CHAPTER V

The Positivist School

 The Positivist School of
Legal Philosophy
In 1832 John Austin, after a course of lectures at the
University of London, published a work which he
entitled

“University of Jurisprudence Determined”

 The Positivist School of
Legal Philosophy
Laws proper, or properly so called are commands; Laws properly so
called, may be aptly divided into the four following kinds:

1. The divine laws, or the laws of God: that is to say, the laws which are
set by God to his human creatures.

2. Positive Laws: that is to say, laws which are simply and strictly so
called, and which form the appropriate matter of general and
particular jurisprudence.

3. Positive morality, rules of positive morality, or positive moral rules.

4. Laws metaphorical or figurative, or merely metaphorical or

figurative.
 The Positivist School of
Legal Philosophy
Positive laws (the appropriate matter of jurisprudence) are related
in the way of resemblance, or by close or remote analogies to the
following objects:

the laws of God;

positive morality which are set by opinion; and

to laws metaphorical or laws merely metaphorical.

 How is law determined

For Austin, every law or rule is command. Or rather, laws or

rules, properly so called are a species of commands.
The essence or nature of a law imperative and proper, Austin
determined implicitly the essence of nature of a command.

By commands, Austin implied: “sanction” or “enforcement of

obedience”; “duty” or “obligation”; “superior and inferior.”
 How is law determined

Austin considered as a whole, “the province of jurisprudence

determined.” It is accomplished through the following:

He determined the essence or the nature which is common

to all laws that are laws properly so called. And,

Determined the respective characters of the four several

kinds into which laws may be aptly divided.
 “Imperative School”

After John Austin’s death he achieved greater fame and became

the founder of what was popularly called the “analytical school”.

According to Paton, this is rather misleading as it suggests that

analysis is the exclusive property of this school instead of being
(as it is) a method used throughout jurisprudence.

Hence, they prefer to speak of the “Imperative school” for this

emphasizes Austin’s particular conception of law.
 Advantages of Positive Law

Positive laws are related in the way of resemblance, or by

close to remote analogies.

Thus, by determining the essence of natural of a law

imperative and proper, and by determining the respective
characters, Austin was able to determine several things.

Austin’s aim was to separate positive law sharply from such

social rules as those of custom and morality.
 Advantages of Positive Law
“In determining the essence or nature of a law imperative
and proper, I determine implicitly the essence or nature of a
command; and

I distinguish such commands as are laws or rules from such

commands as are merely occasional or particular.”

Determining the nature of command, the meaning of the

terms are fixed such as:

“Command” implies: namely “sanction” or “enforcement

of obedience”; “duty” or “obligation”; “superior and
inferior.”
 “Pure Science of Law”

“Pure Science of Law”, stripped of all irrelevant materials, and

to separate jurisprudence from the social sciences as rigorously
as did the analysts.

So the jurists, if he is to be scientific, must study the legal

rules abstracted from all social conditions.

Hans Kelsen

Kelsen refuses to define law as a command, for that introduces

subjective and political considerations and he wishes his
science to be truly objective.
 “Pure Science of Law”

Kelsen wishes to free the law from the metaphysical

mist with which it has been covered at all times by the
speculations on justice or by the doctrine of ius naturae.

He wishes to separate the realm of jurisprudence from

the natural sciences.

The latter deals with cause and effect. Law on the other
hand does not attempt to describe but rather to prescribe
certain rules, to lay down standards of action which men
ought to follow.
 Advantages & Disadvantages of
Pure Science of Law”
“law is a weapon that may be used to effect many end.”

Hence, we must trace every legal act back to a norm

which imputes legal validity to certain human behavior.

In executing the norms of law the judge has much

discretion – it is impossible for any general rule to
provide for all contingencies, and the general rules must
be made precise by those who have the duty of applying
them.
 Advantages & Disadvantages of
Pure Science of Law”

In order to maintain the air of impartiality, Kelsen

regards as outside the scope of jurisprudence all
discussion of natural law, and all the examination of the
sources whence the judge draws his rules when there is
no authority in point.

This leaves the science of law very pure.

Advantages & Disadvantages of
Pure Science of Law”

However, pure science of law deprives it all of

interesting contact with life itself.

What we obtain from this method is not a theory of legal

development but simply the formal principles of juristic
thought.

To exclude the whole of sociology and ethics leaves

jurisprudence but a mental exercise in abstract motions.
 Advantages & Disadvantages of
Pure Science of Law”

If his premises are rigidly followed, the results is too formal

to be of service to jurisprudence;

If the jurist goes beyond his premises the method is

destroyed.

Kelsen’s methods does not even give us a true picture of

law, for jurisprudence must go beyond the formal hierarchy
of norms to study the social forces that create law.
 Utilitarian Principle
“Nature has placed mankind under the governance of two
sovereign masters, pain and pleasures. It is for them alone
to point out what we ought to do, as well as to determine
what we shall do.

To promote or to oppose that happiness”

By the principle of utility is meant that principle that which

approves or disapproves of every action whatsoever,
according to the tendency which it appears to have
augment or diminish the happiness of the party whose
interest is in question.
 Measures to achieve
the principle of utility

“To augment the happiness of the community”

The interest of the community is one of the most general expressions
that can occur in the phraseology of morals.

A thing is said to promote the interest or to be for the interest of an

individual is when it tends to add to the sum total of his pleasures
or to diminish the sum total of his pains.

An action is said to be conformable to the principle of utility when

the tendency it has to augment the happiness of the community is
greater than any it has to diminish it.

A measure of the government conformable to or dictate by the

principle of utility, when in like manner the tendency which it has to
augment the happiness of the community.

A man may be said to be a partisan of the principle of utility, when

his actions is determined by, and proportioned to the tendency to
augment or to diminish the happiness of the community.
Chapter VI
The Functional School
 SCHOOLS OF JURISTS AND METHODS OF JURISPRUDENCE

It has been possible to divide the jurists into three principal groups:
Philosophical School
18th Century Law-of-Nature School;
Metaphysical School – during the first half of 19th century;
and,
Social-Philosophical School – the Neo-Hegelians seems to
have the most fruitful program
Historical School
German Historical School; and
English Historical School
Analytical School
Instead of a further variation of one of the old creeds, a wholly new
creed is framing, may be styled the: Sociological School.
 The Functional School
The fundamental tenet of this school is that

“we cannot understand what a thing is unless we

study what it does.”

A study of judicial method that has led these writers

to urge the widening of the boundaries of
jurisprudence.
 Why is it so called
The Sociological School?
It pursues a comparative study of legal systems, legal
doctrines, and legal institutions as social phenomena,
and criticizes them with respect to their relation to social
conditions and social progress.
• They look more into the working of the law than to its
abstract content.
• They regard law as a social institution which may be
improved by intelligent human effort, and hold it
their duty to discover the best means of furthering
and directing such effort.
 Why is it so called
The Sociological School?
• They lay stress upon the social purposes which law
subserves rather than upon sanction.

• They urge that legal precepts are to be ragarded as

guides to results which are socially just.

• Their philosophical views are diverse.

 “Social Engineering”

System of laws must be analyzed thoroughly in order

to understand legal development; and

an appreciation of legal development, according to

Dean Pound is a key to the nature of law.

“Law is more than a set of abstract norms or legal order.”

• It is also a process of balancing conflicting interests

and securing the satisfaction of the maximum wants
with the minimum of friction.
 “Social Engineering”

A thorough development of the logical content of

established principles through rigid deductions,

Seeking thereby a certainty which shall permit judicial

decision to be predicated in detail with absolute
assurance.
Resolving problems in conflicting
interest in society
Experience has shown abundantly that rule and order
in the administration of justice are best attained by
making it possible to measure relations and
situations, as they become the subject of controversy
by reason.

The will of the society as to the relations of

inidividuals with each other may be ascertained and
declared in advance.
Resolving problems in conflicting
interest in society
For the great mass of causes, the ideals of uniformity
and certainty are to be reached by requiring and
permitting the magistrate to bring to bear upon them
a trained reason and an enlightened, discipline sense
of justice.
Resolving problems in conflicting
interest in society
For the great mass of causes, the ideals of uniformity
and certainty are to be reached by requiring and
permitting the magistrate to bring to bear upon them
a trained reason and an enlightened, discipline sense
of justice.
 ANALYTICAL JURISPRUDENCE

The analytical jurists pursues a comparative study of the

purposes, methods and ideas common to developed
systems of law by analysis of such systems and of their
doctrines and institutions in their matured forms.

In its crudest form, this is expressed in Austin’s dogma

that a law is a command.

The kernel of it is that law “is a product of conscious and

increasingly determinate human will.”
 ANALYTICAL JURISPRUDENCE

The Analytical School characteristics may be said to be:

 They consider developed system only;

 They regard the law as made consciously by lawgivers,
legislative or judicial;
 They see chiefly the force and constraint behind legal
orders;
 For them the typical law is a statute;
 Their philosophical views are usually utilitarian or
teleological.
 HISTORICAL JURISPRUDENCE

In opposition to the analytical jurist, the historical jurist and

philosophical jurist agree that law is found, not made.

They deny that law is a product of a conscious or

determinate human will.

They hold that the living organs of law are doctrinal

writing and judicial decision, whereby the life of a
people, expressed in the first instance in its traditional
rules of law, makes itself felt in a gradual development
by molding those rules to the conditions of the present.
 HISTORICAL JURISPRUDENCE

Hence, the historical jurists may be characterized thus:

 They consider the past rather than the present of the law;
 They regard the law as something that is not and in the
long run cannot be made consciously;
 They see chiefly the social pressure behind legal rules;
 Their type of law is custom;
 As a rule, their philosophical view have been Hegelian.
 PHILOSOPHICAL JURISPRUDENCE

The philosophical jurist studies the philosophical and

ethical bases of law, legal systems, and particular
doctrines and institutions, and criticizes them with
respect to such bases.
 PHILOSOPHICAL JURISPRUDENCE

In comparison with the analytical and historical jurists, the

philosophical jurists---
 Are more apt to consider the ideal future of law than its past or
present;
 Believe that when law is found, its principles may, and as a
matter of expediency, should be stated definitely and in certain
form;
 Look at the ethical and moral bases of rules rather than at its
sanction;
 Have no necessary preference for any particular form of law;
 Hold very diverse philosophical views.
 THE PRESENT STATUS OF
SOCIOLOGICAL JURISPRUDENCE
Sociological jurists today insists upon six points:

1. Study of the actual social effects of legal institutions and legal

doctrines;

2. Sociological study in connection with legal study in preparation for

legislation…. But it is not enough to compare the laws themselves. It is
much more important to study their social operation and the effects
which they produce, if any, when put in action;

3. Study of the means of making legal rules effective;

4. A means toward the end last considered is a sociological legal history;

5. The importance of reasonable and just solutions of individual causes,

too often sacrificed in the immediate past to the attempt to bring
about an impossible degree of certainty;

6. Make effort more effective in achieving the purpose of law.

The End.
Thank you!
- Lyle 