overlooks Customary law which has always been widely respected and followed.
Personal laws like Hindu Law, Canon Law or Muslim law, existed long before a sovereign began to legislate, and yet, these laws were not only acknowledged but followed with immense devotion.
Secondly, Legal character of the law becomes obvious when it is applied by a Court of Law in the administration of Justice. Even Legal Sanctions, though created by the “sovereign” but are used through the courts. Courts may misinterpret a statue or reject a custom. In this process, the court often lays down Precedents or Case-Laws which are often religiously followed in future cases.
- The definition is majorly applicable on Monarchical Police State which authors the law and has the power to inflict evil on those who do not comply. In the modern era, there are empowering and enabling laws which confer privileges on the citizens. They are purely of permissive nature and give discretion to the individual himself. They cannot be called a command in their true sense. For example, the law which gives me my right to vote does not command me to do so neither tells me who to vote.
The law which gives me a right to write a will does not penalize me if I don’t.
- Unlike what is believes, the sanction is not the only motivation behind adherence to the law. It is also respected out of prudence and morality. One does not normally violate the traffic laws only because of fear of punishment but it may also to safe own life. Also, if everyone decides to challenge the law given by sovereign, it is bound to collapse…legal sanctions have practical limitations.
- Austin fails to recognize that International Law is not created by a sovereign and yet is recognized and appreciated by the majority of states as a law. There is no authority in International Arena which can enforce international obligations or sanction them. Yet, they are largely expected to be adhered to.
- Law is not always “Generally” applicable to all. Many times, it is specially designed to address certain people or certain situations.
Divorce laws, for example, is only applicable to those who want a divorce.
There are laws which are corporate or position eccentric.
Austin fails to consider such specialized or particular laws in his definition.
- Law, most importantly, is an instrument for the attainment of Justice. Any definition is incomplete if it fails to acknowledge that the end of law is justice.
- Another limitation is the indifference towards ethical elements which determine the law. The ethics on which a law is construed are essential in order to truly understand the nature and requirement of Law.
It has to be borne in minds that despite the fair criticisms Austin’s theory stands as one of the most important legal philosophies and some of its aspects still hold relevance.