Positivist School in Philosophy of Law

Enila, Shiela Mae B.
JD-1C-2023-0803
POSITIVIST SCHOOL IN PHILOSOPHY OF LAW
1. Positivist School in Philosophy of law is regarded as the most influential school of

thought in jurisprudence. Legal positivists' central tenet was that they examined
the law as it is, not as it should be. Those legal and moral principles were kept
apart. They believed that the law represents the superior's will, which is
supported by authority.
Its advocacy believe that the only source of law are those written rules,
regulations and principles that have been enacted, adopted, or recognized by a
governmental entity or political institution. Legal positivism answers the question
“What is law?” “Is it written?” “Where does it come from?” It argues that all laws
are nothing more and nothing less than an expression of the will of whatever
authority created them. Hence, no laws can be regarded as expressions of
higher morality or higher principles to which people can appeal when they
disagree with the laws. From a positivist perspective, we can say that legal rules
or laws are valid because they are enacted by legitimate authority and are
accepted by the society as such.
Positivist theories of law are those that focus on the description of law as it is in a
given time and place. This seemed to conflict with Natural Law and this pervaded
the thinking of 3 key jurists – Kelsen, Bentham, and Austin.
2. Law and jurisprudence in perspective of Austin, Kelsen and Bentham
a. John Austin adopted some ideas of Thomas Hobbes in his legal philosophy
about the nature of law. He was known individually for his “dogma” of legal
positivism which states that:
The existence of law is one thing; its merit or demerit is another. Whether it
be or be not is one enquiry; whether it be or be not conformable to an
JD-1C-2023-0803
assumed standard, is a different enquiry. A law, which actually exists, is a

law, though we happen to dislike it, or though it vary from the text, by which
we regulate our approbation and disapprobation.
Austin defined law by saying that it is the “command of the sovereign”. He

expounds on this further by identifying the elements of the definition and
distinguishing law from other concepts that are similar:
“Commands” involve an expressed wish that something be done, and “an

evil” to be imposed if that wish is not complied with.
Rules are general commands (applying generally to a class), as contrasted

with specific or individual commands (“drink wine today” or “John Major must
drink wine”).
Positive law consists of those commands laid down by a sovereign (or its
agents), to be contrasted to other law-givers, like God’s general commands,
and the general commands of an employer to an employee.
The “sovereign” is defined as a person (or determinate body of persons) who

habitual obedience from the bulk of the population, but who does not
habitually obey any other (earthly) person or institution. Austin thought that all
independent political societies, by their nature, have a sovereign.
Positive law should also be contrasted with “laws by a close analogy” (which
includes positive morality, laws of honor, international law, customary law,
and constitutional law) and “laws by remote analogy” (e.g., the laws of
physics).
As per Austin, you ought to follow the law, but if you happen to break the law,
you will be punished accordingly. For example, when a law on using
pedestrian lanes is passed, this should be followed all the time. Anyone who
violates the law will be punished, regardless of the reason for not doing so.
JD-1C-2023-0803
b. When Hans Kelsen started his career as a legal theorist at the beginning of the
20th century, he claimed that the legal philosophies at the time were hopelessly
tainted with political ideology and he proved that reductionist efforts to reduce law
to natural or social sciences were defective. He proposed a “pure” philosophy of
law that avoided any reductionism. To him, law belongs to the human sciences
rather than scientific sciences. He suggested the pure theory of law which is so
named because it exclusively describes the law and strives to exclude anything
that is not precisely legal.
According to Kelsen, law is a normative science and legal norms can be

separated from scientific norms. He described “Science” as a form of knowledge
organized around logical principles while a “Norm” is a rule that prescribes a
specific behavior. He also said that a moral standard just states what a person
should or should not do, but legal norm states that if a person violates the norm,
he would be penalized by the state.
Kelsen, a fierce opponent of natural-law theories, identified the central problem of

the philosophy of law as how to explain the normative force of law—i.e., law’s
claim to rightfully tell people what they ought to do (such that, for example, they
have an obligation of obedience to the law). (Kelsen also thought that law’s
commands are directed most fundamentally at officials of the legal system, such
as judges, telling them what sanctions to apply to citizens on the basis of the
latter’s conduct.) He rejected the idea that law’s normative force could derive
from its moral status: like all theorists in the legal-positivist tradition, he
acknowledged that laws could fail to be morally justified. But how then to explain
the difference between, for example, threats of brute force (“Hand over the
money, or I will shoot you”) and legal demands?
When a judge hears a case and decides for the plaintiff, ordering the defendant
to pay monetary damages, the judge’s authority to do so derives from rules of the
legal system that authorize the judge to render such decisions, subject to various
procedural and substantive constraints enacted by a legislature. But what gives
JD-1C-2023-0803
those rules their authority? Perhaps it is the constitution, the foundational

document of a legal system, which establishes a legislature entitled to enact
procedural and substantive rules governing court decisions and specifies who
can exercise the power of a judge and under what circumstances. But then what
gives the constitution the right to do that? An infinite regress now looms if one
posits some further authority-granting source.
c. Jeremy Bentham is regarded as the greatest figure in the history of British Legal
positivism. Bentham’s definition of law can be given as the will of the sovereign.
Bentham clearly states that law, which is the will of the sovereign, regulates the
conduct of the people to which it applies. Therefore, the law is what is laid down
by the sovereign. The people who are subject to the law have to regulate their
conduct in accordance with this will of the sovereign. Moreover, Bentham says
that the law does not have to be in consonance with the principles of ethics.
Therefore, law is whatever is laid down by the sovereign.
According to Bentham, a sovereign is the highest superior body which does not
owe any obedience to any other body. It is the sovereign which claims habitual
obedience from the people living in a politically organized group. Therefore, the
sovereign does not owe any allegiance to any other body or group. It is the will of
this sovereign body which is known as law.
Bentham, however, states that the power of the sovereign is not absolute. The
power of the sovereign can be limited as well as divided. The sovereign can be
by his own will and limit his own powers by entering into agreements with certain
external agencies which would put restriction on the power of the sovereign.
In Bentham’s view, rewards should be given to the people who follow the law
while punishments should be inflicted upon those who break the law. This was to
encourage people to be law abiding and moreover discourage them to break the
law.

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Enila, Shiela Mae B.

POSITIVIST SCHOOL IN PHILOSOPHY OF LAW

1. Positivist School in Philosophy of law is regarded as the most influential school of

2. Law and jurisprudence in perspective of Austin, Kelsen and Bentham

assumed standard, is a different enquiry. A law, which actually exists, is a

Austin defined law by saying that it is the “command of the sovereign”. He

“Commands” involve an expressed wish that something be done, and “an

Rules are general commands (applying generally to a class), as contrasted

The “sovereign” is defined as a person (or determinate body of persons) who

According to Kelsen, law is a normative science and legal norms can be

Kelsen, a fierce opponent of natural-law theories, identified the central problem of

those rules their authority? Perhaps it is the constitution, the foundational

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