TOPIC 5 POSITIVISM Philosophy:

• Legal positivism asserts that the

BAKH - Theory of law & criticism.
existence and content of law are
determined by social facts.
1. Bentham
2. Austin • Emphasizes that valid legal rules
3. Kelsen are recognized by established
4. Hart
sources (e.g., government,
General Understanding of Legal courts) without considering moral
Positivism or ethical implications.
Origin and Meaning:
• The word ‘positive’ comes from Key Features of Legal Positivism
‘positum’, meaning ‘to put’ or ‘laid a. Sovereign Commands: Laws are
down by man’. commands issued by a
• Positive law refers to man-made sovereign authority.
laws, instituted by human b. Separation from Morals: Legal
authorities for societal positivism maintains a strict
governance. separation between law and
• Contrasts with natural law, which morality; moral judgments are
is based on universal moral not part of legal analysis.
principles. c. Closed Legal System: Focuses
• Positivism is a legal philosophy on a self-contained system of
or theory that says the law exists laws (statutes, regulations, case
and what it says is based on law) without external influences.
social facts, not on its own worth. d. Principle of Verifiability: Only
Legal positivism says that laws empirically verifiable statements
are true if they are recognised as are meaningful, rejecting
such by a reliable source, like the metaphysical or theological
government or a court, interpretations.
regardless of what they mean in e. Rigid Separation of ‘Is’ and
terms of morality or ethics. ‘Ought’: Distinguishes between
the law as it is (‘is’) and the law
as it should be (‘ought’), avoiding
normative statements. Major
Theories and Criticisms.
Major Theories and Criticisms Utility Principle:
• Advocated for laws designed to
Bentham’s Theory of Law promote the greatest happiness
(Utilitarianism Theory) for the greatest number.
• Lawmaking should focus on
Critique of Natural Law: utility, evaluating practices based
• Bentham challenged on their benefits to society.
Blackstone’s commentaries, • Ex: in criminal law the
marking a shift from natural law punishment received by the
to legal positivism. offender somehow like a
preventive act. So basically,
Definition of Utility: punishment tu nak elakkan
A principle that actions are judged by dripda jenayah tu lagi berleluasa.
their usefulness in the sense of their
tendency to produce benefit, advantage, Criticisms on Betham’s view:
pleasure, good or happiness. • Subjectivity of pleasure and pain
makes it difficult to measure.
Definition of Law and Sovereign:
• Human motivations are complex
and not solely driven by pleasure
• Defined law as a collection of and pain.
signs indicating the sovereign’s • Overlooks the root causes of
will regarding conduct. crime and the principle of justice
in determining punishment.
• Defined sovereign as a person
or group whose commands are
habitually obeyed by the Austin’s Theory of Law

community. (Positive law)

Codification and Reform: Law and Morality:

Supported codification of law to reduce Advocated for a clear separation

vagueness and uncertainty of common between law and morality.

law. Laws should be clear, rational, and Law is defined as commands from

aimed at societal good. political superiors to inferiors, enforced

by sanctions.
Elements of Law: Sanctions are basically a
1. Sovereignty: The ultimate strong action taken in order
authority obeyed by society, to make people obey the law.
supreme and unchallengeable.
2. Command: Directives from the Criticisms by Hart:
sovereign backed by the threat of • Orders Backed by Threats:
sanctions. Not all laws fit this model (e.g.,
a) Austin states: ‘a contract validity).
command is distinguished • Habit of Obedience:
from other significations • Law should not rely on habitual
of desire, not by the style obedience to one’s body.
in which the desire is • Sovereignty: Sovereign power is
signified, but by the often legally limited (e.g.,
power and purpose of the constitutional constraints).
party commanding to
inflict an evil or pain in
Kelsen’s Pure Theory of Law
case the desire be
(1881- 1973).
disregarded’.
3. Sanction: Punishments or
• Pure Legal Analysis:
penalties for non-compliance,
Sought to develop a theory free
essential to the nature of law.
from ethical, political, and
metaphysical considerations.
a) Bentham views that legal
• Law is seen as a system of
sanction could include
coercive norms laid down
rewards as well as
according to a constitution.
penalties. However,
Austin rejects this view.
The Norms:
b) “Imperative laws” which
• Kelsen states that a legal
lack sanctions are not
system's activities can be traced
laws in the Austinian
back to an authoritative standard,
sense. For example, rules
or norm, which validates specific
in civil code.
behaviors.
 • A norm is the 'meaning' of an act determine the proper punishment
that commands, permits, or based on the Penal Code.
authorizes certain behavior.
• Norms can arise through custom, Role of a Judge:
like common law, or be enacted • A judge's role is to interpret and
by the legislature in its law- apply existing laws.
making role. • Judges should not create new
laws; that's the job of the
• Legal norms do more than just legislature.
outline expected behavior; they
include specific penalties for non- The Position of 'Justice':
compliance, known as
sanctions. • Kelsen believes that the pure
theory of law doesn't address
• For sanctions to be effective, what justice is.
they need to be backed by the • He views justice as an irrational
threat or use of force, which is a ideal based on individual
crucial part of the law. preferences and not something
Essentially, law is a system that that can be objectively
enforces rules through coercion. understood.
• For example, the law not only • Justice is about how the law is
states that possessing drugs applied, not its content.
without a license is illegal, but it • Justice means maintaining order
also makes it a punishable by applying the law carefully and
offense. conscientiously.

Law as Norms Addressed to Officials: The Validity of Norms:

• Laws are directed at officials (like • Kelsen defined law as a system

enforcement agencies and of rules enforced through
judges) to enforce when coercion.
someone breaks them. • A norm is valid if it is authorized
• Example: If someone is accused by a higher-ranking legal norm.
of theft, the judge must
 • In a legal system, there is a justice must be upheld, and
hierarchy of norms, with each injustice should not be tolerated.
norm's authority depending on a
superior norm, ultimately leading
to the Grundnorm (the basic or 3. Overemphasis on Coercion:
highest norm).

- Pure theory of law emphasizes

Hierarchy of Norms: coercion, suggesting law's
• Grundnorm (Basic Norm): The effectiveness comes only from
fundamental norm from which all sanctions and force.
other norms derive their validity.
• Validity of norms depends on
- Critics note that rules are seen
authorization by higher norms.
as obligatory because the
community considers them
Effectiveness of Norms: necessary, not just because they
• For a norm to be valid, it must be are enforced through coercion,
effective and accepted within the similar to religious laws.
community.
• A legal norm must be obeyed by 4. Grundnorm is Unreal:
sufficient number of people to be
considered valid. - Lloyd: The basic norm, on
which the entire legal structure is
Criticisms: based, is not clearly explained.
1. Law is not an isolate: - Reasons for obeying the law
Isolating law from social and are diverse (psychological,
political factors is impractical. social, political, economic), not
2. Justice should have not been from one norm.
disregarded: - Finding support for a basic
-It sees justice as merely the norm requires examining political
careful application of general and social facts, which pure
rules. theory of law excludes.
- Dworkin: The concept of
-Critics argue this view ignores Grundnorm doesn't explain the
the fundamental principle that
 validity of principles and policies, 3. Inefficiency: There is no authoritative
which are not rules. body to determine rule violations and
enforce punishments.

5. Failure to Identify the Source of

Law:
b. Secondary Rules:
- Fuller: Pure theory of law Address defects in primary rules
implies a single source of law (recognition, change, adjudication).
exists, but it doesn't clearly
define this source in objective [Link] of Recognition: Provides criteria
terms. for assessing the validity of other rules.
(e.g. the rule enacted formally by
Hart’s Theory of Law
parliament is “the law”).
System of Rules:
[Link] of Change: Allows for the
- Divided rules into primary
modification of primary rules (e.g.
(obligations) and secondary (powers)
Parliament).
rules.
[Link] of Adjudication: Confers authority
a. Primary Rules:
to judges to resolve disputes and
The rules that create obligations and
enforce rules.
duties (e.g. criminal laws, tax laws).
Criticisms by Dworkin on Hart based
on 3 points:
Hart believes a legal system relying only
on primary rules is ineffective due to:
1. Rules Identified by Pedigree, Not
Content:
1. Uncertainty: Primary rules lack clear
• Hart's View: Legal rules are
definitions and procedures to resolve
validated by their source
doubts about their meaning and scope,
(pedigree), not by their content or
with no authoritative texts or officials to
moral value.
consult.
• Dworkin's Critique: Judges often
2. Static Nature: Primary rules can
need to go beyond formal rules
become outdated and don't easily adapt
and apply legal principles, which
to societal changes.
indicates that rules are not
always exhaustive of the law.
 Legal principles must be referring to legal principles,
considered, which often involve doctrines, and standards, even in
moral reasoning. the absence of explicit rules.
• Case Example: Riggs v. Palmer 3. If there is no valid legal rule, there is
(1889): no legal obligation.
• Facts: Elmer Palmer poisoned • Hart's View: Law is a system of
his grandfather to inherit his rules, creating obligations and
estate. The applicable law (New powers.
York Statute of Wills) did not • Dworkin's Critique: In many
disinherit a murderer. cases, rules alone are
• Court's Decision: The court insufficient. Principles play a
applied the principle that no one crucial role in legal reasoning
should profit from their and adjudication.
wrongdoing, thus disinheriting 4. Separation of Law and Morals:
Elmer. • Hart's View: Clear distinction
• Hart's Perspective: According to between legal rules and moral
legal positivism, the statute principles.
should be applied as written, • Dworkin's Critique: Legal
meaning Elmer would inherit the principles often intertwine with
estate. moral judgments. In hard cases,
• Dworkin's Critique: This case judges must consider moral
illustrates those principles (like principles alongside legal rules to
preventing profit from reach fair decisions.
wrongdoing) are integral to legal
reasoning and cannot be ignored 5. Scope of Legal Rules:
in favor of strict rule application. • Hart's View: Rules are clear-cut
and provide definitive answers.
2. Exhaustiveness of Valid Legal Rules: • Dworkin's Critique: Hart's
• Hart's View: If there are no concept of rules is too narrow.
applicable legal rules, there are Legal systems also include
no legal obligations. broader principles and maxims
• Dworkin's Critique: The law does that influence judicial decisions.
not run out of answers. Judges Legal reasoning often involves
can always find a solution by interpreting these principles
 within the context of the
community's political and social
structure.

Summary of Criticisms
• Bentham: Subjectivity and
impracticality of measuring
pleasure and pain.
• Austin: Habit of obedience,
unlimited sovereign power, and
the need for a system ensuring
continuity.
• Kelsen: Unrealistic isolation of
law from social factors, neglect of
justice, overemphasis on
coercion.
• Hart: Narrow view of rules,
neglect of legal principles,
necessity of broader legal
reasoning.