Meaning of positivism
Prof.H.L.A.Hart enumerated five separate meanings of the expression ‘positivism’
- Laws are commands (This meaning is associated with the two founders of British positivism – Bentham and Austin)
- The analysis of legal concepts is worth pursuing and distinct from sociological and historical inquiries
- Decisions can be deduced logically from predetermined rules without recourse to social aims, policy or morality.
- Moral judgments cannot be established or defended by rational argument, evidence or any other proof.
- The law as it is actually laid down, has to be kept separate from the law that ought to be.
Hart, who regards himself as a positivist, takes legal positivism to mean the simple contention that it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they often do so.
The first positivist was Jeremy Bentham. His work ‘The Limits of Jurisprudence Defined’ contains the views on analytical jurisprudence. His whole outlook was determined by Hume’s empiricism which he enthusiastically embraced. The Chimera of the social contract had been effectively annihilated by Hume, he thought, and he scorned Balckstone’s attempt to find a basis for the common law in this formidable non-entity, the Law of Nature’.
His purpose was to build a theory of law on ‘experience only’. He condemned natural law as silt non-sense containing all kinds of silly ideas. He also condemned common law as mock-law, sham law, quasi law – a mischievous delusion. It was Bentham who destroyed and demolished natural law systematically by giving currency to the concept of utility as the principle of the greatest good of the greatest number. According to him the purpose of law is to promote pleasure and to avoid pain. The basis of law should be the maximum happiness of maximum number.
Bentham defined a law as an assemblage of signs, declarative of a volition, conceived or adopted by the 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.
In Bentham’s view every law consists of command or prohibitions. Supreme power belonged to the King, Lords and Commons. They issued commands and prohibitions that were habitually obeyed. To ensure obedience, threats of evil consequences must be attached to the commands and prohibitions. The person or assemblage of persons possessing supreme power in a political community, Bentham called the sovereign. Strictly speaking law is what the sovereign wills with regard to the conduct of the subjects.
Bentham’s theory of law is thus imperative one. Bentham defined a law in terms of sovereign and defined sovereign in terms of state. According to Bentham every law may be considered in eight different respects: Source, subjects, objects, extent, aspects, force, remedial appendages and expression. In his analysis of law, all considerations of justice and morality disappeared from his approach.
John Austin followed the footsteps of his teacher Bentham. Like Bentham, Austin defined law as commands by a political superior to those who are in a state of subjection to him. The ‘separation of law and morals’ is often regarded as the most prominent feature of Austin’s theory.
John Austin, the famous English jurist, propounded his theory of law in his treatise ‘Province of Jurisprudence Determined’ which was republished posthumously by his wife Sarah Austin under the title ‘Lectures on Jurisprudence’. As Sarah Austin observed in her preface to the book his early life in the army though short appears to have had its own impact on Austin’s approach to jurisprudence.
Austin defines jurisprudence as the philosophy of positive law. Austin meant by positive law the law laid down by a determinate human superior or sovereign for the purpose of regulating the conduct of his subjects. That is, Austin emphasized that jurisprudence deals not with every rule of action but only those rules, which are laws properly so called or what are called the laws of lawyers and law courts. By this emphasis on positive law, Austin wanted to determine the true scope and province of jurisprudence.
John Austin was born in 1790. At the age of sixteen he joined the army and served as lieutenant upto 1812. Then he resigned and began studying law. In 1818, he was called to the Bar. He practised for seven years without success. In 1826, when the University of London was founded, Austin was appointed as Professor of Jurisprudence. He delivered lectures there. First part of the lectures was published in 1822 under the title of ‘The Province of Jurisprudence Determined.’ The second edition of ‘The Province of Jurisprudence Determined’ was published by his wife in 1861. It cannot be denied that Austin took from Bentham the tool of analysis.