Legal/Analytical/Logical Positivism- course outline/syllabus

 What is Positivism
 Bentham
 Austin
 HLA Hart
 Fuller
 Kelsen
 Raz

What is Positivism?

 Term coined by Comte

 Positive law does not deal with the vague or abstract notions of natural law
 Demarcates the boundaries of law, analyses and systematises law
 Advocated changes in law based on changed social needs and no other irrelevant
considerations
 More emphasis on the analysis of positive law and so were called the positivists or the
analysts
 Austin is considered the father, but he owed lots to Bentham (it is said that Austin was
nothing more than a paraphrasing of Bentham)
 Started in the early 19th century
 Aim was to reason and find principles of universal validity, based on which actual
laws could be explained or condemned
 Multiple meanings of positivism
1. Laws are commands –British positivism- Austin and Bentham
2. Analysis of legal concepts distinctly from the historical and sociological
schools
3. Decisions can be deduced logically from pre-determined rules without using
social aims, policy or morality
4. Moral judgements cannot be defended by arguments, reason or logic
5. law as it is laid down (law as is- positum) should be separate from law as it
ought to be
 positivism is based on stable social conditions, and was a intellectual reaction to
naturalism
 the admit that judges make the law, they merely feel that the personal moral
judgements of judges impact whether a law will be adopted or not. A law is a law
only if it has gone through the procedural regulations of enactment and is embodied in
a precedent or a statute, regardless whether it is unjust or not
 separating what the law is and ought to be helps in creating an object standard by
which law can be criticised. Introduction of morality creates difficulties. Not all that is
moral is law, and since law is narrower than morality, positivists believe that this
boundary should be as clear as possible.

Analytical School
 English school. Founded by Austin.
 Assumes the existence of a developed legal systems and then analysis the basic legal
principles, to classify them and show their relations to one another. Systematic
analysis of legal concepts
 Tries to understand the structure of the legal system and does not focus on justice
 Aim of this school is to define terms and concepts, explain their connotations and
show relation to each other.
 Components- According to Salmond
1. Analysis of concept of law
2. Relation between civil law and other forms of law
3. Analysis of the ideas of law that make up the whole complex system
4. Sovereignty and admin of justice
5. Account of legal sources from which we derive law
6. Theory of legislation
7. General theory of the creation and transfer of rights
8. Legal liability in civil and criminal cases etc.
 Law is the command of the sovereign, legislation is the source of law
 All norms and values are excluded from this analysis
 The authority of the state is not questioned
 Definition given by Stone. "Analytical juris as the study of logical relations within the
law serves, therefore, useful purpose. Its main tasks are to deter and define terms
actually employed, to state axioms employed, to determine if legal propositions
derived from these follow logic, and to inquire into which definitions and axioms lend
maximum self-consistency to the body of legal propositions."

Bentham (1742-1832)

 Even though Austin is the "Father of English juris", Bentham deserved this title.
 Authored the following books:
o An introduction to the principles and morals of legislation
o Of laws in general
o The limits of jurisprudence defined
 Austin's work is derived greatly from him
 Bentham believed that no reform of substantive law could be brought about without
reform in its form and structure.
 Advocated the imperative theory of law- "The imperative theory of law states that law
consists of the general commands that are issued by a country or other political
community to its subjects. It includes general commands enforced by courts with the
sanction of physical force. The followers of imperative theory believe that if there are
rules predating or independent of the country, then such rules shall closely resemble
law or in some instances even substitute it, but they are not law."
 The Sovereign envisaged by Bentham is neither limitless nor indivisible (compare
with Austin)
o Definition: "any person or assemblage of person to whose will a political
community are (no matter on what account) supposed to be in a disposition to
pay obedience and that in preference to the will of any other person."
o Such power is indefinite unless limited by express conventions or
religious/political motivations.
o May consist of more than one body, obeyed in different respects.
o Obedience may be divided and partial
o There is no necessity for an undivided, limitless sovereign
o Legal restrictions may be imposed on the power of the sovereign
o Ordinary class of laws- prescribe to people what they must do
o Transcendental class of laws- prescribe to the sovereign what he shall do
o Sovereign may bind its successors into adopting certain laws which it may not
want to.
o Such enforcement may be through religious, moral or legal sanctions.
 Did not focus too much on sanctions. Felt that the command of the sovereign would
be law if backed only by religious or moral sanctions. Mentions "alluring motives" or
the concepts of rewards.
 Different from Austin in defining law- "widely similar" (really guys. That is what the
book says. I will give a better difference in the Austin part. Just remember it can also
be featured here.)
 focused on sovereign and obedience.
 He also was in favour of a codified system of laws (keep in mind the background of
un-codified, chaotic English laws)
 Definition of law:
o Assemblage of signs, declarative of a volition, conceived or adopted by a
sovereign in a state, concerning the conduct to be observed in a certain case by
a certain person or class of persons who in the case in question are or are
supposed to be subject to his power.
o Imperative concept of law. logic of the imperatives:
1. no law can be neither imperative nor permissive
2. all laws prohibit or command or permit some conduct
o "set of objectives so allied that there would be continual occasion to apply the
same propositions."
o One should consider a law in these respects: (nature of law)
1. Source – will of the sovereign. Sovereign may personally issue laws,
adopt those issued by prior sovereigns or subordinate authorities or
issue laws to be adopted by subordinate authorities.
2. Subjects –territoriality of law.
3. Objects
4. Extent
5. Aspects
6. Force
7. Remedial appendages- subsidiary laws provide sanctions. Other
subsidiary laws in the form of remedial appendages exist to guide
judges
8. Expression – if expression is complete, a literal interpretation should
be adopted. If expression is incomplete, judges may interpret. Sought
to minimise judicial interpretation.
o Law is divided into
1. Directive- sovereign's will towards an act/situation.
2. Sanctional
3. Incitative
o Force of law:- law is based on motivations for obedience
o Wish of the sanction is law as long as it has a sanction.
o Physical, political, religious and moral sanctions may be used.
o Laws must be "integral and united"
o Each act is a subject of a different law
o Criminal code- offences
o Civil laws- expository and qualificatory matters
o Advocated that these branches be separate.
o "utilitarian individualism" is the name of his theory. Criticised methods of
making laws. Fn of law is to emancipate the individual. End of legislation is
greatest happiness of greatest number.
o Utility is defined as the property of a thing to eliminate/prevent evil and
produce some good. Man has 2 (in sir's words sovereign) masters- pleasure
and pain. Only object of man is to seek pleasure and shun pain. So purpose of
law is the same.
 Deontic logic- shows relationships between command, prohibition and permission.
(Deontic logic itself is a vast topic falling mostly in the logic sphere, which I don't
think is essential. Just know he evolved this thing)
 Criticisms of this theory
o Does not look at man in all his complexity
o No balance between individuals and community interests.
 Coined term international law and founding father of international law principles.

John Austin (1790-1859)

 Married Sarah Taylor, neighbours with Bentham and Mill.

 The principles of jurisprudence determined is the book he wrote
 Called the father of English Juris
 Founder of analytical school
 Also called the imperative method- analytical school is a misnomer implying that only
this school analysis whereas it is the underlying aspect of juris
 Narrowed the boundaries of juris
 His most important legal theory was the substitution of the command of the sovereign
for any ideal of justice in the definition of law
 Defined law as "rule laid down for guidance of an intelligent being by an intelligent
being having power over him."
 Law is divorced from justice and is not based on good or bad but is based on power of
a superior
 Laws can be divided into law of god and law of men (human laws)
 The law of god is the principle of utility
 Human laws are divided into laws so called (positive law) and laws improperly so
called

Laws so called Laws improperly so called

Laws set by political superiors to political Laws which are not set, either directly or
subordinates indirectly by a political sovereign
Or it is laws set by subjects, as private Eg-rules of clubs, fashion rules, laws of
persons in pursuance of the legal rights natural science, international law
granted to them- these have the indirect Called by Austin as "positive morality"
command of the sovereign. Every Also called laws by metaphor, which are
enforceable pvt right falls within this the uniform laws of nature
catagory
Eg-right of guardian over wards

laws of god
laws properly laws strictly so
so called called
laws of man
classification of laws not strictly
laws so called
laws by anlogy
laws improperly
so called
laws by
metaphor

 Positive law has 4 elements- command, sanction, duty and sovereignty

 Laws properly so called are species of commands
 Laws properly so called flow from a deretermined source
 Every sanction properly so called is an eventual evil attached to it
 Juris is concerned with laws so called without any regard to their goodness or badness
 Austin says law is the command of the sovereign backed by sanction
 Fear of sanction supplies the motive for obedience
 Criticism- a large part of legal system is laws that neither command nor forbid, but
empower citizens so as to achieve certain results (eg voting rights)
The term command implies a personal commander, but in modern legal systems it is
impossible to identify a commander in this sense
Command also implies one command to one person on one occasion, but modern laws
exist long after the death of the actual law giver
If the laws of previous sovereigns only exist so long as the current sovereign allows,
and anything that a sovereign permits, he tacitly commands is an argument against
this, it must be noted that no all laws may be repealed (eg- basic structure of consti)
Bulk of English law is created not by legislation, but by courts. Austin argues that
judges are delegates of parliament and that law making powers have been conferred
upon them, but this is wrong
Laws which are not commands may also include declaratory statements, repealing
statutes etc. Austin treated these as exceptions.
Even actual commands of sovereign only acquire the status of law after procedures
(such as parliamentary procedures to pass a bill) are followed. If these procedures are
laws, they are not a command and if they are not laws, they are no different from
etiquette.
Law is not an arbitrary command but an organic growth
 Sovereignty has not stayed in the same shape it was envisaged in
 Other motives also exist for one to obey the law- indolene, deference, sympathy, fear
and reason. The power of the state is ratio ultimata- force is the last resort to gain
obedience
 International law was under moral laws according to Austin because it lacked a
sanction.
 Gunman theory-  John Austin's "Command Theory": a jurisprudential concept that
holds that law is command backed by threat and is meant to be ubiquitous in its
application. The way Hart explains it is- a gunman in a bank and tries to establish the
differences between the gunman's orders and those made by law. (For instance, the
gunman forces us to obey but we may not feel inclined to obey him. Presumably,
obedience to the law comes with a different feeling.) Austin’s command-duty-
sanction thesis fails to explain why, if a gunman threatens X with ‘Your money or
your life’, X may be obliged to hand over his purse, but has no obligation to do so
 Austin believed that every legal system had to have a sovereign who creates the law
(origin) while remaining unaffected by it (range), such as the bank scene's gunman,
who is the only source of commands and who is not subject to other's commands. Hart
argues that this is an inaccurate description of law, noting that laws may have several
sources and legislators are very often subject to the laws they create.

HLA Hart (1909-1992)

 Soft positivist
 Human conduct not optional
 Rules may be divided as to internal aspect and external aspect
 Positivism is the separation of laws and morals
 Laws are commands of human beings
 He does not contest the truistic claim that the development of law, at all times and
places, has been profoundly influenced by conventional (and, for that matter,
unconventional) morals.
 does not imply that a legal system must exhibit some specific conformity with
morality or justice.
 basic idea that Hart defines as the "teleological view of nature"; namely, that
everything in nature, including man, is moving towards a teleos, a specific end.
 The idea of what forms teleos for mankind has been violently disputed and debated
over the centuries. Taking on from Hobbes and Hume, Hart chooses what he feels is
the lowest common denominator, the basic indisputable minimum Survival
 all men wish, above all else, to continue living. while specifically discussing law, we
are discussing how best to govern the conduct of people who are living together and
surviaval is the first step
 Laws must contain certain content to make sure that that end is realised. This is the
minimum content of natural law. 
 In his book The Concept of Law, Hart has analyzed the relation between law,
coercion, and morality.
 Hart says that there is no rationally necessary correlation between law and coercion or
between law and morality. According to him, classifying all laws as coercive orders
or as moral commands is oversimplifying the relation between law, coercion, and
morality.
 To conceptualize all laws as coercive orders or as moral commands is to impose a
deceptive appearance of uniformity on different kinds of laws and on different kinds
of social functions which laws may perform.
 Hart disapproves of the concept of law which was formulated by John Austin in The
Province of Jurisprudence Determined (1832). <essentially all the criticisms of
Austin previously mentioned>
 For Hart, ‘law’ is equivalent to ‘legal system’. According to him, legal system (law) is
a system of rules comprising ‘primary rules’ and ‘secondary rules’.
 Primary rules of obligation’ as rules that impose duties or obligations on individuals,
such as the rules of the criminal law or the law of tort. They are binding because of
practices of acceptance which people are required to do or to abstain from certain
actions.
 Secondary rules are those which confer power, public or private, such as the law that
facilitate the making of contracts, wills, trusts, marriages, etc or which lay down rules
governing the composition of powers of courts, legislatures and other officials bodies.
Primary rules are concerned with actions (that individuals must do or must not do)
involving physical movement or change whereas the secondary rules provide for
operations which lead not merely to physical movement or change, but to the creation
or variation of duties or obligations.
 Essentially, defined laws with respect to their source
 Law is defined by investigating its formal features
 Law is an union of primary and secondary rules
 Finds and remedies defects in pre-legal systems
 Internal laws are not a system of rules but a set of rules since there are no secondary
rules
 Secondary rules exist to remove primary rules' defects
 Normative vocabulary- normative vocabulary used to draw attention to a standard of
behavior and criticize/punish deviations from it. – "ought, obligation and right."

Lon Fuller

 The case of the speluncean explorers

 The case involves five explorers who are caved in following a landslide. They learn
via intermittent radio contact that, without food, they are likely to starve to death
before they can be rescued. They decide that someone should be killed and eaten so
that the others may survive. They decide who should be killed by throwing a pair of
dice. The survivors state that person 5 had originally come up with the ideas of
cannibalism and choosing the victim through random chance, offering a pair of dice in
his possession.
 Before the dice are cast, 5 allegedly expresses a wish to withdraw from the
arrangement, preferring to wait another week "before embracing an expedient so
frightful and odious". The others refuse to accept his change of mind, and cast the
dice on his behalf. The survivors claim that 5 conceded that the dice were thrown
fairly. He is subsequently killed and eaten.
 After the four survivors are rescued, they are charged and found guilty of
the murder of the fifth explorer. If their appeal to the Supreme Court of Newgarth
fails, they face a mandatory death sentence. Although the wording of the statute is
clear and unambiguous, there is intense public pressure for the men to avoid facing
the death penalty.
 5 judicial opinions:

Judge Key Points Decision

 Statute is unambiguous and must be applied by

judiciary notwithstanding personal views Affirms
Chief Justice  Clemency is a matter for the executive, not the convictions but
Truepenny judiciary recommends
 Court should joint petition to Chief Executive for clemency
clemency
Justice  Defendants were in a "state of nature" so Sets aside
Foster Newgarth's normal laws did not apply to them; the convictions
laws of nature would allow them to agree to
sacrifice one's life to save the other four
 If the laws of Newgarth do apply, then a
purposive approach must be taken to the statute.
Judges can find an exception to the law by
implication, as the Courts had earlier done with self-
defence.
 Principal purpose of the criminal law –
deterrence – would not be served by convicting
the defendants.
 Criticises Foster J's approach
 The natural law under the posited "state
of nature" prioritises freedom of contract above
the right to life Withdraws from
Justice
 Purposive approach to statutory case and makes no
Tatting
interpretation is difficult when there are multiple decision
purposes (here, retribution and rehabilitation)
 Cannot decide case due to competing legal
rationales and emotions
 Criticises Chief Justice's proposed appeal to
Executive for clemency given need to
respect separation of powers; should only make Affirms
Justice Keen
appeal in capacity as private citizens convictions
 Moral considerations are irrelevant in applying
the statute
 Court should take account of public opinion and
"common sense"
 Aware that 90% of the public want the men to
Justice Sets aside
face a lesser punishment or be released
Handy convictions
 Has heard rumours that the Chief Executive will
not commute the sentence despite strong public
opinion

Hans Kelsen (1881-1973)

 Hans Kelsen was an Austrian legal theorist

 Book- The Pure Theory of Law in 1934
 separates jurisprudence from other disciplines like ethics, politics and psychology.
 It refers to a pure legal science
 Law is a set of norms. A norm is an act by which certain behaviour is commanded,
permitted or authorised. Based on ought (discussed later here)
 Law functions based on coercion and officials of the state.
 German word- Wissenschaft, which is normally translated as ‘knowledge’ or ‘study'
is the word used to refer to this pure science.
 Descriptive and Normative Statements:-

Descriptive Statements’ (descriptions)- A statement that something is.”

‘Normative Statements’ (norms), which deal with preference, “A statement that

something ought to be.”

 legal laws as a subset of normative statements, and scientific laws as a subset of
descriptive statements.
 Kelsen introduces a third category that sits above normative statements. This category
contains descriptive statements about norms, as opposed to about reality. The work of
a legal academic contains such descriptive statements.
 Under Kelsen’s theory, no norm is objectively valid. If we assume one valid norm
then we can derive the validity of others, but any such derivation is based on this first
presupposed norm.
 Law as a System of Sanction-Prescribing Norms
 Kelsen’s definition of a legal system, is a system of norms that prescribe sanctions. 
 A ‘delict’ is an action that is prohibited by the law. An action is a delict if there is a
sanction in place to discourage people from committing that action. Not all conditions
for sanctions are delicts.
 Dependent Norms- An independent legal norm is a norm that prescribes a sanction,
e.g. ‘This man should be imprisoned.’ A dependent legal norm is a legal norm that
does not itself prescribe a sanction, but is connected to a legal norm that does. For
example, the norm ‘This judge is authorised to hear cases’ is valid only insofar as that
judge can prescribe/dismiss sanctions, or make decisions that ultimately lead to
sanctions
 If a norm is not connected to a sanction-prescribing norm, then it is a moral or social
norm posited by a legal organ who is not exercising their legal capacity.
 The validity of norms is determined by deriving its source from a series of higher
norms. He gave the example of traffic laws in class, and this is tax, maybe use both to
impress him.

Obey the constitution

↓
Obey laws passed by the legislature
↓
Obey tax
↓
Obey the tax office and its decisions
↓
Obey the taxman’s authority
↓
Give the taxman your money

 Valid norms give rise to valid norms and all valid norms are derived from valid
norms. The course of all this validity, the greatest in the hierarchy of norms is The
Grundnorm. If a norm is valid, any norm derived from that norm by imputation will
also be valid. This implies that no norm is objectively valid.
 Source of Validity – The Grundnorm- the basic norm
The Grundnorm is not a legal norm, it is instead a norm that is assumed to be valid by
the legal scientist examining the legal system. A legal norm is then any norm derived
from this Grundnorm.
  A Grundnorm refers to a specific constitution or other source of law.
The norm must also be effective. Effectiveness means being obeyed most of the time
atleast. The choice of a grundnorm in a legal system is no arbitrary but based on what
gives validity to the actually effective legal system.
 How does one determine if the derived norm is legitimate/the legitimacy of the
derivation?
since there are no objective norms in the first place, there is no right or wrong way to
derive a norm. The validity of the norm is based on if the person who derived this
norm had the authority to do so.
 Criticism- Fuller says the Grundnorm is unreal.
Law must be related to life, not just logic. (OW Holmes life and law is experience)
He neglected justice, which is actually quite important.
Neglected natural law to the extent that his coercion is exaggerated.

Joseph Raz

 Israeli
 Positivist legal philosopher
 Social thesis separates law and morality
 Grundnorm derives its authority from presupposing based on faith
 Raz exposes some serious question about Kelsen in that in order for laws to be
efficacious in some way, people must be able to believe that obedience of laws is
morally required regardless of the content of law, and hence a connection between
morality and law does exist without any specific reference to the content of laws per
se.
 He did not do much of this in class and I have no other sources for this. I'm sorry