Course:Law3020/2014WT1/Group N/Positivism
Legal Positivism Law Theory
Theorist: John Austin
The Theory:
Legal Positivism was a response to natural law theory which separated morality from the law. Still in the time of Christendom, John Austin still accepts that God set down laws. God's law was "revealed law." He expanded the concept of legal formation to include man made laws. He divided man made laws into two categories:
- Positive Morality (Norms): These included things like manners, customs, club rules, international law, and [English] constitutional law.
- Positive Law: Can easily be defined as commands. They are issued by superiors to subordinates, and backed by sanctions that serve to enforce the law.
Three Requirements for a Valid Law:
- Command: Direction to do or not to do something.
- Issued by superiors to subordinates: Determinant and common superior to whom the bulk of a given society are in a habit of obedience or submission.
- Sanctions: The threat of “evil” which ensures compliance.
• Complications with Austin’s Positivist Analysis: o What is the role of the judge? o Determining the identity of the sovereign. • Hart: o Not dependent upon moral content. o Brings Austin’s theory into a modern society. o Brings in laws that are not characterized as commands. o Law is a mixture of primary rules (akin John Austin rules) and defines secondary rules which are less like commands but more regulatory (Austin did not specifically address these secondary rules). o Acknowledged the rule of recognition. Positive morality should be followed because officials believe the integrity of the laws and are obligated to be bound by them. • Raz and Bentham o Focus is on utility. Laws should be for the good of the people. Laws are justified by the services they provide to the people.