"Legal Positivism is a jurisprudential approach to interpret law in positive terms and which is

divorced from ethical, moral concern." In light of the above sentence, discuss the evolution
and challenges of legal positivism in jurisprudence.

Understanding Legal Positivism in Simple Terms

Legal positivism is a theory in law that says we should look at

the law as it is written and made by humans, without
worrying about whether it is morally right or wrong.
According to this approach, laws are simply rules that are
made by authorities (like governments or courts), and they
should be followed because they are legally valid, not
because they are moral or ethical.

Think of it this way: legal positivism says the law is like traffic
rules. You follow traffic lights not because they are morally
good, but because they are the rules that keep traffic running
smoothly. Similarly, legal positivism believes we should
follow laws simply because they are laws, not because they
match what we think is right or wrong.

How Legal Positivism Has Evolved Over Time

1. Thomas Hobbes: In the 1600s, Hobbes said that laws come

from the authority of a ruler or government, and people
should follow these laws to keep society peaceful. He
believed law and morality were separate, and law comes from
human agreements, not from moral ideas.

2. Jeremy Bentham: Bentham agreed with Hobbes and took it

further. He said we should study laws based on what they
actually say, not based on moral or ethical values. Bentham
believed laws should be made to make society as happy and
useful as possible, but they are separate from personal ideas
of right and wrong.

3. John Austin: Austin built on Bentham’s ideas by saying

laws are like commands given by a ruler. They are backed by
punishments if people don’t follow them. He made a clear
distinction between "positive law" (which is man-made law)
and morality (what people think is right or wrong). For him,
laws don’t need to be moral; they just need to be followed
because they are made by those in power.

4. H.L.A. Hart: Hart was a legal thinker in the 1900s who

modified Austin’s ideas. He said that law is not just about
commands from a ruler, but also about social rules and
practices that people follow. Hart introduced the idea that
laws are made up of two kinds of rules: primary rules (rules
people must follow, like don’t steal) and secondary rules
(rules that tell us how laws are made and how they can be
changed). He believed that law and morality are different but
can overlap.

Challenges to Legal Positivism

Legal positivism has had a lot of influence in the world of law,

but it has faced some big challenges.

1. Can Law Really Ignore Morality?: One of the biggest

questions raised is whether law can truly be separate from
morality. Supporters of natural law theory believe that laws
must be based on moral principles, like justice and fairness.
They argue that if a law is unjust or immoral, it shouldn’t be
followed.

2. The Example of Nazi Germany: Legal positivism was

criticized after World War II when people looked at how Nazi
laws were followed in Germany. Even though these laws were
legal, they were extremely immoral (like the laws that
allowed persecution of Jewish people). Critics said that legal
positivism could allow terrible laws to be obeyed just
because they are “legal,” even if they are clearly wrong.

3. The Debate with Ronald Dworkin: Another famous legal

thinker, Ronald Dworkin, argued against legal positivism. He
said that judges can’t always decide cases just by looking at
the rules. Sometimes, they have to use moral principles to
make fair decisions. Dworkin believed that legal positivism
was too rigid and ignored the role of moral values in legal
decisions.

4. Legal Realism: This movement said that laws are not just
neutral rules written down in books. Instead, how judges
apply laws can depend on their personal views, politics, or
social circumstances. This means law isn’t purely objective,
as legal positivism suggests. Realists believe that law is
shaped by the real world, not just by written rules.

Why Legal Positivism is Still Important

Despite these challenges, legal positivism is still widely used
today because it helps separate legal questions from moral
debates. It makes law easier to understand and apply
because it focuses on the law as it is written, not on personal
beliefs about what is right or wrong.

For example, in many countries, judges use legal positivism to

interpret laws based on what the legislature intended when
they passed the law, rather than what the judge personally
thinks is the right or moral decision. This helps create
consistency and predictability in how laws are applied.

At the same time, many modern debates—especially about

human rights—raise questions about how far legal positivism
can go. People ask whether laws should be changed if they
don’t align with moral or ethical standards, such as fairness
and justice.

In short, legal positivism has shaped our understanding of

the law as a system of rules created by humans, but it
continues to face challenges about whether it can ignore
moral considerations.

"Law must be pure, logically self-supporting,And not dependent upon extra-legal values". In
light of the sentence above, discuss the various features of the pure theory of law.
The Pure Theory of Law, developed by Austrian jurist Hans
Kelsen, emphasizes that law must be understood as an
independent system, free from external influences such as
morality, politics, or other social sciences. According to Kelsen,
law should be "pure" in the sense that it is a self-contained
system of rules and norms, analyzed without mixing it with non-
legal elements like ethics or religion.

Here are the key features of the Pure Theory of Law:

1. Law as a Normative System

Kelsen viewed law as a system of norms (rules) that regulate

behavior. These norms are "ought" statements, meaning they
prescribe what people ought to do. For example, a law may say,
"You ought not to steal."

The legal system consists of a hierarchy of norms, with each

lower norm derived from a higher one, ultimately leading to the
Grundnorm (basic norm), which is assumed as the foundation of
the legal system.

2. Separation of Law from Morality

One of the key ideas in the Pure Theory is the strict separation of
law and morality. Kelsen believed that law should be studied as a
science, and that moral, ethical, or political considerations
should not influence the understanding or application of legal
rules.

According to Kelsen, a law could be "immoral" or "unjust," but as

long as it follows the rules of the legal system, it is still a valid
law. For example, even if a law seems unfair, it is still law if it was
created following the correct legal procedures.

3. The Hierarchical Structure of Law

Kelsen proposed that legal systems are organized in a hierarchy,

with lower-level norms being created according to higher-level
norms. At the top of this hierarchy is the Grundnorm (basic
norm), which is the foundational rule that gives legitimacy to the
entire legal system.

Every legal norm derives its validity from the norm above it, and
the Grundnorm serves as the ultimate source of authority, even
though it is an assumption and not formally established by any
law.
4. Law and State are Identical

Kelsen argued that there is no distinction between the state and

the law. He believed that the state exists only as a
personification of the legal order. In other words, the state's
authority and power come from the legal system, and the state’s
actions are nothing more than the application of legal norms.

Thus, instead of thinking of the state as something separate from

law, Kelsen said that the state is simply a structure created by
the legal system.

5. Dynamic System of Law

The Pure Theory also suggests that the legal system is dynamic,
meaning that new laws are constantly created within the
framework of existing ones. Laws are not static but can be
updated or changed through established legal processes.

Legal systems provide mechanisms for creating new norms, for

example, through legislative bodies or courts.
6. Law as Coercive Orders

According to Kelsen, one of the defining features of law is that it

involves sanctions or coercion. Laws are not just suggestions;
they carry consequences for non-compliance. For example, if a
person breaks the law, they might face fines, imprisonment, or
other penalties.

Kelsen saw this coercive aspect as one of the factors that

separate legal norms from other types of social norms (like moral
or ethical rules), which don't carry formal sanctions.

7. Pure Methodology

Kelsen advocated for a "pure" legal science, meaning that law

should be studied in isolation from other disciplines. He believed
that mixing law with sociology, politics, or morality would
compromise its scientific nature.

His method involved focusing solely on legal norms, analyzing

their structure, and understanding how they function within the
legal system without reference to external factors like justice or
social welfare.
8. Rejection of Natural Law

Kelsen's Pure Theory rejects natural law theory, which posits that
there are universal moral principles that should guide human
law. Kelsen argued that natural law is not a proper basis for legal
systems because it depends on subjective moral beliefs that can
differ from person to person.

Instead, Kelsen insisted that legal validity comes from the proper
creation and application of norms within the legal system, not
from whether those laws are morally "good."

9. Grundnorm (Basic Norm)

The concept of the Grundnorm is central to Kelsen’s theory. This

basic norm is assumed as the foundation of a legal system and
cannot be legally challenged because it is not derived from any
higher norm.

For example, in a country’s legal system, the Grundnorm might

be the constitution, which serves as the ultimate legal authority.
All other laws and rules must be consistent with the Grundnorm
to be valid.
10. Objectivity of Law

Kelsen emphasized the importance of studying law in an

objective manner, without allowing personal biases or subjective
views to interfere with legal analysis. Legal scientists, he argued,
should focus only on the norms themselves and their
relationships within the system.

This objectivity aligns with his idea of law as a science—laws

should be understood through logic and formal reasoning, not
through emotions or personal values.

Conclusion

In summary, Hans Kelsen's Pure Theory of Law provides a

framework for understanding law as a logical and self-contained
system of norms, independent of external values like morality,
politics, or religion. By emphasizing the hierarchical nature of
legal norms, the separation of law and morality, and the concept
of law as a coercive system, Kelsen sought to create a "pure"
science of law that operates on its own logic and internal rules.
However, while the theory has been influential, it has also faced
criticism for its strict detachment of law from moral co
nsiderations, especially in the face of unjust or oppressive legal
systems.

Let's explore each of these topics within the framework of jurisprudence,

which is the study of legal theory and philosophy. Jurisprudence looks at
the nature of law, its relationship with society, and its role in maintaining
justice.

a) Law and Morality

Law and morality are two distinct but often interconnected concepts in
jurisprudence. Law consists of rules created and enforced by the state,
while morality is based on social, ethical, and cultural standards that
define what is right or wrong.

Theories of Law and Morality:

1. Legal Positivism: This theory, supported by thinkers like John Austin

and H.L.A. Hart, argues that law and morality are separate. A law is valid if
it is created by a legitimate authority, regardless of its moral content.
According to legal positivism, even an unjust law is still law as long as it
meets the procedural requirements.
2. Natural Law Theory: Opposing legal positivism, natural law theory
claims that law and morality are inherently linked. Thinkers like Thomas
Aquinas and Lon Fuller argued that a law must be morally just to be valid.
Natural law proponents believe that certain universal moral principles
should guide legal systems.

3. Legal Realism: Legal realists argue that law is influenced by human

behavior, social factors, and moral beliefs, so in practice, law and morality
often overlap.

In Practice: While law often reflects societal moral values (e.g., laws
against murder, theft), there are situations where legal and moral
perspectives diverge, such as laws that may be legal but are seen as
unjust or immoral (e.g., segregation laws in the past).

b) Law and Religion

Law and religion have been closely related throughout history, with many
legal systems having religious origins. However, in modern jurisprudence,
the separation between the two is often emphasized, particularly in
secular states.
Religious Law:

Some legal systems are based directly on religious texts. For example,
Sharia law in Islam derives from the Quran, and Halakha in Judaism
comes from the Torah. These religious legal systems govern both the
personal conduct of believers and social matters.

Canon Law in the Christian context governs church operations and

religious practices.

Secular Law: In most contemporary societies, there is a clear separation

between law and religion (e.g., in the U.S. Constitution, which promotes
the idea of separation between church and state). The legal system is
based on secular values, and religious beliefs cannot directly determine
the content of state laws.

Influence of Religion on Law: Even in secular legal systems, religious

beliefs can influence the development of laws, especially regarding
family matters (e.g., divorce, inheritance) or moral issues (e.g., laws on
abortion or same-sex marriage).

Debates in Jurisprudence: Jurisprudential debates arise over how much

influence religion should have on law. Religious law theorists argue that
religious principles should guide lawmaking, while secularists emphasize
the need for law to be neutral and free from religious influence to ensure
equality and freedom of belief.
c) Law and Social Change

Law and social change are deeply interconnected, with the law both
shaping and being shaped by societal developments. Legal systems often
act as tools for social transformation, either by reinforcing existing social
norms or by promoting reforms.

Law as a Tool for Social Change:

Social Movements: Throughout history, legal changes have been driven by

social movements. For example, civil rights movements in the U.S. led to
significant legal changes, including the Civil Rights Act of 1964, which
outlawed racial discrimination.

Women's Rights and Gender Equality: Legal reforms addressing gender

equality and women's rights, such as the right to vote, equal pay, and anti-
discrimination laws, have reflected broader changes in social attitudes.

Sociological Jurisprudence: This school of thought, pioneered by Roscoe

Pound, emphasizes that law should be understood in its social context.
Pound argued that law is a tool for engineering social change and should
evolve in response to societal needs.

Legal Realism: Legal realism also emphasizes that law is influenced by

social, economic, and political factors. Realists argue that judges’
decisions are not solely based on legal rules but are also shaped by the
social environment.
Challenges in Law and Social Change: While law can drive social change, it
can also lag behind societal values. For example, the legalization of same-
sex marriage in many countries followed years of advocacy and shifting
social attitudes toward LGBTQ+ rights.

d) Principles of Liability

Liability refers to legal responsibility for one’s actions or omissions, and it

can take different forms. Understanding liability is essential in
determining how the law holds individuals or entities accountable for
harm or wrongdoing.

1. Liability and Negligence:

Negligence is a key concept in tort law, which deals with civil wrongs. It
refers to a situation where someone fails to take reasonable care, and
that failure causes harm to another person.

To establish negligence, certain elements must be proven:

Duty of care: The defendant had a legal duty to act in a certain way.

Breach of duty: The defendant breached that duty by failing to meet the
expected standard of care.
Causation: The breach of duty caused harm or injury to the plaintiff.

Damages: The plaintiff suffered actual harm or loss as a result of the

defendant's negligence.

Negligence is common in cases like car accidents, medical malpractice, or

product liability.

2. Absolute Liability:

Absolute liability is a stricter form of liability where the defendant is held

responsible for certain actions, regardless of fault or negligence. In these
cases, the plaintiff does not need to prove that the defendant was
negligent or careless.

Absolute liability often applies in cases involving dangerous or hazardous

activities (e.g., using explosives, keeping dangerous animals). In such
cases, the person or entity engaging in the activity is automatically liable
if harm occurs.

In India, absolute liability gained prominence after the Bhopal Gas

Tragedy in 1984, where the Supreme Court held that industries engaged
in hazardous activities are strictly liable for harm caused, regardless of
fault.

3. Strict Liability:

Strict liability is similar to absolute liability but with certain defenses

available. In strict liability, a person or entity can be held liable even if
they took all reasonable precautions to prevent harm.

Strict liability is commonly applied in cases involving defective products,

where manufacturers or sellers can be held liable for harm caused by
their products, regardless of whether they were negligent in making them.

4. Immunity:

Immunity refers to certain individuals or entities being exempt from

liability under specific circumstances. For example:

Sovereign immunity protects governments from being sued without their

consent.
Diplomatic immunity shields diplomats from legal liability in foreign
countries.

Judicial immunity protects judges from being held liable for decisions
made in the course of their duties.

Immunity is usually granted to protect individuals or institutions that

play vital roles in society, ensuring they can perform their duties without
fear of legal consequences.

Conclusion

Jurisprudence helps us understand the relationships between law and

morality, religion, social change, and the principles of liability. Each of
these topics reveals the complexity of legal theory and how law interacts
with broader societal values and challenges. While law can operate
independently of morality or religion, it is often influenced by them, and
its role in driving or responding to social change is a crucial area of study
within legal theory. Similarly, Understanding liability helps ensure that
individuals and entities are held accountable in a fair and just manner.