CLASSICAL AND MODERN LEGAL POSITIVISM

Revision checklist
You should know the following essential point:
1. Classical and modern legal positivism
2. Legal positivism as the ‘ruling theory of law’
3. The separability thesis – separating the ‘is’ and ‘ought’ of law: asking the moral question
4. Key classical legal positivists: Jeremy Bentham & John Austin
5. Key modern legal positivist: Hans Kelsen, HLA Hart and Joseph Raz
6. Ronald Dworkin’s anti-positivist theory
7. Hart v Dworkin debate: a critique of legal positivism
N/B Positivism refers to a system of philosophy that argues that our knowledge of matter is derived
only from what we have experience – knowledge is based on things that have been tested and
verified by the senses rather than the metaphysical speculation/idealism. It entails the study of
things as they are without regard to social, political and psychological background.
The primary idea of legal positivism lies in the derivation of ‘positum’ emphasizing that law is
something laid down or posited.
Separating the ‘is’ and the ‘ought’ of legal positivism
Legal positivism is built around the belief or the assumption of what the law ‘is’ is separate from
and must be kept separate from what the law ‘ought’ (should) be. The position can be summarized
in the words of John Austin:
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 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.
It is held by most classical legal positivists that the issues of legal validity are to be strictly
separated from questions of morality since it is claimed that there is no requirement that law satisfy
moral demands.
The validity of a legal norm is established on the basis of a given formal criteria and not its moral
correctness. There is no necessary connection between law and morals, or law as it is and law as
it ought to be. Thus the legal positivists’ approach to defining law excludes value judgments and
moral considerations.
Legal positivism as the ‘ruling theory of law’
Legal positivism is a philosophy of law that emphasizes the conventional nature of law—that
it is socially constructed. According to legal positivism, law is synonymous with positive norms,
that is, norms made by the legislator or considered as common law or case law.
In taking rights seriously Ronald Dworkin describes an ideal theory of law as a ‘complete theory’,
namely one which tells us both what the law is and what it ought to be. Dworkins further claims
that legal positivism as the prevailing or ‘ruling theory of law’ attends only to what the law is - by
adopting a descriptive and morally neutral hypothesis about the nature of law.
The dominant theory reject the conception of natural rights and any moral content/criteria in
determining the legality, legitimacy or legal norm.

CLASSICAL LEGAL POSITIVISM

Also called imperative positivism.
19th Century legal theorist, John Austin and Jeremy Bentham are commonly associated with the
development of early or classical legal positivism. Also in this category is Thomas Hobbes and
David Hume whose views are said to have influenced Austin and Bentham.
According to David Hume, laws are simply the expression of a changing pattern of social and
political interaction, properly explicated on the basis of scientific observation and analysis rather
than by an appeal to moral or theological consideration. Thus it is impossible to derive normative
claims (how the law ought to be) from descriptive claims (how the law is). This is one of the
fundamental tenets of legal positivism.
Thomas Hobbes in his 1651 seminal leviathan, identifies law with a ‘command’ defined as ‘where
a man says, “do this” or “do not do this”, without expecting other reason than the will of him that
says it. Like Hume, Hobbes considers law to be a matter of empirically discernible social fact
underpinned by the dictates of a coercive sovereign authority which commands our obedience-
without the necessity of moral evaluation.
Jeremy Bentham (1748-1832) perceived common law as arbitrary and based on unconnected
rules as well as being too susceptible to judicial caprice and creativity. He referred the court system
derisively as ‘Judge & Co.” His intention was to posit a more accessible and significantly man
made basis, far removed from the continental natural law and natural rights movement which
advocated for higher principals than social good. Bentham described natural rights as ‘imaginary’
(rhetorical nonsense or ‘nonsense on stilts’) as compared with the; real right’ by actual existing
legal system.
Bentham divided jurisprudence into Expository jurisprudence (a consideration of law as it ‘is’) and
Censorial jurisprudence (involves a consideration of what the law ought to be)
The ‘Command’ Theory of Law
Theory advanced by John Austin.
John Austin rejected the natural law thinking that a man made law is valid only if it does not
conflict with a higher law- religious or secular. For Austin, a law is a valid law if it is set by a
sovereign. It is valid if it exists, regardless of its moral content.
For Austin, the fact that the law, according to some higher principle, is not what it ought to be is
no reason for saying that it is not. He argued that a determination of what the law “is” must be
distinguished from a determination of what the law ‘ought to be’
According to Austin, positive law is law properly and strictly so called. It is a command of the
sovereign enforced by a sanction.
Sovereign
Austin says that a sovereign exist where the bulk of a political society are in the habit of obedience
to a determinate common superior, and the common superior is not habitually obedient to a
determinate human superior. He emphasizes certain aspects of this concept:
a) The common superior must be ‘determinate’- all persons who compose it are determined
and assignable
b) The society must be in ‘the habit of habitual obedience’- there is no sovereign if obedience
is rare or transient.
c) Habitual obedience must be rendered by generality or bulk of the members of a society.
d) The common determinate superior to whom the bulk of the society renders obedience must
not himself be habitually obedient to a determinate human superior.
e) The power of the sovereign is incapable of legal limitation. For Austin, ‘supreme power
limited by positive law is a flat contradiction in terms’
Command
Austin's particular theory of law is often called the “command theory of law” because the concept
of command lies at is core
Austin says, there are two branches off of the root concept of “expressions of desire:” requests and
commands. While they are grammatically similar, they are different because commands come with
sanctions. Laws will be one of the sub-branches of commands.
Commands, according to Austin, always involve three things:
1. a desire concerning someone’s behavior
2. an expression of that desire
3. a sanction, threatened harm for non-compliance

The first two elements are common between requests and commands while the last one
distinguishes commands from requests.
Sanctions
According to Austin, the fear of sanctions is what induces a man to obey the law. Sanctions are
negative consequences imposed on a person for breaking the law.

Criticism
In Chapter 3 and 4 of The concept of law, Prof. HLA hart raises the following attacks against the
command theory:

1. Law as we know them are not like orders backed by threats

He advance there four reasons why this is so.
a) The content of law is not like a series of orders backed by a threat. Hart concedes that some
laws, do resemble orders backed by threats e.g. criminal law. But there are many types of
law that do not resemble orders backed by threats e.g. the law on marriage. Such laws are
not comparable with orders backed by threats. They are better regarded as power-
conferring rules.
b) The range of application of law is not the same as the range of application of an order
backed by a threat. According to Austin the law maker is not himself bound by the
command he gives – the order is directed to others and not to himself. Hart concedes that
in some systems this may be true. But in many systems legal rules are binding on the body
that makes them.
c) The mode of origin of law is different from the mode of origin of an order backed by a
threat. Orders backed by threat originate from an act performed at a specific time. On the
other hand, not all laws originate from a specific source e.g. customary law.
d) He is unable to distinguish between naked power from institutions and rules accepted by
the community. He is unable to distinguish the orders of a terrorist from the legal system.

2. The notion of obedience is deficient

The concept of habitual obedience creates difficulty in explaining the continuity of law: for when
someone new takes over, that person has no history of being habitually obeyed. Again, this theory
is unable to explain the continuity of law when a new regime takes over. Obviously the new regime
is bound by the laws passed by the previous regime.

3. The notion of sovereign is deficient

The first problem with law being a “command by the sovereign”, is that there is no identifiable
commander in the modern state. It is hard to speak of there being a sovereign who is not subject
to legal restraint. Modern democracies are based on the idea of Separation of Powers, and authority
is spread over a large number of people. Therefore, this idea becomes irrelevant in a time where
monarchies and dictatorships are rare and fast disappearing.

The concept of sovereign is not applicable to international or constitutional law’

International law -Austin’s ideas are not applicable to International law because it has no
Sovereign. International law is based on the principles of International recognition, cooperation,
and diplomacy. There is no authority above the state. No international organization can act as a
world government and assume Sovereignty over all states. Therefore, Austin’s Imperative theory
does not square up with the existence of International Law.

Constitutional law- Modern democracies are found on a constitution, in which rests the source of
all the political powers of the state. Therefore, the true Sovereign in a democracy are the people,
whose rights the constitution upholds. State power is temporary, granted by and taken away by the
people and periodically changes hands. Therefore, the Sovereign is not the ruler, as Austin would
concur, but actually the subjects of that ruler in a democracy.
Also, the constitution is the source of the legal basis of a country, and all laws that are formulated
or put out in a state, are struck down if seen in contravention with the constitution.
Therefore, Austin’s ideas are not applicable in Constitutional democracies.

4. Idea of Sanction is deficient

According to Austin, the primary function of state is to use force to impose sanctions. But modern
democracies have governments that serve the people and are elected by them to ensure their safety
and prosperity, not use force on them. The force used by the state is not the power of the state but
the willingness of the people to obey the same.
The idea that sanctions can only be imposed through force is false. In International law, sanctions
take up the form of Economic and Political sanctions and are achieved through international
cooperation, not the use of force.
In fact, some International laws do not have sanctions at all, and yet many states abide by them
because of a mutual understanding and recognition of Opinio Juris, i.e. legal obligation. This
refutes Austin’s idea that sanction is an essential of Law.
LAW IS MADE OF RULES
Prof Hart’s concept of a legal system

Prof H L A Hart in the concept of law, tells us in any society things that influence human behavior
can be divided into two categories:
a) Social habits and
b) Social rules
Social habits- an example of a social habit might be the habit of a group going out on an outing on
Friday evening. Habits are not rules. If someone does not go on an outing on Friday, she will not
be regarded as a fault nor be subjected to criticism. When a group have a particular habit, although
this may be observable by an outsider, no member of the group is conscious of the habit. Again,
members of the group do not consciously strive to see that the habit is maintained.
Social rules- an example of a social rule might be a rule that a man should take his hat off in church.
If someone breaks the rule, this is regarded as fault and renders the offender liable to criticism.
Such criticism is deemed warranted. Again, members of the group must be aware of the existence
of the rule and must strive to see that it is followed by the whole group.
External aspect and internal aspect of rules
Internal aspect- the awareness and support of a social rule by the group is what Hart calls internal
aspect of a rule.
External aspect- the fact that a social rule will be observed to exist by anyone looking from outside
is what Hart calls external aspect.
Social rules
Social rules are of two kinds:
1) Social conventions- these are more than habits, as a group strives to see that the rules are
observed and those who break them are criticized. For example rules of etiquette or rules
of correct speech
2) Social obligations- there is insistent demand that members of the group conform. There is
great pressure on those who break the rule or threaten to do so.

Social obligations
Rules which constitute obligations may be sub-divided into two categories:
a) Moral obligations- these rules form part of the moral code of the society concerned. There
may be no central body responsible for punishing violation of such rules, the only form of
pressure for conformity being a hostile reaction (stopping short of physical action) towards
the person who breaks the rule. The pressure for conformity may take the form of words
of disapproval or appeal to the individual to respect the rule. Reliance being on the feelings
of shame, remorse or guilty of the offender.
 b) Laws- these rules form part of the law. There is pressure for conformity including physical
sanctions against the person who breaks the rule.
In both (a) and (b) above, there is serious pressure to conform to the rule, and that is what makes
the rule an obligation (as opposed to a mere social convention or even a habit)

Primary and secondary rules

Legal rules are of two kinds:
1) Primary rules- primary rules tell people to do things or not to do things. They lay down
duties
2) Secondary rule- secondary rules are ones which let people by doing certain things to
introduce new rules of the first kind or alter them. They give people power to introduce or
vary the primary rules.

The functions of secondary rules

Imagine of a society which does not have a legislature, courts or officials of any kind. The society
would live by primary rules of obligation. The only means of control in such society, is the attitude
of the group towards behavior that it will accept as permissible.
For such society to exist, the following conditions must be satisfied:
1) The primary rules must include rules which contain restrictions on violence, theft and
deception.
2) Although there may be a minority who reject the rules, the majority must accept them.
3) The society must be a small one, with close ties of kinship, common sentiments and beliefs.
4) The society must live in a stable environment.
If conditions number 1 and 2 above are not satisfied, the society could continue to exist by means
of such a simple system of social control. The following defects would show themselves:
1) If there is uncertainty of what the primary rules are, there would be no means of resolving
the uncertainty.
2) There would be no means of altering the rules according to changing circumstances.
3) There would no means of settling a dispute as to whether a rule has been broken.
4) There would be no one with authority to impose punishments for breaches of the rules.

The above defects can be rectified by supplementing the primary rules by other rules known as
secondary rules. The secondary rules can provide remedies for defects listed above by having the
following rules:
1) Rules of recognition- The defect of uncertainty as to what primary rules are, can be
remedied by having secondary rules which provide rules which provide a way of knowing
whether a suggested rule is or is not in fact a rule of the group. A ‘rule of recognition’ helps
in determining whether a law is valid
2) Rules of change- the defect that the rules are static, can be remedied by having secondary
rules that provide for ways in which the primary rules can be changed. Such rules specify
the persons who have the power to alter the law and the procedure to be followed.
3) Rules of adjudication- the defect of finding out whether a rule has been broken, can be
remedied by having a secondary rule that specify who is to decide this (e.g. a judge) and
any procedure which must be followed.
4) Rules of sanction- the defect on who can impose punishments for breaches of the rules, can
be remedied by having secondary rules which prohibit individuals from taking into their
own hands the punishment of others for breaches of primary rules and instead providing
for an official system of penalties administered by officials.

Rules of recognition
The rule of recognition expresses the basic tenet of legal positivism: that there are
conventional criteria, agreed upon by officials, for determining which rules are and which
are not part of the legal system. This in turn points to the separation of the identification of
law from its moral evaluation- the separation of statement about what the law is from
statement about what it should be.
The rule of recognition, Hart says, helps people to find out what primary rules are. It
enables people to know what is and what is not law.
 RONALD DWORKIN’S INTERPRETIVE APPROACH

Prof Ronald Dworkin’s principle contributions in legal theory are contained in two books, Taking
Rights seriously (1977) and Law’s Empire (1986).
In chapter 2 of Taking Rights seriously, he explains that his purpose will be to criticize what he
calls (because of its influence and popularity), “The ruling theory of law”. He explained that the
ruling theory has two parts, namely:
First, law consists of rules decreed by certain specific institutions and
Second, the theory that finds the answer to the question, ‘what purpose should law serve?’
to be that law should serve the general welfare of the community- the answer of the
utilitarians.
According to Dworkins, the formalism inherent in positivism compels the courts to enforce justice
of a procedural character thereby preventing them from administering substantive justice which is
richer.
Critics of the ruling theory follow the views of Edmund Burke that law consists not simply of rules
that are ordained, but also diffuse customary morality of a community. These critics also believe
that the optimism of the utilitarians (that society can be improved by the passing of laws that
promote the greatest good of the greatest number) is ill-founded. Together with Burke, they believe
that the rules best suited to promote the welfare of a community will emerge only from the
experience of that community, so that more trust should be put in the established social culture
than in the social engineering of the utilitarians.

Hard case
Dworkin sought to explain how judges make decisions in ‘hard cases’.
A hard case is one in which there is a larger than normal degree of uncertainty as to the outcome
owing to the fact that there is no pre-existing rule governing the relevant situation or in which a
pre-existing rule appears likely to produce a result that will not seem satisfactory. In such cases
there are likely to be factors that pull judges in different directions. ‘Hard cases’ are ones in which
it is hard for the judge to decide which of two conflicting principles should prevail.
Dworkin cited the US case of Riggs v Palmer where the grand son who had murdered his
grandfather in order to inherit his property was disbarred from the inheritance on the legal principle
that no one should be permitted to profit from his own fraud or take advantage of his wrong.
He also gave an example of Henningsen v Bloomfield where a contract contained an exemption
clause which limited the manufacturer’s liability to making good defective parts. H sought to
recover damages for injuries sustained due to a fault in the car. The court ruled in his favor. The
court was influenced by a variety of intersecting principles and policies which together provided
authority for a new rule respecting a manufacturer’s liability.
Thus law is concerned not only with established (posited) rules but also with principles. Dworkin
argues that positivism being a system of rules, misses the importance of these principles. Again,
principles do not act in ‘all or nothing fashion’ like the rules. Unlike rules, principles have
dimension of weight or importance. When two principles lead to different conclusions, the judge
must take into account the relative weight, the persuasive pull of each. Rules do not have that
quality: if two rules conflict, only one can be valid.
Dworkins identifies legal principles as separate sort of standard apart from legal rules. The court
cites principles as its justification for adopting and applying a new rule. In Riggs the court cited
the principle that no man may profit from his own wrong in justifying the new interpretation of
the Statute of Wills. In Henningsen, the court cited a variety of intersecting principles and policies
as authority for a new rule respecting manufacturers’ liability for automobile defects.
Positivists admit that rules may not always be sufficient to enable judges to reach a decision. They
are of the view that where a case cannot be decided by the application of a clear rule, a judge must
decide by the exercise of his discretion and when this happens the judge creates new law. For
example, Hart says that where rules run out, the law is open ended. That the rules of law, at their
fringes, have an ‘open texture’.
According to Dworkins, that notion is defective since it fails to recognize that where rules run out,
judges, in reaching their decision, are guided by principles. Dworkin points another defect in Hart’s
rule of recognition- the idea that in each legal system there is an ultimate test for determining the
validity of a particular law. Dworkin says that this idea is defective because it provides no place
for establishing the validity of principles. Principles cannot be traced back to any rule of
recognition. The origin of legal principles (such as in Riggs and Henningsen) lies not in a particular
legislation or court decision, but in a sense of appropriateness developed in the profession and the
public over time. Their continued power depends upon this sense of appropriateness being
sustained.
Having demonstrated the importance of principle, Dworkins in chapter 4 of Taking Rights
Seriously formulates a theory in place of the ‘ruling theory’. He starts by making a distinction
between two types of arguments that are employed to justify a legislature to enact a law or a judge
to reach a particular decision. These arguments are:
First, argument of policy- it justify a political decision by showing that the decision advances or
protects some collective goal of the community as a whole.
Second, argument of principle- it justify a political decision by showing that the decision respects
or secures some individual or group right.
When a case arises in which no settled rule dictates a decision either way, then it might seem that
the judge could reach a conclusion on the basis of policy or principle.
How is a judge to decide which legal principles to apply? In order to show the factors a judge
would take into account in reaching his conclusion, Dworkins invents a lawyer of superhuman
skills, learning, patience and acumen who is a judge in a representative American court. Dworkin
calls this judge Hercules.

The Seamless Web of Fit and Justification

According to Dworkins, law is a seamless web of principles within which are manifested the legal
entitlement of a citizen in any piece of litigation. There is a right answer for every legal question.
The duty of a judge is to find that right answer. Thus, if an issue has not arisen previously before
the courts, a judge does not (exercising Hartian ‘discretion’), acting as deputy legislator, create
new law. He gives effect to what already implicit in the society within which the legal system
operates.
A judge may think that she is exercising Hartian discretion and is creating new law. But they are
not. The existing law of society, contains the pointer to the decision that must be made. And when
the decision is reached, the law it lays down will not be a new law so as the crystallization of what
is already inherent in the society within which the legal system operates. Judges do not make law,
they find it.
Dworkin's idea that judges decide cases in the way that best "fits" and "justifies the law. Both "fit"
and "justification" connect to the idea that the law is seamless web. So when a judge decides a
"hard case," the judge's decision must "fit" what has gone before him. It must be coherent with the
cases, statutes, constitutional provisions, and so forth. This requirement of fit is holistic. The
decision must fit all of the law--not just the law that is directly relevant to the case at hand. So a
rule of contract law is improper if that rule would violate the constitution or authorize violation of
a statutory prohibition.
HANS KELSEN PURE THEORY OF LAW

Kelsen called his theory the ‘pure theory of law’. His sought to identify the very essence of law,
the one thing that makes something law, as opposed to the other form of directions that exists in a
society. His aim was to find the common characteristic of law in all legal systems.

Unadulterated law
Kelsen wanted to rid his theory of such ‘impurities’ of morality, history, politics, sociology, etc.
Kelsen says that if we are to arrive at a scientific (as opposed to a subjective, value-laden) theory
of law, we need to restrict our analysis to the ‘norms’ of positive law. The theory therefore rules
out all that cannot be objectively known for example the social purposes of law, politics, morality
etc.

Direction to officials.
Law is made up of statements that take the form of if A happens, then X should follow. If so and
so, then so and so. It is direction to officials who form part of a state’s apparatus, in particular to
the officials concerned with the administration of the law. Example, direction to a judge, “if a
person is prosecuted for an alleged crime, then try him, and if he is found guilty, sentence him’
Thus a law that makes it an offence to drive above 70 mph on a motorway is not a direction to
motorists ‘do not drive above 70 mph’. It is a direction to officials, especially the police that, ‘if
you believe a person to have driven above 70 mph, arrest him’. It is also a direction to a judge, ‘if
a person is brought before your court accused of driving above 70 mph, try him and sentence him
if he is found guilty’; to a prison officer, ‘if a person is sentenced to a term in prison, arrange for
his imprisonment’; and finally to a jailer, ‘close the door and turn the key’
The idea that law is the command of the sovereign is at the heart of Hart’s theory of law. The
command was conceived as an order to citizens, for example, ‘do not drive above 70 mph’, the
command creating a rule that people should not drive above that speed. Kelsen recognized that, in
practice, from a direction to officials a rule can be deduced. From a direction to a judge to hang
murderers could be deduced a rule prohibiting murder. For Kelsen, the rule was secondary: what
mattered was direction to officials.
The argument that law primarily consists of directions to officials was recognized by Hart as being
a ‘formidable and interesting theory’. But Hart thought that it did not accurately represent reality.

‘… then X ought to…’

By ‘norms’ Kelsen means that ‘something ought to be or ought to happen, especially that human
being ought to behave in a specific way’. The law consists of a series of ‘ought’ statements.
The norms of law provide that if certain conduct (X) is performed, then a sanction (Y) should be
applied by officials. If X then Y.
Kelsen thought of law in terms of, ‘if A does X, then B ought to do Y’. What is intended is that ‘if
A does X, then B is required to do Y’. That it is part of the intended system that B should do Y or
even that B must do Y. Therefore, the word ‘ought to’ demands an action to comply with a
prescribed requirement.

Norms
By ‘norms’ Kelsen means that ‘something ought to be or ought to happen, especially that a human
being ought to behalf in a particular way’
A norm is something that is fixed, so as to provide a standard against which other things are judged;
a norm thus something to be confirmed to. The existence of a legal norm makes a particular act a
legal act. The legal norm distinguishes the order of the official from that of a gangster.

A hierarchy of norms
But a norm, in order to be valid (ie binding), must be authorized by another norm, which in turn,
is authorized by a higher norm in the system. So the validity of every norm depends on the validity
of another norm, the whole series forming an ascending hierarchy.

The grundnorm
As has been pointed out, the validity of each norm is dependent on a higher norm in a system
whose validity is in turn dependent upon a higher norm in the system and so on. A point is
eventually reached beyond which this climbing cannot go. This is the basic norm or Grundnorm.
The validity of the Grundnorm cannot depend on any other norm, it must be presupposed.