Analytical jurisprudence is the general name for the approach to Jurisprudence which

concern itself mainly with classification of legal principles and rules and with analysis of
the concepts, relationships words and ideas used in legal system such as Person,
Obligation, Right, Duty, Act, etc

Analytical Legal Positivism

Analytical jurisprudence is the general name for the approach to Jurisprudence which concern
itself mainly with classification of legal principles and rules and with analysis of the
concepts, relationships words and ideas used in legal system such as Person, Obligation,
Right, Duty, Act, etc. It is mainly associated with Positivism, the approach to law which
concerns itself with positive law i.e., legal system and rules actually in force distinct from
ideals systems or law which should be. Analytical Jurisprudence though fore – shadowed by
Thomas Hobbes, is chiefly associated with Jeremy Bentham and Jhon Austin. It has been
extensively developed in England notably by Markby, Holland, Salmond, Hart, etc. in the
continent by Hans Kelson and U.S.A. mainly by John Chipmin Gray, Oliver Wendell
Holmes, etc.

Analytical School

The major premise of analytical school of jurisprudence is to deal with law as it exist in the
present form. It seeks to analyse the first principle of law as they actually exist in the given
legal system. The exponent of analytical school of jurisprudence considered that the most
important aspect of law is its relation to the State. They treat law as a command emanating
from the sovereign, namely, the State. This school is therefore, also called the imperative
school. The advocates of this school are neither concerned with the past of the law nor with
the future of it, but they confine themselves to the study of law as it actually exists i.e.,
positus. It is for this reason that this school is also termed as the Positive School of
Jurisprudence. Bentham and Austin are considered to be the Austinian School of
Jurisprudence. The school received encouragement in United States from distinguished jurists
like Gray, Hohfeld and Kocourck and in the European continent from Kelson, Korkunov and
others.

Analytical School – Meaning

Analytical Jurisprudence which Sir John Salmond terms Systematic Jurisprudence and C.K.
Allen as Imperative Jurisprudence is that approach of method which considers law as a body
of actual interrelated principles and not merele a haphazard selection of rule inextricably
interwoven with a transcendental Law of Nature. It seeks to define all laws, classify all laws,
discover the essential features of every law and get a yardstick by which all laws can be
measured. It mainly aims at reconstructing a scientifically valid system by analyzing legal
concept on the basis of observation and comparison by reducing law into a logical fasion.
Such an approach towards law is described Analytical Jurisprudence. C.K Allen, ghowever,
maintains that since jurists of this School consider law as an imperative or command
emanating from a politically independent sovereign so the approach of these jurist may be
described as Imperative School of Jurisprudence. Analysis of legal rules, concepts and ideas
through empirical or scientific method is commonly described Analytical Jurisprudence.

Jeremy Bentham (1748 – 1832)

Jeremy Bentham heralded a new era in the history of legal thought in England. He is
considered to be the founder of positivism in the modern sense of the term. It has been rightly
said that Austin owes much to Bentham and on many points his propositions are propositions
are merely the ‘pare – phasing of Bentham’s theory’. Bentham’s classic works reveal that
truly speaking, he should be considered to be the father of analytical positivism and not John
Austin as it is commonly believed.

Bentham was the son of a wealthy London Attorney. His genius was of rarest quality. He was
a talented person having the capacity and acumen of a jurist and a logician. Dicey in his book
‘Law and Public opinion in 19th Century’, has sketched Bentham’s ideas about
individualism, law and legal reforms which have affected the growth of English law in the
positive direction. The contribution of the Jeremy Bentham to the English Law reforms can
be summarised thus-

“He determined, in the first place, the principles on which reforms should be based.

Secondly, he determined the method i.e., the mode of legislation, by which reforms should be
carried out in England.”

Jeremy Bentham’s View on Law

English law as it existed at the end of the 18th century, when Bentham was still in his youth,
had developed almost in a haphazard way as a result of customs or modes of thought which
prevailed at different period. The laws which were then in existence were not enacted with
any definite guiding principles behind them. The law of England, like that of most countries
of contemporary Europe, had grown out of occasion and emergence. It is for this reason that
it is often said that in England law had in fact grown, rather than been made.

Jeremy Bentham defined law “as an 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 violation 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
conduct is in question”.

Bentham’s concept of law is imperative one i.e., law is an assembly of signs, declarations of
violation conceived or adopted by Sovereign in a State. He believed that every law may be
considered in the light of eight different aspects, viz. –
1. Source (law as the will of Sovereign).
2. Subjects (may be persons or things).
3. Objects (act, situation or forbearance).
4. Extent (law covers a portion of land on which acts have been done).
5. Aspect (may be directive or sanctional).
6. Force
7. Remedial State Appendages.
8. Expression.

Bentham’s Contribution

Bentham’s contribution to legal theory is epoch making. “The transition from the peculiar
brand of natural law doctrine in the work of Blackstone to the rigorous positivism of
Bentham represents one of the major developments in the history modern legal theory.” He
gave new directions for law making and legal research.

“With Bentham came the advent of legal positivism and with it the establishment of legal
theory as a science of investigation as distinct from the art of rational conjecture, Bentham
laid the foundations of this new approach, but, far from containing the solution to problems
involving the nature of positive law, his work was only the beginning of very long and varied,
series of debates, which are still going on today.”

Bentham’s Influence

Whatever may be the shortcomings of Bentham’s theory, which every theory is bound to
have, his constructive thinking and zeal for legal reform heralded a new era of legal reforms
in England. Legislation has become the most important method of law making in modern
times. In the field of jurisprudence, his definition of law down the foundations of new
schools. As stated earlier, Austin owes much to Bentham.

John Austin (1790 – 1859)

John Austin is the founder of the Analytical School. He is considered as the ‘father of English
Jurisprudence.’ He was elected to the Chair of Jurisprudence in the University of London in
1826. Then he proceeded to Germany and devoted some time to the study of Roman Law at it
was taken in Germany. The scientific treatment of Roman Law there made him aware of the
chaotic legal exposition of law in his own country. He took inspiration from it and proceeded
to make scientific arrangement of English Law. The method which he applied was essentially
of English origin. He avoid metaphysical method which is a German character.

Austin’s Approach towards Jurisprudence

Austin’s approach towards Jurisprudence and Law is found in his own work. ‘The Province
of Jurisprudence Determined’. The function of jurisprudence, in view of Austin, was to find
out general notions, principles and distinctions abstracted from positive system of law mature
and developed legal system of Rome and England. His first task, therefore, was to separate
‘positive’ law from positive morality and ethics. Positive law, according to Austin, was the
law as it is (Positus) rather than law as it ought to be with which he was not at all concerned.
His particular concept of law was, however, imperative being the command of the sovereign.
For ‘Every positive Law set by a given sovereign to a person or persons in a state of
subjection to its author’. According to Austin ‘The science of jurisprudence is concerned with
positive law or with laws strictly so called, as concerned without regard to their goodness or
badness. The positive law is characterized by four elements command, sanction, duty and
sovereignty.’

Austin’s method – Analytical

The method, which Austin applied, is called analytical method and he confined his his field
of study only to the positive law. Therefore, the school founded by him is called by various
names – ‘analytical’, ‘positivism’, ‘analytical positivism’. Some have objected to all three
terms. They say that the word ‘Positivism’ was started by Auguste Comte to indicate a
particular method of study. Though this positivism, later on, prepared the way for the 19th
century legal thought, it does not convey exactly the same at both the places. Therefore, the
word ‘positivism’ alone will not give a complete idea of Austin’s school. In the same way,
‘analysis’ also did not remain confined only to this school, therefore, it alone cannot give a
separate identity to the school. ‘Analytical positivism’ too may create confusion. The ‘Vienna
School’ in its ‘Pure Theory of Law’ also applies analytical positivism although in many
respect they vitally differ from Austin’s school. To avoid confusion and to give clarity which
is the aim of classification, Prof. Allen thinks it proper to call the Austin’s school as
‘Imperative School’. This name he gave on the bais of Austin’s conception of law )’Law is
command’).

Austin Theory of Imperative Law

‘Law’ in its most comprehensive and literal sense is a rule laid down for the guidance of an
intelligent being by an intelligent being having power over him. This excludes the ‘laws’ of
inanimate objects (physics, etc.) and the laws of plant or animal growth which are described
by Austin as law improperly so called’. Next, Austin recognizes the law of God or divine law
which he regards as ambiguous and misleading. Law properly so called is the positive law,
that is law set by men to men. These are of three types;

1. Laws set by political superiors to their subjects,

2. Laws set by men who are not political superiors, and
3. Rules improperly but by analogy termed law e.g., law of fashion or honour or rules of
international law.

The law set by political superior is the law properly so – called and (b) and (c) are positive
morality.

Austin Conception of Law

Austin defined law as “a rule laid for the guidance of an intelligent being by an intelligent
being having power over him.” He divides law into two parts, namely, (1) Laws set by God
for men, and (2) Human Law, that is laws made by men for men. He says that positive
morality is not law properly so called but it is law by analogy. According to him the study
and analysis of positive law alone is the appropriate subject – matter of jurisprudence. To
quote him, “the subject – matter of jurisprudence is positive law – law simply and strictly so
called; or law set by political superior to political inferiors.” The chief characteristics of
positive law are command, duty and sanctions, that is every law is command, imposing a
duty, enforced by sanction.

Austin, however, accepts that there are three kinds of laws which, though, not commands,
may be included within the purview of law by way of exception. They are: -
1. Declaratory or Explanatory laws; These are not commands because they are already in
existence and are passed only to explain the law which is already in force.
2. Laws of repeal; Austin does not treat such laws as commands because they are in fact the
revocation of a command.
3. Laws of imperfect obligation; they are not treated as command because there is no sanction
to them. Austin holds that command to become law, must be accompanied by duty and
sanction for its enforcement.

Austin’s Concept of Law

Austin’s Definition of Law; Law, in the common use, means and includes things which
cannot be properly called ‘law’. Austin defined law as ‘a rule laid down for the guidance of
an intelligent being by an intelligent being having power over him.’

Law of 2 kinds: (1) Law of God, and (2) Human Laws: This may be divided into two parts:
(1) Law of God – Laws set by God for men. (2) Human Laws – Laws set by men for men.

Two kinds of Human Laws, Human Laws may be divided into two classes;
1. Positive Law; These are the laws set by political superiors as such, or by men not acting as
political superiors but acting in pursuance of legal rights conferred by political superiors.
Only these laws are the proper subject – matter of jurisprudence.

2. Other Laws; Those laws which are not set by political superiors (set by persons who are
not acting in the capacity or character of political superiors) or by men in pursuance of legal
rights.

Analogous to the laws of the latter class are a number of rules to which the name of law is
improperly given. They are opinions or sentiments of an undeterminate body of men, as laws
of fashion or honour. Austin places International Law under this class. In the same way, there
are certain other rules which are called law metaphorically. They too are laws improperly so
called.

Positive Law as Command

The law properly so – called is the positive law depends upon political authority – the
sovereign. Every rule, therefore, according to Austin is a command. So laws properly so
called are a species of commands. If you express or intimate a wish that I shall do or forbear
from some of your wish, the expression or intimation of your wish is a command. If I am
bound by it, I lie under a duty to obey it. Command – duty are, therefore, correlative terms.
Command further implies not only duty but sanction also.

Law is Command
Positive law is the subject – matter of jurisprudence, Austin says that only the positive law is
the proper subject – matter of study for jurisprudence. “The matter of jurisprudence is
positive law: law simply and strictly so called: or law set by political superiors to political
inferiors.” Jurisprudence is the general science of positive law. The characteristics of law.

Command and Sanction

Sanction as an evil which will be incurred if a command is disobeyed and is the means by
which a command or duty is enforced. It is wider than punishment. A reward for obeying the
command can scarcely be called a sanction. A command embraces:
(a) A wish or desire conceived by a rational being to another rational being who shall do or
forbear as commanded;
(b) An evil to proceed from the former to be incurred by the latter in case of non –
compliance; and
(c) An expression or intimation of the will by words or otherwise.

Commands are of two species:

(a) Las or rules, and
(b) Occasional commands.

A command is a law or rules where it obliges generally to acts or forbearances of people. It is

occasional or particular when it obliges to a specific individual for act or forbearance.

Law is a command which obliges a person or persons to a course of conduct. It requires

signification and can, therefore, only emanate from a determinable source or author (a person
or body of persons).

Laws proceed from superiors and bind and oblige inferiors. Superiors are invested with
might: the power of affecting others with pain or evil and thereby of forcing them to conform
their conduct to their orders.

Command Exceptions

The proposition that all laws are commands must, therefore, be taken with limitations for it is
applied to objects which are not commands. These exceptions are:
(a) Acts of the legislature to explain positive laws or which are declaratory of the existing
laws only;
(b) Repealing statutes (which are revocations of commands);
(c) Laws of imperfect obligations without an effective sanction like rules of morality or rules
of international law.

Theory of Sovereignty

Every positive law (or every law properly so – called) is set by a sovereign person or a
sovereign body to a member or members of independent political society wherein that person
or body is sovereign or supreme. In other words, law is set by the sovereign to a person or
persons who are in a state of subjection to its author. The relationship subsisting between the
superior and rest of the given society is that of sovereign and subject. Generality of its
member must be in a habit of obedience to a determinate common superior. Further the
power of the sovereign is incapable of legal limitation.

Austin’s method of Jurisprudence

Austin Method: analysis; This method can be applied only in civilized societies. The name of
this school – ‘analytical’ itself indicates the method. Austin considered analysis as the chief
instrument of jurisprudence. Austin’s definition of law as the “command of the sovereign”
suggests that only the legal systems of the civilized societies can become the proper subject –
matter of jurisprudence because it is possible only in such societies that the sovereign can
enforce his commands with an effective machinery of administration. Law should be
carefully studied and analyzed and the principle underlying therein should be found out. This
method is proving inadequate in modern times because jurisprudence is to solve many legal
problems which have arisen under changed conditions and it has to make constructive
suggestions also, but, at the time, when Austin gave his theory, it helped in removing the
confusion created by the abstract theories about the scope and method of jurisprudence.

Austin’s Contribution; Opening a New Era of Approach

These are the weaknesses of Austin’s theory pointing out by his critics. Every theory has its
limitations. Moreover Austin laid down many of his propositions as deduced from English
law as it was during his time. The credit goes to Austin for opening an era of new approach to
law. Even the defects of his theory have been a source of further enlightenment on the subject
as Hart says, “But the demonstration of precisely where and why he is wrong has proved to
be constant source of illumination, for his errors are often the mis – statement of truths of
central importance for the understanding of law and society’. One of his great critics,
Olivercrona, also acknowledges him as the pioneer of the modern positivists approach to law.
Thus Austin made great contributions to jurisprudence.

Austin’s method Characteristic of English Jurisprudence; Austin’s Influence

The influence of Austin’s theory was great due to its simplicity, consistency and clarity of
exposition. That is why Gray remarked: “If Austin went too far in considering the law as
always proceeding from the state, he conferred a great benefit on jurisprudence by bringing
out clearly that the law is at the mercy of the state.” Austin’s method in described as
characteristics of English jurisprudence. Prof. Allen says: “Far a systematic exposition of the
methods of English jurisprudence we will have to turn to Austin.” The same is true about
American also because Austin’s method was greatly adopted there Austin’s theory had little
influence in the continent for the time being, and especially Germans, who always mixed
metaphysical notions with jurisprudence, were least appreciate of it. But of late years Austin
has received an increasing attention and respect from the jurists of the Continent also.
Germans also have come round the Austin’s view and many of them are abjuring all ‘micnt
positivisches Rechet.’

The latin analytical theories have improved upon Austin’s theory and have given a more
practical and logical basis. Holland, though accepted the ‘command’ theory, made a slight
variation. He says:-

“A law, in the proper sense of the term is, therefore, a general rule of human action, taking
cognizance only of external acts, enforced by determinate authority.”

Later Jurists improved upon his theory

Salmond and Gray further improved upon it and considerably modified the analytical
positivist approach. They differ from Austin in his emphasis on sovereign as law giver.
According to Salmond, the law consists of the rules recognized and acted on by the court of
justice. Gray defines law what has been laid down as a rule of conduct by the persons ating as
judicial organs of the state. This emphasis on the personal factor in law, later on, caused the
emergence of the ‘Realist’ school of law.

The ‘Vienna School’ of law which is known as ‘pure Theory of Law’ (which we shall discuss
later on) also owes to Austin’s theory.

Austin’s Followers
Austin’s influence upon English legal thought has been profound and continuing. He has
been followed and emulated by many English jurists like Amos, Mark by, Holland, Salmond
and Hart – the last of the two partly reject Austin’s concept of law. Both for Salmond and
Hart positive law cannot be divorced from justice or morality. In the United States Gray,
Hohfield and Kocourek and the distinguished exponents of Analytical School of
Jurisprudence in one or the other way. In the continent Hans Kelson has been the most
influential jurist whose theory of ‘pure law’ has attracted world wide attention.

Conclusion
At the end it can be concluded that, analytical school of jurisprudence consider that the most
important aspect of law is its relation to the State. The School is, therefore also called the
imperative school. The school received encouragement in United States from distinguished
jurists like Gray, Hohfeld and Kocourck and in the European continent from Kelson,
Korkunov and others.

Analytical Jurisprudence is that approach of method which considers law as a body of actual
interrelated principles and not merely a haphazard selection of rule inextricably interwoven
with a transcendental Law of Nature. It seeks to define all laws, classify all laws, discover the
essential features of every law and get a yardstick by which all laws can be measured.

Introduction to Legal Positivism

A. Definition

Positivism is from the Latin root positus, which means to posit, postulate, or firmly affix the
existence of something. 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 institution, including administrative, executive, legislative, and judicial bodies.
The basic question to be asked when talking about this theory is “What is law?” Is it written?
Where does it come from? Legal positivism is a theory which answers these questions.

Legal positivism is the legal philosophy which argues that any and all laws are nothing more
and nothing less than simply the expression of the will of whatever authority created them.
Thus, no laws can be regarded as expressions of higher morality or higher principles to which
people can appeal when they disagree with the laws. It is a view that law is a social
construction. The creation of laws is simply an exercise in brute force and an expression of
power, not an attempt to realize any loftier moral or social goals. Therefore, from a positivist
perspective, it can be said that “legal rules or laws are valid not because they are rooted in
moral or natural law, but because they are enacted by legitimate authority and are accepted by
the society as such”.

B. History of Legal Positivism and its Proponents

Legal positivism has ancient roots. Christians believe that the Ten Commandments have
sacred and pre-eminent value in part because they were inscribed in stone by God, and
delivered to Moses on Mount Sinai. When the ancient Greeks intended for a new law to have
permanent validity, they inscribed it on stone or wood and displayed it in a public place for
all to see. In classical Rome, Emperor Justinian (483-565 A.D.) developed an elaborate
system of law that was contained in a detailed and voluminous written code.

Prior to the American Revolution, English political thinkers John Austin and Thomas Hobbes
articulated the command theory of law, which stood for the proposition that the only legal
authorities that courts should recognize are the commands of the sovereign, because only the
sovereign is entrusted with the power to enforce its commands with military and police force.

Thomas Hobbes argued that “it is improbable for any statute to be unjust”. According to him,
“before the names of just and unjust can take place, there must be some coercive power to
compel men equally to the performance of their covenants … and such power there is none
before the creation of the commonwealth”. In this, he meant that “laws are the rules of just
and unjust, nothing being reputed unjust that is not contrary to some law. For Hobbes, the
sovereign is not subject to laws for having the power to make and repeal laws for having the
power to make and repeal laws; he may, when he pleases, free himself from their subjection.”
What he stressed is that “to the care of the sovereign belongs the making of good laws.”
Furthermore, he concludes that “all that is done by such power is warranted and owned by
every one of the people, and that which every man will have so, no man can say is unjust.”
John Austin on the other hand, adopted some ideas of Thomas Hobbes in his legal philosophy
about the nature of law. Additionally, he was known individually for his “dogma” of legal
positivism which states that:

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.

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.

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.

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).

Another famous advocate of legal positivism in America’s history is probably Justice Oliver
Wendell Holmes, Jr. He wrote that the “prophecies of what the courts will do in fact, and
nothing more pretentious, are what I mean by the law”. Holmes made a description of what
positive law is in the realm of the courts. In making this statement, Holmes was suggesting
that the meaning of any written law is determined by the individual judges interpreting them,
and until a judge has weighed in on a legal issue, the law is ultimately little more than an
exercise in trying to guess the way a judge will rule in a case.

II. Approaches to Legal Positivism

According to John Austin, “the existence of the 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 another enquiry.”

The positivists do not say that the law’s merits are unintelligible, unimportant, or peripheral
to the philosophy of law. However, the merits of law do not determine whether a law or a
legal system indeed exists. The existence of a legal system in a society can be inferred from
the different structures of governance present, and not on the extent to which it satisfies ideals
of justice, democracy, or rule of law. The laws which are in force in a certain system depends
on what kind of social standards its officials recognize as authoritative. They may be
legislative enactments, judicial decisions, or social customs. The fact that a policy is just,
wise, efficient, or prudent is never a sufficient reason for thinking that it is actually the law;
and the fact that it is unjust, unwise, inefficient or imprudent is never a sufficient reason for
doubting it. According to positivism, law is a matter of what has been posited.

There are many versions or interpretations of legal positivism. But perhaps, the most popular
version or interpretation would be that of the Separation Thesis. According to Hart, a
contemporary legal positivist, separation thesis is the essence of legal positivism. The main
point or essence of this thesis is that, the law and morality are conceptually distinct.

In order to know what your legal rights are, you need to look at what laws your society has.
In order to know what your moral rights are, you need to figure out what is the true morality.
It is possible for a person to have legal rights that the true morality says he should not have,
and the society might also deny a person’s legal rights that the true morality dictates one must
have.

However, there some conflicting views on whether there are possible legal systems with such
constraints. In inclusive positivism or also known as incorporationism or soft positivism, it is
possible for a society’s rule of recognition to incorporate moral constraints on the content of
law. Contrary to this is the exclusive positivism or also called as the hard positivism, in which
it denies that a legal system can incorporate moral constraints on legal validity. Some
exclusive positivists subscribe to the Source Thesis. According to this, the existence and
content of law can always be determined by reference to its sources without recourse to moral
arguments.

Going back to Austin’s legal positivism as explained by the separation thesis, according to
some people who have given interpretation to this, based on the essence of the thesis, the law
must be entirely free of moral notions. However, the very fact that Austin thinks that the
specific content of the law considers not only an inquiry into its existence, but also a separate
inquiry into its merit or demerit, implies that the laws can, and do at least sometimes,
reproduce or satisfy certain demands of morality.
Herbert Hart, a legal philosopher agrees with Austin. He explained that Austin did not
actually say that the norms of moral law and the precepts of the natural law did not have any
influence in the promulgation of rules and regulations. In addition to this, he also said that
Austin did not imply that positive law is non-moral. A person may argue that positive law
must conform to moral and natural law but to say that positive law is null and void simply
because it is conflicting with the moral and natural law is foolish and absurd.

III. THE LAW AND THE STATE/THE SUPREME POLITICAL SUPERIOR

In Thomas Hobbes’ and 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. But this does not mean that the state can do
no wrong in the expression and enforcement of its will, however, even if a wrong is done by
the state, no right can be claimed against it.
From the concept of law of the positivists, the supreme political superior is the state, as a
collective legal association under the rule of the majority. The legal doctrine of non-suability
was derived from this concept.

But it must be remembered that the exercise of the will of the supreme political superior by
the government is not absolute. When there is a deliberate and unrelenting disregard of the
will of the supreme political superior in the exercise of governmental powers, the majority
members of the society may blunt, curb, or even deny by response the adverse governmental
challenges.

There are two ways of manifesting the popular response of the people. One is by an electoral
response, which is a peaceable type. Electoral response is set not too far apart nor too close to
each other. The second type is the revolutionary response, which is an uprooting type. The
second type is not easily provoked. It happens or arises only in situations or circumstances in
which the people are having special difficulty and arouses them to engage in this kind of
response in order to check and contain the excesses in the exercise by the government of the
powers delegated to it. Depending on the intensity or graveness of the governmental
challenge, the people may decide to resort to this response or not.

When the challenge is only minimal, most probably it will just be ignored by the people since
it is not enough to make an impression or not enough to excite or arouse their collective sense
of antipathy. But when the challenge reaches its maximum intensity or the challenge of the
government has assumed such tremendous proportions, the capacity of the people to respond
has been stifled. In this kind of situation, only with outside assistance or intervention may the
will and power to resist be bargained. But if the governmental challenge is at its optimum
intensity, the people may already act effectively, so as not to allow the governmental
challenge to succeed and reach its maximum intensity.

There is no hard and fast rule that can be laid down with which to measure the intensity of the
challenge of the government. However, there are some factors that can serve as a guide. The
governmental challenge’s evaluation is a matter that addresses itself to the conscience of the
people. Therefore, the revolutionary response depends on the combination of the conditions
that produce or promise the best average result for the people.

IV. COMMAND THEORY OF LAW

Austin’s particular theory of law is 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.

V. KELSEN’S PURE POSITIVE LAW

Hans Kelsen, an Austrian jurist and philosopher, reiterated Austin’s idea that “the concept of
law has no moral connotations whatsoever.” During the 20th century, Kelsen claimed that at
that time, the traditional legal philosophies were hopelessly contaminated with political
ideology and moralizing. Hence, Kelsen propounded the idea of a Pure Theory of Law, which
is a theory of Positive Law. It is a general theory of law, not an interpretation of specific
national or international legal norms; but it offers a theory of interpretation. It is characterized
as a “pure” theory of law because it aims to focus on law alone. It only describes the law and
it also attempts to eliminate or set aside anything that is not law. Its aim is to free the science
of law from alien elements. Kelsen wanted to show his pure concept of positive law by
eliminating any significance of the norms of moral law to positive law. According to Kelsen,
“the law is simply not pure when cluttered with axiological norms.”

The law according to Kelsen is a system of norms. He maintained that legal norms are
created by acts of will or in other words, products of deliberate human action, as opposed to
moral norms which is by God. In relation to this, the pure law theory takes only into
consideration only the norms created by the acts of human beings, not norms which come
from other superhuman authorities.

VI. NORMATIVE LEGAL ORDER

According to Kelsen, the nature of the law “is not simply a system of coordinated norms of
equal level but a hierarchy of legal norms of different level.” For if the law were a system of
coordinated norms which are of equal level only (norms of moral law, precept of natural law,
legal norms), then legal norms would not be positive or jussive and would be a problem in
setting a guide to the legal ordering of the society.

According to Kelsen, there is such as thing as a grand unchallengeable norm, or simply the
grand norm, which is “not a product of free invention nor is it presupposed arbitrarily.” This
grand norm came from the collective will, competence, and capacity of the people. Kelsen
used this term to denote the basic norm, order, or rule that forms an underlying basis for a
legal system. Kelsen came up with this because there is a need to find a point of origin for all
law, on which the basic law and constitution can gain their legitimacy from. In other words,
the grand norm no longer depends on the moral law or natural law for its validity. Thus, all
the legal norms coming or emanating from this are all valid even if there are criticisms made
based on moral or natural law.

The pure positive law theory also distinguishes the “is-statement” from the “ought-
statement.” The “is-statement” that something is, or something is not done is expressive of a
simple reason for action. As for the “ought-statement” that something should be, or
something should be done, or something should not be done is expressive of a higher kind of
reason for action. It is a tense indicative of a conscientious desire to discharge and obligation.

For illustration purposes, here is an example:

Why should the people pay taxes on time? As stated above, there are two ways or reasons for
complying with the legal norm of paying taxes, specifically the “is-statement” and the
“ought-statement.”

One may answer that he needs to pay his taxes so that he will not be caught in a situation with
unpleasant consequences, which can mean that he would not pay at all if he can get away
with it. In this type of situation, the purpose of the person in paying his taxes is to avoid
criminal prosecution. The response of the person that he pays his taxes on time because the
legal norm commands him to do it is obviously an is-statement. In this example, the
normativeness of the legal norm has evaporated.
Another way on answering or reasoning is to discharge a conscientious obligation. According
to Kelsen, an answer applying the ought-statement to the question why people should pay
their taxes on time is the correct one. An example answer would be, the people should pay
their taxes on time because the legal norm should be observed or obeyed. In this example,
there is a higher justification for action, which is to discharge o conscientious obligation
without any thought of getting away from it.
Thus, in the normative legal order, the jussiveness of a legal order preserved and its functions
are clarified as well. First function is the prescriptive, which ordains a person to give, to do or
not to do something. An example of this would be trespass to dwelling which is prohibited as
written in the Revised Penal Code. The other is the authoritative function which delegates to
the people the power to issue rules and regulations to implement a legal norm. An example
for this type of function would be the issuance of administrative rules which would need the
force of society to back it up. Lastly, the permissive function which allows a person to give,
to do or not to do something. Self-defense would fall under this, the legal norm should
provide for an exemption from any sanction that may be attached to it.

The acts of the different branches of the government are considered as measures of coercion.
Sanctions and incentives are attached to a legal norm. This is what distinguishes a legal norm
from other social norms. If the law is not considered as positive or jussive, then it becomes
the same or similar with the other social norms. It is because of the positive and jussive
characteristic of the law that the members of the society are obliged to conduct themselves in
the manner prescribed, authorized, or permitted by the legal norm. There is no need for
further deliberation amongst the members of the society. They should observe and obey the
legal norms, if not, they must suffer the consequences. These norms of conduct bring about
peace and order within the society. This may have been the best defense yet for the positivist
theory of the conceptual independence of law from moral and natural laws.

VII. Essential Attributes of the Law

The law has three essential attributes, namely, the conscious formulation, generality, and
authoritativeness.
As a conscious exercise of authority, the rule or norm is different or separate from morals. A
specific rule or norm of human conduct must be articulated before there would be an actual
law of any kind. Conscious formulation as an element, distinguishes a rule or norm of
positive law from a rule or norm of morality. In the case of morality, there is no conscious
articulation to lay it down as such. There is no cause of action to enforce performance of it.
However, when they are voluntarily done they cannot be undone anymore even on the
allegation that their performance was without legal consideration. An example of a moral
obligation are the obligations provided in Article 1423 of the Civil Code of the Philippines.

The next attribute is known as generality. A rule or norm should not be in the particular form
for that would determine only specific acts, persons, or properties. Rules or norms should be
in general, or in other words, it must prescribe courses of conduct for all members of a
society or for all members of a class.

The last attribute is the authoritative enforcement. When a rule or norm is backed by the
authority of the state, it involves or entails with it a duty to obey. This is the crucial
characteristic of legal rules or legal norms. It is because of this attribute that sanctions or
incentives are provided, giving the people in authority the coercive competence to enforce the
rules or norms within the limits set by law. A sanction is any eventual evil annexed to the rule
or norm and may take the form of some punishment, specific, or substituted redress, or
enforced prevention. This is the element that makes the law imperative and jussive, or
making it not merely hortatory or advisory.
VIII. Positive Law vs. Natural Law

Natural law is law that already exists and is waiting to be discovered. It refers to the standard
of conduct that transcends human authority. It is that system of moral and ethical principals
that are inherit in human nature and can be discovered by humans through the use of their
natural intelligence. Positive law is law made by man. It is a system of rules established by
the governmental power of a state. Positive law can be based upon natural law, but generally
this view of law is opposed to the classical understanding of natural law.

Legal positivism is the view that law is fully defined by its existence as man-made law.
Function of positive law is to define the natural law and make it explicit; to make it effective
thru sanctions.
The positivist approach has a recurring problem of the separation of law from moral law and
natural law.
The positivists criticize the idea that natural laws are inherent in the concept of law. John
Austin advocated the separation of law and morals.

“ 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.

Another problem of the positivist approach with regard to the nature of law is that it deals
with the empirical sphere of reality ( that is ) rather than the transcendental sphere of the ideal
(the ought).Legal positivists do not believe in natural law in the legal ordering of society
because natural law is not common to everybody. There are conflicting precepts of natural
law making it difficult to establish which is right and which is wrong. It is better if the
concept of law is free from metaphysical speculation.

IX. Conflict with Historical View

The positivists view the law as simply the conscious creation of supreme political superior, a
man-made set of rules established and enforced by the state. In its perspective, the historical
view that the law emanates from life and spirit is ambiguous.
A rule cannot be made before the occurrence of the facts it purports to regulate or govern. In
the positivists view, the act has to happen before a rule can be made precisely to govern it.

To understand the conflict between the historical view and the positivists view, rules were
traced back in its simple beginnings. Rules back then were not established but were followed
as they are now. There is no much conflict at all. How people settled injuries or liabilities to
others were quite similar to the present days.
It can be drawn that the modern rules in relation to a particular place or people mostly were
traced or taken from past rules or from another legal system. Every modern rule has its own
beginning, the issue of conflict of positivists view and historical view is not as real as it was
thought.

X. Critique of Legal Positivism

The most influential criticisms of legal positivism all flow from the suspicion that it fails to
give morality its due. The law has important functions in creating harmony and peace in our
lives, advancing the common good, in securing human rights, or to govern with integrity and
yet it has no relevance with our morals.

Lon Fuller

Fuller denies the separation of law and morality. He believes that whatever virtues inherent in
or follow from clear, consistent, prospective, and open practices can be found not only in law
but in all other social practices with those features, including custom and positive morality.
His other criticism is that if law is a matter of fact then we are without an explanation of the
duty to obey. If an amoral law is made, there is still an obligation to obey.

Ronald Dworkin

Dworkin denies that there can be any general theory of the existence and content of law; he
denies that local theories of particular legal systems can identify law without recourse to its
merits, and he rejects the whole institutional focus of positivism. For him a theory of law is a
theory of how cases ought to be decided and it begins, not with an account of political
organization, but with an abstract ideal regulating the conditions under which governments
may use coercive force over their subjects. A society has a legal system only when, and to the
extent that, it honors this ideal, and its law is the set of all considerations that the courts of
such a society would be morally justified in applying, whether or not those considerations are
determined by any source.