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As such, you must answer one of the following questions:

  1. “Understanding legal theory requires an understanding of the moral context of law”. Discuss this statement in light of two theories referred to in this unit.
  1. Based on two theories referred to in this unit, provide two arguments for why drivers should never exceed the posted speed limit when driving a car on a public road.
  1. “A man’s house is his castle” (E. Coke, First Part of the Institutes of the Laws of England, 1628, 161). Discuss this claim in light of two theories discussed in this unit.
  1. “The law is written by the powerful”. Discuss this statement in light of two theories referred to in this unit.

Key Proponents of Legal Positivism: Jeremy Bentham and John Austin

The statement that –“the law is written by the powerful”was the philosophy of Legal Positivists. It was the answer provided to ‘what is law’ under the theory developed by Early Positivists of Law in the 18th and 19th centuries. These Early Positivists were – Jeremy Bentham and John Austin.

The Legal Positivists highlight on the notion of ‘Law as it is’ based on the contention of what is real, can be observed and does exist.This school of thought was developed as a response to the theories of Natural law, which emphasised on the concept of ‘Law as it ought to be’ and how laws can be created on the basis of morality to make them – just or ethical.Under the theories of Natural Law, law isnot considered to be man-made and that it is based on the truthfulness of morality and justice.

Both the Positivists – Bentham and Austin followed the same focal idea of ‘what is law’, but they differed in their opinion regarding common law, God and the moral element of law.

The theory of legal positivism looks at the legal system of a society as solely dependent on the sovereign present in that society. It does not look at the other key aspects of law, which are morality, justice, will of people or the rule of law. Both these positivists followed this theory of absolute power to the sovereign.

Jeremy Bentham was an English jurist, social reformer and philosopher. He is considered to be one of the most prominent leasers of Legal positivism. He is also termed as ‘father of Modern Utilitarianism’.

The definition of law provided by Bentham can be summarised as Law is the will of the supreme authority. He opined that rules can only be a consequence of thecommands of a sovereign authority and that only these rules can form the law of the land. Based on this thought, he emphasised that the rules which arise from the will of the sovereign result in more clear and specific laws as compared to the rules which are derived from a common law system.

Bentham was convinced that law flows from the force of the sovereign to regulate the people and that it must be followed by the group of people to whom it is applicable.

Bentham did not believe the law to be moral or just. He did not link law with morality. According to him, law is the result of commands issued by the sovereign, who is highest body present in that territory and that supreme ruler does not follow any other person but commands habitual obedience from the group of people living together. In other words, this sovereign is most powerful and his command is law.

The Concepts of Law as it is and Law as it ought to be

Bentham also did not mention that this sovereign can only be an individual. He was of the opinion that sovereign can be a body or group, however, this sovereign must not bow to any other body or group.

Further, Bentham did not view the power of the sovereign as absolute. He thought that the sovereign can, by his own will, limitor divide his power. He say agreements with external agencies as a means to limit power of sovereign.

Bentham also opined that law should always be supported bysanctions. Thus, the rules of sovereign to become law must be backed by rewards and punishments.He visualised that those people who follow the law of sovereign should be rewarded and those who do not follow this law should be punished. This would encourage people to follow the law and deter the ones not following laws by the penalties.

In consonance with this thought, he formulated the theory of utility, which states that all people are governed by pain and pleasure, which act as their masters. Every person wishes his pleasure to increase and his pains to decrease. Thus, while creating any rule or law, this aspect should be kept in mind. Therefore, law should be measured on the amount of pain it may cause to those who breach it and how much amount of pleasure it would provide to those people who follow it.

This theory of utility is also termed as ‘greatest happiness principle’ since Bentham claimed that the greatest happiness of greatest numbers can only be the measure of right or wrong. He vehemently rejected natural rights and found that only ‘greatest happiness’ can become the foundation of a free society.

Bentham also looked at liberty with his two elements. He commented that liberty is pleasure, on the other hand, any restriction on this liberty is a pain.

Bentham was quite insistent on writing or codifying the laws. He was interested in codifying the laws of England as well as America.

John Austin was also a well-known legal philosopher belonging to England. He was a disciple of Jeremy Bentham and took his work to a different level, though bit divergent with his thought process but he made Bentham much more popular with his writings and works. He is considered to have formulated the systematic alternate to both ‘natural law theories of law’ and ‘utilitarianism’. His theory is regarded as a form of ‘analytic jurisprudence’.

The Importance of the Sovereign in Legal Positivism

Austin clearly distinguished the ‘moral rules’ from ‘positive law’. He, unlike Bentham believed that the fundamentalbasis of the moral ruleswas considered to be the lawdeclared by God and as written in the ancient scriptures. He opined that will of God gives purpose and takes care of the greatest happiness of all living beings.Austin was of the opinion that that the laws of god even though not expressedor communicated in any method, are inferred from the consequence of happinessof all persons collectively treated as greatest, inclinations of humans to increase or decrease that factor. He firmly believed that utility helps to discover divine pleasure.

He diverged from the views of Bentham as regards the law being only laid down by sovereign. He agreed to the category of law derived from sovereign, but also included the moral laws provided by God through scriptures. He created subset of laws termed as ‘positive law’.

Austin attempted to create a classification of all types of laws which were present in his times. He wished to identify each law and call them by their proper names, e.g. divine law, moral law, customary laws,laws of private associations, laws of households, and also international law.

So, he created two key categories of laws and termed them as: ‘Laws Properly So Called’ and ‘Positive Law’. Thus, he gave weightage to both the laws – laws from God as well laws created by a sovereign. The former were termed as Divine Law and the latter as Positive Law.

He created another category of laws as ‘Laws improperly so called’. These laws were based on the opinion of people and were formulated among themselves for systematic conduct. He clarified that since there is no proper authority behind these laws, so the same are improper laws.

The definition of positive law given by Austin is similar to Bentham. He also opined that the commands of a sovereign should be supported bysanctions against the people who do not obey those commands. He diverged from Bentham by using the term ‘political sovereign’ instead of only sovereign.

He was of the opinion that a society must have a political sovereign for deriving the real sense in to positive laws. In his eyes, political sovereignty of the society was real independence.

Austin even justified few laws which though were improper as they did not have all the elements of a proper law (political sovereign, command and sanction). These laws were:

  1. Declaratory laws

The Relationship between Law and Morality

These were derived from a declaration, which only clarify or interpretthe existing rules.

  1. Laws to repeal law

These were formulated to repeal the previous duties or rules.

  • Laws of imperfect obligation

These referred to the laws which were not followed by any sanctions. He termed these as duties which people were obliged to carry out e.g. keeping the city clean.

Austin also differentiated between positive law and positive morality. He defined positive morality as rules which were similar to positive laws. However, he gave weightage to positive laws in case of any conflict.

The first and foremost difference between these two great philosophers is on the belief of God and his scriptures as source of law. Bentham did not support the idea that scriptures could be considered as a source of law. He firmly believed in the will of sovereign as the will ofGod cannot be ascertained.

On the other hand, Austin believed in both – the law of God as well as the law derived from the will of a sovereign. He believed in writings of scriptures and treated them as a formidable source of moral rules.

Another point of difference between them is as regards the definition of the term ‘sovereignty’. Bentham believes wholly in the supreme power of a sovereign. He sees the sovereign as the most powerful and does not think that his power can be divided. Whereas, Austin looks at sovereignty from a political aspect. He thinks that sovereignty is based on not only internal but also external aspects. He also talks about limiting or dividing this sovereignty, which is different from that of Bentham who visuals sovereign as absolute.

Both Bentham and Austin had different views on the sanctions associated with the laws. Bentham stated that laws should have both elements - pleasure and pain. If the law was followed by the people, then they should be rewarded and if they did not follow the law, then they should be punished.

On the other hand, Austin talks only about the sanctions. He does not mention about rewarding the people if they follow the laws. He refers only to the punishments once the laws are disobeyed.

The whole perspective put by Bentham of – greatest happiness is lost in the teachings of Austin.

Another key area of disagreement between Austin and Bentham is that of judiciary. The sovereign as per Benthamdoes not require courts to play any role in legal development. The sovereign has the supreme power. However, Austin’s ideas of utilitarianism fuelled the belief that judiciarywill help in creating laws which will also be beneficial for the public at large.

The Theory of Utility in Legal Positivism

Criticism:

There were short falls in views of both Jeremy Bentham and John Austin. Both being Positivists laid heavy emphasis on the power of sovereign. They both treated their sovereigns with extreme power and command, however they both did not give any importance to international law. What happens to other sovereigns who might exist beyond the territorial limitation of the current sovereign? Should one sovereign not observe the sovereignty of others?

They both talk only about the law of the land. What happens to other sovereigns which are present in other lands?

Both the philosophers also did not assess the requirement of system for assessment of the laws created by the sovereign. Judiciary was also nearly absent. Is a system not required to keep a check on the absolute powers of sovereign?

The concept of law to be linked only with sanctions (or rewards as well in the case of Bentham) is itself flawed. The laws are not created only for the happiness of all people, but the whole idea is to have a systematic and regulated life.Does the meaning of law only implies penalties and punishments? Can a person or group of people for that matter be rewarded for following a law?

Further, Bentham does not prove that the law should be for greater happiness; he merely uses this as an assumption to base his theory, which eventually became the cornerstone of his philosophy and was also followed by other thinkers. What is the basis of creating those rules which provide happiness? Does the concept of law only require greater numbers?

Conclusion:

Law is not a system purely based on the will of the ‘strongest person’. Law can also not be based on system of rewards and sanctions.

The system of law cannot be in the hands of a sovereign who does not obey anyone but must be obeyed by everyone. This philosophy is more like dictatorship where the sovereign has all the powers and can decide on all matters without any restrictions from any one. The sovereign also does not observe the power vested in another sovereign, which can never be the case.

There is no due given to morality by the Legal Positivists. These theories look at the common good of all people and term it as greatest happiness but fail to conduct a morality check of the laws being created by the sovereign or for that matter to even the authority of that sovereign.

References:

Austin 1873: Lecture IV.

Bentham, Jeremy (1782). Of Laws in General. Ed. H.L.A. Hart, 1970. London: Athlone Press.

Crowe, Jonathan, "Natural Law Theories" (2016) 11(2) Philosophy Compass.

Nalbandian, Notes on Jurisprudence: Natural Law Theories, I Mizan Law Review No. 1 June 2007

Finnis, John (1996). “The Truth in Legal Positivism,” in The Autonomy of Law, ed. Robert P. George. Oxford: Clarendon Press.

Fuesser, Klaus (1996), “Farewell to ‘Legal Positivism’: The Separation Thesis Unravelling,” in The Autonomy of Law, ed. Robert P. George. Oxford: Clarendon Press.

Gardner, John (2001) “Legal Positivism: 5 ½ Myths,” 46 American Journal of Jurisprudence.

Green, Leslie (1999). “Positivism and Conventionalism,” 12 Canadian Journal of Law and Jurisprudence.

Green, Leslie, "Legal Positivism", The Stanford Encyclopedia of Philosophy (Spring 2018 Edition), Edward N. Zalta (ed.), URL = <https://plato.stanford.edu/archives/spr2018/entries/legal-positivism/>.

H.L.A. Hart, The Concept of Law (1961, 2nd edn. Clarendon Law Series).

Himma, Kenneth E., "Judicial Discretion and the Concept of Law," forthcoming in Oxford Journal of Legal Studies vol. 18, no. 1 (1999)

Penner, D. Schiff and R. Nobles, Introduction to Jurisprudence and Legal Theory: Commentary and Materials (2000) Lexis Nexis, UK, London.

Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (2008, Read Books)

John Austin, Lectures on Jurisprudence (2002, Vol. 1, Bloomsbury Academic)

John Austin, The Province of Jurisprudence Determined (1832)

Kelsen, Hans (1945). General Theory of Law and State, trans. A. Wedberg, repr. 1961. New York: Russell and Russell.

Kramer, Matthew (1999). In Defense of Legal Positivism: Law Without Trimmings. Oxford: Clarendon Press.

MacCormick, Neil (1985). “A Moralistic Case for A-moralistic Law,” 20 Valparaiso Law Review 1.

Morison, W. L. (1982) John Austin. Stanford: Stanford University Press.

Campbell, The Philosophy of Positive Law (1879)

Schauer, Fred (1996), “Positivism as Pariah,” in R.P. George, ed. The Autonomy of Law. Oxford: Clarendon Press.

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