Course:Law3020/2014WT1/Group E/Positivism

Legal Positivism

Legal Positivism is an approach that arose as a reaction to the teleological nature of natural law. Rather than finding that law must be defined in normative terms, legal positivist seek to offer a normatively neutral definition or explanation of law. Legal positive see law as a societal fact, which is to be characterized using empirical and evaluative neutral terms. Accordingly legal positivist focus on what the law is, and not what it should be. While there are different Positivist theorists, each with their own characterizations and justifications of legal positivism, the basic tenet that links them together is the belief law is a human construct. While natural law theorists propose that all law derives from God or some higher power, legal positivists do not reject religion entirely as a source of law, but distinguish God’s law from other human sources of law.

John Austin a major advocate of the legal positivist theory determined that there are three kinds of directives governing humans; 1) god’s law (religion), 2) positive morality (norms, customs ect), and 3) positive law (a command, created by the sovereign, and backed by sanctions). While natural law believes that valid law must be moral, legal positivist find that both positive law and positive morality may be immoral (although congruence is desirable). Accordingly Positivist believe that law and morality remain separate. The separation however allows for morality to be used to gauge the validity of laws.

Austin found that in order for a law to be valid it must; 1) Be empirically provable, 2) must be a command, made by the sovereign, backed by sanctions 3) must be made in accordance with the law making jurisdiction regarding the creation of law. According to Austin the superior is the sovereign who is a determinate and common superior to whom the bulk of a given society are in a habit of obedience or submission. The sovereign can be either an individual or an aggregate body. With regards to sanctions, Austin believed that a sanction could either be a conditional good or a conditional evil. Austin also contended that in order for a law to be valid it had to be created in accordance with the rule of the law-making jurisdiction regarding the creation of law. In order to meet this requirement a law must pass the so-called “Pedigree Test”. The main questions to be asked under the test are; What is the rule origins? And did it come into being correctly as a law according to the rules of the system? Austin defined judges as a “subordinate”, who act as a minister carrying out the limited authority which has been delegated to him or her by the state (and which may be over-ruled by the state). Further judge’s decisions were considered by Austin to be specific commands, as opposed to legislation, which are generalized rules. Following John Austin, modern legal positivist such as Jeremy Bentham, HLA Hart, and Joseph Raz began to individually modify and expand aspects of the theory. HLA Hart one of the modern legal positivist determined contrary to Austin that laws are not commands, but in fact are different types of rules; primary rules and secondary rules. Primary rules inform people of what we can and cannot do, and secondary rules; are the rules that outline how rules can be changed, how to adjudicate disputes about the rules. Also contrary to Austin, Hart found that laws are not obeyed as a result of them being commands, but due to the Rule of Recognition. Hart found that in order for laws to be valid, officials within the legal system must recognize them as valid. Accordingly they must consistently apply them to guide their behaviour and believe that they ought to apply them, and engage in such behaviour. However, the belief that they should apply them does not mean that they are moral.