Essay on Legal Positivism

The positivist conception of law is a challenge to the natural law theory. John Austin and HLA Hart were both positivists.[1] The common ground among positivist theorists is that there is no necessary connection between the law and morality, as well as the fact that the content of law depends on the social facts applicable to the said law, and not the merits of the said law[2]. However, different positivists differ significantly with regard to the description of the fundamental test which any legal rule must pass in order to be considered as a law. John Austin’s theory defines a law as a command of the sovereign. Hart’s conception of law on the other hand is an improvement of Austin’s theory _he contends that the law is comprised of rules of different logical kinds; primary rules and secondary rules. This treatise will con

John Austin defines law as a command of the sovereign. He defined a command as an expression of desire that other people behave in a particular way. Commands, according to the theory of sovereignty are backed by power which enforces them in case of disobedience.[3] John Austin then proceeds to classify various laws as either legal, moral or religious depending on the person who is responsible for enforcing the same. The laws of a community, according to this theory therefore, are the general commands which the sovereign of that community has deployed. If any member of that community has a legal obligation arising from the command of sovereign, they ought to discharge such duty to avoid sanctions which may arise as a result of disobedience. Since the command of the sovereign cannot provide for all contingencies, the sovereign also has the power to empower those who interpret laws(judges) to make fresh orders when difficult cases are presented.

Austin’s theory is therefore quite simple; the only qualification for a rule to qualify as a law being that it is what the sovereign has commanded. Simplicity being the sole criterion for identifying the special rules that qualify as law is the main point of criticism levelled against the Austinian theory of sovereignty.[4] The two main objections which were raised against this theory were that; firstly, the Austinian theory makes an assumption that every community or social institution has a specific group or institution which has control over other groups. This arrangement is not applicable in complex societies. In most modern nations political control is pluralistic, with much compromise so that it is not possible to say that any one person can have the level of control required to qualify as an Austinian sovereign. Another criticism that has been levelled against John Austin’s theory is that it does not account for the attitudes that people have towards various rules. In Austin’s definition one cannot differentiate between law and the general orders of a ‘gangster’.[5] John Austin presents law as a command which is given by a person that is in authority, as long as there is a threat of force. The authority of a law in his theory is therefore premised on the ability of the sovereign to harm those who disobey without any discrimination for the authority giving the command.

H.L.A Hart has a different version of positivism from that of John Austin, which is more complex. To begin with, Hart, unlike John Austin recognizes that there are different logical kinds of rules, which he categorizes as primary and secondary rules. The distinction that Hart creates between primary and secondary rules is important. He defines primary rules as those that either provide rights or impose obligations on members of the community. For example, the Criminal Code which prohibits stealing or driving above the recommended speed limit is an example of a primary rule in Hart’s analysis.[6] Secondary rules on the other hand dictate who is responsible for forming, modifying or extinguishing primary rules. Secondary rules therefore determine how Parliament may be formed and the procedure it utilizes to make law. This classification of laws is also important. Some laws take the structure of commands, for example criminal laws and administrative laws which stipulate what a person is or is not permitted to do.[7] Other laws take the form of norms which do not impose any legal obligations on people_ rather they confer legal powers. For example, the making contracts, wills or marriages. Hart was therefore of the view that not all laws are an expression by the sovereign that they would like for things to be done in a particular way.

The analysis of rules done by Hart is also important as it improves John Austin’s position. According to Austin, all rules are general commands and that all people are obligated to follow such rules failure to which they are liable for sanctions if they disobey. According to Hart there is an important distinction which should be drawn between being obligated to do something and being obliged to do it. Hart distinguishes the two by stating that if one is bound by any rule they are obligated and not merely obliged to obey the said rule. The implication of this is that a rule cannot be binding simply because a person with physical power commanded it to be so. Rather, the said person (the sovereign) must have the requisite authority to issue the rule.[8] It is also worth noting that the person who has the authority to issue their command obtains such authority from yet another rule (secondary rule) that is already binding on the people that they command. This therefore, is the distinction between a valid law and the orders of a gunman that yields physical power. Hart’s contention thus is that the command theory is not capable of accounting for the variety of laws which exist in a legal system, especially power conferring rules.[9] To this extent, Hart improves on Austin’s idea of a sovereign who gives orders to his subjects by explaining that the said sovereign must be legitimately holding a position of power emanating from an existing law which gives them the authority to command their subjects.

Hart’s definition of law is an improvement of John Austin’s account. While Austin’s is an account of how people apply the concept of law, for Hart it should be an account of what distinguishes various systems of law from one another and from social rules. The rule of recognition, in Hart’s perspective, creates the criteria for distinguishing a valid law from other systems. Thus, according to him law cannot be defined with a simplistic view as that of John Austin to be a command from the sovereign. While some laws are commands, others are not_ they empower persons in authority to make commands and also to alter or interpret the existing laws.

Bibliography

Dworkin, R. (2013). Taking Rights Seriously. London: Bloomsbury Publishing PLC.

Farrelly, C. P., & Solum, L. (2007). Virtue Jurisprudence. London: Palgrave Macmillan

Freeman, M., & Mindus, P. (2013). The legacy of John Austin’s jurisprudence. Dordrecht: Springer Netherlands.

Hart, H. L. A. (2012). The concept of law.

John Austin, ‘A Positivist Conception of LawPreview the document’ in Joel Feinberg and Hyman Gross (eds), Philosophy of Law (Wadsworth, 1994) 30.

McCoubrey, H., White, N. D., & Penner, J. E. (2012). McCoubrey & White’s textbook on jurisprudence.

Shapiro, S. (2011). Legality. Cambridge, Mass: Harvard University Press.

Pavlakos, G. (2007). Law, rights and discourse: The legal philosophy of Robert Alexy. Oxford and Portland, Oregon: Hart Publishing.

Tuori, K. (2016). Critical legal positivism.

[1] Tuori, K. (2016). Critical legal positivism.

[2] McCoubrey, H., White, N. D., & Penner, J. E. (2012). McCoubrey & White’s textbook on jurisprudence.

[3] John Austin, ‘A Positivist Conception of Law Preview the document’ in Joel Feinberg and Hyman Gross (eds), Philosophy of Law (Wadsworth, 1994) 30.

[4] Shapiro, S. (2011). Legality. Cambridge, Mass: Harvard University Press.

[5] Dworkin, R. (2013). Taking Rights Seriously. London: Bloomsbury Publishing PLC.

[6] Freeman, M., & Mindus, P. (2013). The legacy of John Austin’s jurisprudence. Dordrecht: Springer Netherlands.

[7] Farrelly, C. P., & Solum, L. (2007). Virtue Jurisprudence. London: Palgrave Macmillan.

[8] In Pavlakos, G. (2007). Law, rights and discourse: The legal philosophy of Robert Alexy. Oxford and Portland, Oregon: Hart Publishing.

[9] Hart, H. L. A. (2012). The concept of law.