POSITIVISM - AN OVERVIEW

Shad Saleem Faruqi

Positivism is not a consistent and homogenous body of doctrines and beliefs. It exhibits
tremendous diversity. But the following are its main ideas.

The Nature of Law

Positivism [P] emphasises law’s connection with human will and rejects all
metaphysical origins of laws.

Austin focussed on law’s connection with the will of the state. His top-down view of the law is
not supported by the historical and sociological jurists and by Dworkin. In contrast with Austin,
Hart saw law as a man-made system of two types of rules supported by the internal point of
view. Kelsen viewed law as an organised and systematised hierarchy of norms derived logically
from a grundnorm.

Substantive content of law

To most positivists law may have any content. The content of law is dictated by the political
sovereign (Austin) or is derived logically from a superior norm (Kelsen). But Hart rejects the
idea that law may have any content. There are five “facts of human condition” or “inevitable
features of social existence” which dictate a minimum content of law.

Universal laws
There are no transcendental laws. Natural law is a mirage. Natural law values are subjective and
arbitrary. They are not capable of precise and definitive formulation. Moral judgements cannot
be established or defended by rational arguments, evidence or proof (non-cognitivism).

Narrow definition of law

Law is defined narrowly and formally. Law consists of only those rules which satisfy the
pedigree test or which are validated by a rule of recognition or which have passed through the
legal filter. Simmonds calls this the ‘black-letter’ view of the law. This is in contrast with
Dworkin’s point of view that rules are not enough; and that in ‘hard cases’ reliance must be
placed on ‘non-rule standards’ which have legal force even though they do not go through the
legal filter.

Sovereignty
No superior law can limit the will of the sovereign. The sovereign is unlimited,
illimitable, indivisible and continuous (Austin) Note that Bentham, Kelsen and Hart
do not support this dogmatic view of sovereignty.

Methodology
1. The positivist methodology claims to be analytical, empirical, and deductive. It claims
to separate formal analysis from moral analysis. It seeks to rely on facts (i.e. the actual, existing
rules) and not on values, ideals and assumptions. There is emphasis on descriptions, not
prescriptions; on the ‘is’ and not on the ‘ought’. Note however that this claim is highly
exaggerated.

2. The role of logic in analysing and understanding law is emphasised.

3. Jurisprudence involves an analysis of legal concepts without reference to history, morality,
sociology etc. Lawyers are better occupied in analysing the nature of basic legal conceptions
than in speculating about such things as the social effects of law or its ultimate moral aims
(Austin). This emphasis on formal analysis is in contrast with Dworkin’s point of view that the
central concern should be with purposes and not with meanings.

Aims and Goals

1. Though P claims to be evaluatively neutral, it is clear that it values certainty and stability,
precision and predictability. It places great emphasis on order.

2. The point of the law is to provide a body of stable rules, predictably enforced as part of
the basic framework of a social order. A major object of law is to create stable expectations.

Validity of Law
1. According to Dworkin, positivism stands for the belief that the law of a community is
identified by a test which has nothing to do with the content of the law but with its pedigree or
with the manner in which the law was adopted.

Validity is one thing morality another. A law may have any content. Validity of a rule depends
entirely on a formal test. In the book by Waluchow, Inclusive Positivism, (1994), the author
defends positivism against this charge. According to him though positivism of the Hartian type
(‘soft positivism’) is compatible with very great iniquity, this need not be so. Positivism can
accommodate the use of moral principles by judges. What is needed is that the master rule of
recognition should include moral values. For example the Canadian written constitution contains
a phrase that the judges ‘shall take into account any such circumstances the court considers
appropriate and just in the circumstances’. This means that moral reasons can be determinative
of legal validity. Waluchow is right on this. But what if the legal system does not adopt moral
criterion of validity? Judges cannot adopt a higher law solution to invalidate unjust laws.

2. Validity of legal rules depends entirely on factors within the legal system itself and not
on external. or objective criterion.

Morality & Justice

1. Fact and value must be distinguished. the law as it is and as it ought to be must be kept
separate.

2. But there is no dearth of instances when morality is posited into the law. At a thousand and
one points, law and morality intersect. This is not, however, a necessary or causal connection.
The connection is casual. Law can be moral, immoral or amoral.

3. Moral judgments are irrelevant to the identification of law. Morality is excluded from
the criterion of validity because it is not scientifically definable and verifiable. Value judgements
cannot be defended or established empirically (non-cognitivism). Exclusion of morality from the
rule of recognition will help to promote certainty and stability.

4. What is just and what is moral? Positivists are reluctant to involve themselves in this
inquiry. But if pressed to answer they may say that justice and morality are not external, superior
or prior to the law. Justice and morality are what the law says they are. In a general way it is just
and moral that there be certainty and precision in the law and predictability in judicial decisions.
If the law is certain, like can be treated as alike and this is an aspect of fairness.

Reform of the law

Positivism is not opposed to reform but does not dwell on it either. Instead, it emphasises analysis
of law as it is, as a prior step to understanding what it ought to be.

The Judicial Role

1. A judge must give effect to the will of Parliament. He must not go beyond the four corners
of legislation or common law. He must rely on logic and deduction and exclude history, morality
etc. This is in contrast with Dworkin’s call to judges to adopt a holistic view of legal practice to
adopt a morally charged interpretation of the law; to infuse ‘integrity’ into the law by reading
rules in the light of contemporaneous non-rule standards.

2. Stare decisis is supported by positivism because it contributes to certainty in the law

and predictability in judicial decisions.

Enforcement of Morality

The only justification for intervention in the life of a citizen is to prevent him from causing harm
to others (J S Mill).

Bindingness of law

With some exceptions Iike in the theory of Hart, there is general acceptance of the legal
obligation to obey valid laws. Hart, however, distinguishes between “obliged to obey” and
“obligation to obey”.

Prominent Contributions

1. Positivism seeks to promote certainly, precision and clarity in the law and
predictability in judicial decisions. But whether certainly is desirable or is achievable are
contentious issues.

2. It emphasizes autonomy of the law.

3. It provides a clear-cut criterion of validity.

4. It emphasizes empirical and scientific investigation.

Prominent Drawbacks

1. Except in the theory of Hart, there is no concern with the substantive content of law.
Positivism is concerned only with how a rule came about; not what went into it or what
ought to have gone into it.

2. It is confined to the time frame of the present. The questions it asks, e.g. “Is this rule
law?’ are questions in the here and now not questions in the time frame of the continuum. It is
entirely relevant to ask: “Will this rule survive?” “Will it be obeyed?” “Will it achieve desirable
purposes?”

3. Denial of the status of law to natural law and custom, and acceptance of the supremacy
of positive law, are based on arbitrary pre-conceptions of what ought to constitute law in society.

4. Positivism fails to distinguish between obligation to obey and obliged to obey. It does
not tell us how, from a moral point of view, the law of the state is different from the law of the
gun- man!

5. It offers no safeguards against abuse of state power e.g. in Nazi Germany.

6. Legal analysis can never be divorced from the social and moral consequences of the
choice of legal interpretation. In the formulation, application and interpretation of legal rules,
moral, social, economic and political factors can never be excluded.

7. Dworkin has offered strong criticisms of what he has branded ‘legal conventionalism’.
The most prominent criticism, supported by Simmonds, is that positivism’s extreme , rule-
centered attitude towards the law misses the whole point of the law.

JOHN AUSTIN (1790-1859)

The Imperative/Command/English/Expository Theory of Law

1. The task of jurisprudence is to analyse the law as it is, not as it ought to be.

2. The analysis must be general, not particular.

3. There is a distinction between laws properly so-called and laws improperly so-called.

Laws

Laws properly so-called. Laws improperly so-called

These are commands. These are not commands
They are law in its
largest meaning.

Set by God Set by men Law by analogy Law by

to men to men e.g. rules of fashion, metaphor
custom, international law. e.g. rules of
They are not commands. gravity
They are enforced by
mere opinion
as political superiors or in pursuance not as political superiors nor in
of rights conferred by such superiors. pursuance of rights conferred by
such superiors. These are positive
They are positive law.
They are general commands. morality”.
They may be:
a) direct
b) indirect (tacit commands ) e.g.
Delegated legislation by private persons
acting under the authority conferred
by political superiors.

4. “Positive law” is a rule laid down for the guidance ofan intelligent being by another
intelligent being having political power over him. Positive Law has the following
characteristics:

* It is a command
* Of the sovereign to the subject
* It is backed by sanction
* It is general in nature

Law is a command

Command is the expression of a wish by a determinate person that another shall do or

forbear from doing some act subject to an evil in the event of disobedience.

Criticisms of the command nature of law.

1. In early societies custom and religion prevailed. Custom is not the command of
anyone in particular.

2. There was no determinate human superior to issue commands backed by sanctions.

By far and large submission to conduct was voluntary.

3. There are many categories of laws. Not all are commands.

- permissive or enabling laws

- rules of limitation
- Dworkinian non-rule standards
- Harts secondary rules, which are power conferring
- Declaratory or repealing laws

Law is the command of the sovereign to the subject

This is the top-down view of law. It is open to many criticisms.

I. The sources of law are many. Law making takes place at many levels. Law emanates
from the ever-changing multitude, which comprises the political machinery of the state.

2. In modern legal systems a determinate person or authority as the ultimate source of

 commands is difficult to trace. Sovereignty is divided and dispersed as in federal systems.
3. Austin’s explanation of judicial law making (that judges are mere delegates of
Parliament) is rejected. Judges are a separate and independent pillar of the legal edifice.
See for example the decision in Factortame No.2. (1991).
4. The top-down view of law cannot accommodate customary law international law and
private law.
5. The grundnorm precedes the sovereign and defines the sovereign.
6. Some laws are directed by the state to other public authorities.

Law is backed by sanction

According to Austin, sanction is the eventual or conditional evil. It is the enforcement of

obedience. It is the test of duty. It is what distinguishes a law from positive morality. It includes
nullity.

Criticisms

1. Natural lawyers argue that validity of law has nothing to do with sanction. Law owes its
validity to the fact that it expresses feelings of natural justice. A variation of this point of
view is Fuller’s. Law is a kind of order which has an internal moral structure to which it
must conform in order to be law.

2. The historical jurists argue that a rule is law if it embodies the volksgeist, the spirit of the
people.

3. At the back of Austin’s mind was an English criminal statute. His view of law is
inappropriate for other fields of law.

4. Validity rests on a pedigree test, not on sanction.

5. Sanction is a factor in enforcement and obedience not in identification of law. It is

relevant only in the time frame of the continuum.

6. It is because a rule is law that a sanction may be attached to it; it does not become law
because of sanction. (Gooodhart).

7. Law precedes the sanction and not vice versa. Sanction is derived from the law. Sanction
is not a condition of validity but a consequence of validity.

8. There is no dearth of ‘sanctionless duties’ and “unenforceable rights e.g. clauses

supported by ouster provisions, directive principles of state policies, and open-ended
clauses imposing duties.

9. According to Hart the command theory ignores some essential attributes of law. These
are:

(a) legitimacy or authority. Law is primarily an appeal to respect authority and not
to fear sanction.
(b) persistence/continuity.
(c) normativity and bindingness.
 (d) internal point of view.

Command must be general and continuous

Commands must be addressed to the community at large and not to individuals. Commands call
for acts or forbearances of a class as opposed to particular commands. Commands, which are
laws, are of a continuing nature rather than one-off orders.

Criticisms: This idea excludes from the province of jurisprudence (i) particular judicial orders
(ii) statutes dealing with a finite number of persons, and (iii) private law.

Concept of sovereignty

I. Every political society has a sovereign power.

2. The sovereign power is determinate.

3. Habitual obedience of the subjects to the sovereign is the mark of the sovereign’s
sovereignty.

4. There are two marks of sovereignty

(a) Positive. The sovereign receives habitual obedience from the bulk of society.
(b) Negative. The sovereign is not in the habit of obedience to any like sovereign
internally or externally.

5. Sovereign power is unlimited and illimitable both substantively and procedurally.

6. Sovereign power is indivisible.

7. Sovereign power is continuous.

In Defence of Austinian Positivism

At one time Austin was a religion. Today some regard him as a disease! At one time his
jurisprudence was the “characteristic jurisprudence of England” and a halo was put around his
name. Today most find it fashionable to hollow him. But in recent years a number of scholars,
among them Guest and Cotterrell, have offered strong support for many of Austin’s ideas.

Simplicity & coherence: We are reminded that Austin’s ideas on law and sovereignty were
simple, concise, straightforward and internally consistent.

Clarity: His work in analytical jurisprudence promoted clarity and precision in the law. His
writings were one of the first attempts other than Blackstones to analyse systematically the basic
forms of a ‘developed’ legal system. His purely conceptual, dispassionate and morally neutral
analysis of legal concepts provides a useful example of the application of analytical modes of
investigation to the study of law. The analytical discipline is a monument to his contribution to
English legal thought.
Empirical methodology: His empirical methodology is capable of very wide application.

Law’s autonomy: He believed that law was a self-contained and autonomous body of rules.
Legal analysis is separate from a moral, economic, historical or sociological scrutiny. What is
legal is distinguishable from the non-legal, the moral and the social.
This idea was obviously central to Kelsen’s theory as well.

Location of sovereignty: Austin was seeking to provide an unfailing test for location of
sovereignty in a state. He recognised that law cannot, in the last resort, be based on law but must
be based on something outside the law. He sought to base it upon a sociological fact - the habitual
obedience of the mass of the population to a determinate human superior. [Guest points out that
this is not dissimilar with Hart’s idea that the rule of recognition is valid because it is accepted
by judges and officials.]

Criterion of validity: Traceability to the sovereign was Austin’s formal and simple criterion of
the validity of a rule. This is similar to Kelsen’s theory in which the logical coherence of a legal
system is depicted by tracing all norms to one ultimate grundnorm.

General jurisprudence: His attempt at general jurisprudence helped to discover conclusions

of general validity. Of course many thought that he was primarily concerned with English and
Roman law.

Imperative element in law: Austin’s significant contribution to legal theory was his
replacement of the ideal of justice and morality in the definition of law by the command of the
sovereign. Law is not based on ideas of good and bad but on the power of the political superior.
Law is not something evolved or inherent in community life as is implicit in the common law or
natural law conception of law. Law is an instrument of power. Guest points out that this is not
too far apart from Hart’s theory in which legal validity is equated with what officials in power
recognise as law. Guest also states that the belief in the central role of the state in law making
seems more in tune with modem times in which government, not community, is seen as the
source of law.

Metaphysical origins of law rejected: The human creative element was emphasised. All talk
of transcendental, metaphysical, higher law was rejected. Human beings were the master their
own legal destiny.

Link between law & morality recognised : While rejecting an absolute, eternal, immutable
and self-existing higher law of nature, Austin recognised the frequent coincidence of positive
law and morality. But he insisted that for purposes of analysis, a distinction between the ‘is’ and
the ‘ought’ has to be made. This distinction remains a fundamental notion of positivist thinking.

Critical & Positive morality: Guest points out that it was Austin who first distinguished
between critical morality (the correct standards from a divine or critical point of view) and
positive morality (what people actually believe or accept). Hart employed this distinction to
attack Devlin’s thesis that society was justified in using criminal law to punish what the jurors
thought would arouse a mixture of intolerance, indignation and disgust.

Judge made law: Austin recognises that judge made law was an inevitable component of a
modern legal system. But he was able to avoid the criticism that judicial law making is a violation
of separation of powers by arguing that judicial legislation was a tacit command of the sovereign
i.e. a piece of delegated legislation.

Power conferring rules: Hart’s famous criticism of Austin (that Austin’s theory of law as
command cannot accommodate private power and public power conferring rules) is rejected by
many scholars:

(i) Laws that create rights are actually laws that impose duties or commands upon people other
than the holder the right. This is because right in one is correlative with a duty in another.
And duty implies command. The individual’s ability to make specific claims on others
through the legal system is derivative from the law’s commands. Cotterrel points out that
what this boils down to is that Hart’s liberal theory saw law as, at least partly, rights-based.
Austin saw law as entirely duty-based. In Austin’s ‘governmental view of law’ duties are
more fundamental than rights.

(ii) If powers are exceeded, nullity results. And to Austin nullity is a sanction. So even laws
conferring right and power are backed by sanction.

(iii) Ross points out that Hart’s belief that Austin’s theory cannot account for power conferring
rules is incorrect because rules conferring power on judges can be explained as part of the
sovereign’s will that people subject to the judges’ jurisdiction should do as judges direct.
.
Persistence and continuity of laws: Cotterrel rejects Hart’s criticism that A’s theory (of
habitual obedience to the sovereign) cannot explain the persistence and continuity of laws and
specifically the question why a successor’s sovereign’s laws are laws. According to Cotterrel,
Austin’s sovereign is not a person as many believe but is an abstraction. The King or members
of Parliament may die but parliament (the institutional sovereign) remains and continues to draw
habitual obedience.

The gunman situation writ large: Cotterrel also rejects Hart’s criticism that A’s view of law
(as commands supported by sanctions) is much like a gunman’s orders backed by threats.
According to Cotterrel “the relation between sovereign and subject is far more than one founded
on coercion. The habit of obedience in rooted in custom, prejudices and reason bottomed on the
principle of utility, that is, a recognition of the expediency of government.”

Dogmatic but logical: Some of the dogmatic aspects of Austin’ theory (e.g. that constitutional
law, international law and custom are not law but mere positive morality) are criticisable. But it
vas A’s hard-headed realism and stubborn logic that compelled him to draw these conclusions.

Generality of commands: Austin’s idea that law must be general is consistent with the notion
of the Rule of Law.

Conclusion

Criticisms of A’s theory are many. Besides the finer details of his theory of law and sovereignty
which have been severely condemned, there are other general objections to his view of law as
primarily an instrument of state power.
His view of government was undemocratic, absolutist and elitist. Democracy and human rights,
and limitations on the powers of the state did not figure in his view of law. Yet, voices in his
favour are now being heard. Manning says that Austin’s method helps to provide a clear if static
picture of how law stands at any time. Guest says that “there is a lot of common sense in what
Austin says. The command theory is a real live theory of how things actually are”.

There is no doubt that Austin’s theory was simple and logically consistent. But his conclusions
were undesirable. The substance of his theory is quite objectionable.

A theory of law of law that cannot accommodate international law, constitutional law, private
law, custom and morality cannot lay claim to realism.

A theory of law that cannot accommodate federalism, constitutionalism, fundamental rights and
judicial review is largely irrelevant to most constitutional states.

Cotterrel’s spirited defence of Austin - that Austin’s theory does not exclude power conferring
rules as Hart charged - has some substance. But if Austin did contemplate power-conferring
rules, why did he not say so explicitly. It cannot be denied that Austin’s theory emphasised
commands, duties and sanctions. That his theory can, through clever play of words,
accommodate power-conferring rules, does not weaken the truth of Hart’s very sensible criticism
of Austin. Further, Cotterrel’s view that Austin’s theory can explain the persistence and
continuity of laws because the Austinian sovereign is not a person as many believe but is an
abstraction so that a person may die but the institution lives on, exposes a clear weakness of
Austin’s theory. And that is that while claiming to propound a theory of general jurisprudence,
Austin was largely writing for his own country. What he thought was the truth for Britain, he
promoted as the truth for the rest of the world. A worthwhile theory of jurisprudence must be
general, not tailor-made to mirror the fables and foibles of a particular legal system. If Austin
was relying on the notion that the sovereign is not a person but an abstraction, then this is a
weakness in his theory. In some states the sovereign is indeed a person, a dictator, a military
ruler. Questions do arise as to why, after his death or defeat, his laws outlive him.

Austin’s great fault was that his theory does not distinguish between what is an essential
prerequisite and what is a common feature of most legal systems. Command, sanction and
generality are common features of law. But they are NOT essential prerequisites.

Another fault was that he undertook to define an undefinable concept. He was over-ambitious to try to capture in
the course of one simple definition, the many dimensions and complexities of this phenomenon called law. Law
cannot be captured in a simple definition in much the same way an ocean cannot be bottled, clouds cannot be
captured and the wind cannot be lassoed. Law is difficult to define because it is not only a process, it is also a
product. Form is important but content is even more important. Law is not only rules. It is also principles and non-
rule standards. Law is not only prescriptions. It is also purposes and functions. Our ideas of what the functions of
law are or ought to be are influenced by laws actual functioning. What the content is , is partly influenced by
consequence. The analysis of what the law is, is influenced by what the law ought to be.