ANALYTICAL POSITIVISM – AN OVERVIEW

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This article is written by Aamina Rafeek of 10^th Semester of B.Com LLB (Hons.) of Government Law College, Ernakulam, an intern under Legal Vidhiya

ABSTRACT

The scope of jurisprudence has widened during 19^th century because of the necessities of the time. Different philosophers, scholars and jurists had different opinions with regard to definition of law and its purposes. Salmond preferred to divide jurisprudence into three different schools- Analytical School, Historical School, Ethical School. These divisions correspond to legal exposition, legal history and science of legislation i.e., dogmatic, historical and ethical aspects of jurisprudence.

Such classifications have been denounced by certain jurists as they claim it can lead to excessive duplication or unnecessary compartmentalization of legal philosophy which would serve no useful purpose. The supporters of classification held it to be in interest of uniformity and easy analysis of concepts in light of their common traits.

KEYWORDS

Positivism, jurisprudence, morality, command, sovereign, sanction, natural law, state, ought to be, duty

POSITIVISM IN LAW- AN INTRODUCTION

The term positivism is derived from the Latin term poneru, positum which means “to put”. Positivism in Western philosophy refers to any system that confines itself to the data of experience and excludes a priori (a pre-conceived knowledge acquired independently of any experience) or metaphysical speculations[1].

Positive law is that which is a creation of man, one which is formally defined. In the legal scenario, positivism meant that any attempt by a jurist or scholar to define a concept of law that went beyond the actual facts of existing legal systems and cannot be reached through objective studies of material reality shall be dismissed.

Legal positivism is a jurisprudential manner of interpreting law in positive terms. According to the positivist opinion, the source of a law is the recognized and accepted authority who lays down these laws to be followed by the society. The ethical and moral considerations can be set aside, if a law is added to a system then it is valid, even if it seems ‘bad” in certain perspectives. The merits of a law are a different and separate issue. Positivism emphasizes on the origin and structure of law.

Legal positivism has made its visible appearance in the analytical jurisprudence. It is an important school of jurisprudence which claims that morals are not objectives but the law must be objective and if morals are included in law, it will no longer be objective [2].

ANALYTICAL SCHOOL OF JURISPRUDENCE

Known by various names such as Positivist School, Austinian School of Jurisprudence and English School, the analytical school of jurisprudence is based on the legal maxim “Ubi civitas ibi lex” which means where there is a state, there will not be anarchy. This highlights the relation of law with that of state which is the founding principle of this school.

The major premise of analytical school is to deal with law as it exists in the present form. It aims to analyse the principles of law as it actually exist in a given legal system. The advocates of this school are neither concerned with the history of law nor its future, but they limit themselves to the study of law as it actually exists i.e., positus. It is for this reason that the school is also referred to as Positive school of jurisprudence.

The positivists’ main concern is the law that is actually found (positum) rather than the ideal law. In simple language, ideal law is the perfect law for a society whereas law which is actually ‘found’ or ‘made’ concerns logical and welfare thinking in legislation[3]. Law according to this school is the command of a sovereign backed by sanctions. This school is therefore called imperative school of jurisprudence as it imposes an obligation to adhere to the laws through sanctions.

OBJECTIVE OF ANALYTICAL SCHOOL

The key purpose or function of analytical school of jurisprudence is to examine the ground principles of law without taking into account their historical origins, evolution, moral or ethical backgrounds. It gives clarity to legal principles in a methodical manner which is relevant to a larger and more developed legal systems. It tries to define the legal terms and illustrates how they are connected to one another. It aims to have a thorough knowledge of underlying notions that underpin all legal thinking[4].

As the name suggests, analytical school of jurisprudence emphasizes on classification of legal principles and rules and analysis of the legal concepts and their relationship with each other that imparts utility to these concepts.

ADVOCATES OF ANALYTICAL SCHOOL OF JURISPRUDENCE

Jeremy Bentham and John Austin are considered to be forerunners of this school of jurisprudence in England. Therefore, it has acquired the name Austinian School of Jurisprudence. William Markby, Holland, H.L.A. Hart, Salmond and Sheldon Amons are some other prominent exponents of this school in England.

The school received encouragement in United States from distinguished jurists like Professor Gray, Kocourck, and Hohfield and in the European continent from Kelson, Korkunov and others[5].

VIEWS OF JEREMY BENTHAM

Jeremy Bentham, often regarded as the father of jurisprudence, is considered to be the founder of positivism in modern sense of the term. It is often said that Austin’s ideas were merely “paraphrasing of Bentham’s theory”[6]. Bentham preferred to divide jurisprudence into two fields for better analysis-

* Expository Jurisprudence

* Censorial Jurisprudence.

Expository or analytical jurisprudence is concerned with ‘law as it is’ without any regard to its moral or immoral character. Censorial jurisprudence on the other hand is concerned with science of legislation that is what “law ought to be”. He advocated that there could be no reform of law without reforming its structure through a process of analysis, therefore he distinguished what ‘law is’ from what ‘law ought to be’. He advocated for supremacy of legislation over customs. The law in England during Bentham’s youth were not enacted with any definite guiding philosophy behind them, but was a result of customs or mode of thought that prevailed during that era[7].

According to him morality is not an essential attribute of law. He expounded the concept of positive law which commanded citizen to obey law ‘as it is’ or face legal sanctions in the event of non-compliance. Thus, completely disregarding the natural law supremacy, he advocated supremacy of law made by the sovereign, in interest of general good of people. He promoted an imperative law, in which sovereignty and command are central principles. Sanctions play a less important role in Bentham’s theory compared to that of Austin’s. Even if supported by simple religious or moral consequences, Bentham believed that sovereign edict would constitute law[8].

Bentham believed that every law might be considered in the light of 8 different aspects, which are as listed below-

Source- Source of a law is to be the will of the sovereign who governs the state.
Subjects- Refers to the parties on whom the will of sovereign is being imposed. It can be persons or things.
Object- Each law is enacted with a purpose, positive or negative, imposing duties or granting permission, depending on the situations.
Extent- The applicability of law is limited to a defined territorial border, or to a defined subject, in or upon which the act is committed.
Aspect- may be directive or sanctional
Force
Remedial state appendages
Expression- Laws are to be expressed in complete form to facilitate literal interpretation of law. Bentham was against judge made laws, which were result of liberal interpretation of ambiguous statutes. This was against his “positivist theory” which gave importance to study of law as it is, with no changes.

Therefore, it is often debated that Bentham deserved the title of being the father of analytical jurisprudence and not Austin.

Bentham is regarded as the flag bearer of theory of utilitarianism. He believed that function of law is to minimize pain and maximize pleasure to greatest number of individuals.

VIEWS OF JOHN AUSTIN

Austin is credited to be the “father of English Jurisprudence”. His studies were primarily focused on positive law. By positive law Austin meant “laws properly called” which is distinguished from morality which he referred to as “laws improperly called”[9]. He attributes the following 4 aspects to be essential for positive law[10]–

Command
Sanction
Duty
Sovereignty

According to him law is a political command emanating from a sovereign superior authority which enjoys social acceptance and the disobedience of which invites punishment. He therefore distinguishes positive law from positive morality which is devoid of any legal sanction.

It was Austin who for the first time treated jurisprudence as a science of law concerned with analysis of legal concepts, their examination and comparison in a scientific manner in order to determine their scope and extent in a given politically organized society[11].

Dr. Allen called Austin’s theory of Analytical jurisprudence as Imperative school and stated that Austin defined law as “a rule laid over for the guidance of intelligent beings by an intelligent being having power over him[12]. He divides law into two parts,

* Laws set by God for men

* Laws set by men for men.

They are both laws, the difference only lies in who created them.

According to Austin, positive morality includes man-made rules governing human conduct that lack one or more of the 4 essentials for law listed out by him. It includes rules of clubs or voluntary associations or international law which has no sovereign authority, in contrast to positive law specifically set by political superiors[13]. When we talk of positive morality of any group we are talking of actual moral opinions that they hold on some issue, which is not proper law but only a law by analogy.

Austin also lists down three exceptions to his proposed definition of “law’. There are three kinds of laws which according to him are not commands, yet law. They are-

Declaratory laws- Also known as explanatory laws, they are not commands are passed only to explain a law which is already in force.
Repealing laws- They are the new laws which revoke a previous command.
Laws of imperfect obligation- They are not treated as commands because there is no sanction attached to it.

Criticisms to Austin’s theory-

Austin’s positive law theory received criticisms from various scholar on different grounds.

Lon Fuller of United States held that law regulates human conduct and any law passed in derogation of popular will cannot sustain on a long run and will eventually crumple. The law therefore cannot be divorced from morality which includes within it values, ideals, notions and customs of a society.

German philosopher Gustav Radbruch opined that Austinian theory of law reflects dictatorship as was the case in Nazi Germany, which lacked ethics and values[14].

Bryce remarked Austin’s theory to be full of errors which hardly has any significance in juristic thought.

The general grounds under which Austin’s views were criticised are as follows.

Customs overlooked- Since laws were commands of sovereign, the customary practices followed voluntarily by a community did not fall within the purview of law. Over emphasize on command in contrast to people’s will is not a suitable approach in the modern democratic era.
Non-recognition of judge mad laws- Austinian theory propagated the judges as implementer of commands of sovereign. They are to apply the existing laws and not to make any new themselves.
International law is merely treated as a positive morality by Austin as it lacks sanction and does not come from a sovereign authority[15]. This is a problematic interpretation in the modern globalizing period.
Ignorance of the Law-Morality link- Law can never be devoid of values and ethics of a society. The legal concepts of ‘right’, ’wrong’, ’duty’, ’obligation’ etc suggests that there is some moral element to this.
Sanction alone is not a means to induce obedience, there are other factors such as sympathy, reason, logic, deterrence.
Indivisibility of sovereign power criticized.

VIEWS OF H.L.A.HART

According to Hart, legal system is made up of two types of rules namely- primary rules and secondary rules. He said that primary rules are duty imposing while secondary rules confer power and the union of the two is the essence of law. Primary rules are rules meant to guide the conduct of the individuals and other legal persons in and secondary rules are rules about how primary rules are to be created and recognized[16].

Hart’s idea is quite simple. Primary rules tell you what you are obliged to do legally and what consequences attach to disobedience. Thus the criminal laws which prohibit and punish theft, murder, cheating etc. are examples of primary rules. On the other hand secondary rules are the ones which give effect to primary rules. Thus contract law empowers individuals and firms to make contracts; contract themselves are usually collection of primary rules. The secondary rules which are power conferring seek to remedy the defects of the primary rules that takes its birth[17].

As per Hart’s theory, the validity of a law is tested on basis of rule of recognition which is similar to Austin’s theory of sovereign command. He stated rule of recognition as the sole rule in a legal system whose binding force depends upon its acceptance, just like the laws enacted by British Queen in Parliament.

Hart does not down play the role of natural law in his theory of positivism. Unlike Austin and Kelson, Hart contends that it is necessary for law and morality to have certain element of natural law as a logical requirement. Hart’s positive law is a union of primary and secondary rules as discussed above and according to him morality is implicit in it. As a member of society, individuals feel morally bound to abide by these rules both as a matter of duty and obligation. Hart therefore asserts law and morality to be complementary and supplementary to each other.

VIEWS OF HANS KELSON

Hans Kelson insisted on separation of law from moral and sociological considerations. He wanted legal theory to be objective and therefore rejected Austin’s definition of law as a command. He also disregarded the idea of justice as a requirement for law, because many laws, though not just, may still continue as law. Kelson’s theory of ‘pure science of law’ is knowledge of what law ‘ought to be’. It is the ‘ought’ character which provides normative character to law[18]. For instance, if ‘A’ commits theft or murder he ought to be punished.

According to Kelson, law is a primary norm which stipulates sanction[19]. For him legal order is the hierarchy of norms having sanction and jurisprudence is the study of these norms which comprises legal order[20]. For e.g- if a person commits a crime, he ought to be punished. This ‘ought in the legal norm refers to sanction to be applied for violation of a stipulated norm[21].

Kelson’s theory is based on a basic norm called ‘grundnorm’ ‘Grundnorm’ is a German word meaning fundamental norm. It is the basic law from which other laws derive its validity. The grundnorm is the starting point in a legal system and from this base; a legal system broadens down in a gradation becoming more detailed and specific as it progresses[22]. this is a dynamic process. At the top of the pyramid is the grundnorm, which is independent. The subordinate norms are controlled by the norms superior to them in hierarchical order[23].

To make the concept clear, let’s take the example of the Indian Constitution. It is regarded as the basic law of the land due to the legal and social acceptance attached to it. All other laws of the country derive its validity upon conforming with the principles laid out in the Constitution. The organs of the government- Legislature, Executive and Judiciary- are sub norms to the basic law or the grundnorm which is the Constitution.

Even though amendments are done, it cannot be made to alter the basic structure and framework of the Constitution. This makes it clear that grundnorm principle is applicable in Indian legal scenario.

CONCLUSION

The analytical positivism of Austin, Kant, and Hart which dominated the English legal system was founded on three basic assumptions namely,

– Sovereign or grundnorm as a law making authority.

– Separation of law from morality

– Insistence of a coercive force to ensure compliance with the laws.

Thus, here analytical positivism places law maker above law and law is solely based on coercion or force and is unrelated to ethics, values or justice.

The Analytical school focuses on studying law by analyzing its structure, language and internal logic. This school has a significant influence on development of legal theory particularly in common law jurisdictions, shaping discussions about nature and functions of law within societies[24]

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