The Positivist Theory says that there should be a superior Governmental entity that is not subject to question or challenge. This entity is responsible for determining what is right and what is wrong as a matter of law. If this law is violated, there will be a punishment.
Positivism is a view on the nature of law that all law is positive in the sense of being the expression of the will of a supreme authority, to the exclusion of the supposed law of nature.
Meaning of Positivism
According to H L A Hart, there are five meanings to Positivism:
- Laws are commands
- 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 judgements cannot be established or defended by rational arguments, evidence or any other proof.
- Law as it is actually laid down, has to be kept separate from the law that ought to be.
These can be studied in detailed in Hart's Concept of Law
- Jeremy Bentham is considered the first Positivist.
- His purpose was to build a theory of law on experience only.
- Bentham destroyed natural theory of law gradually.
- Purpose of law is to promote pleasure and to avoid pain.
- Basis of law should be maximum happiness of maximum number.
- Law is an assemblage of signs, declarative of a violation, conceived or adopted by the sovereign of the state.
- Every law contains commands or prohibitions
- Austin defined Jurisprudence as philosophy of positive law.
- According to him, Positive Law is the law laid down by a determinate human superior or sovereign for the purpose of regulating the conduct of his subjects.
- Only those rules which are laws properly so called or what are called the laws of lawyers and law courts.
- Austin wanted to determine the true scope and province of jurisprudence.
- Two types of Jurisprudence: General and Particular
- General Jurisprudence: Philosophy of positive law; Fundamental principles which are common to the different systems of law prevailing in various countries; Basic elements of law that are common to all legal systems
- Particular Jurisprudence: Science of particular law; Science of any actual system of law or any portion of it; Specific national jurisprudence which is distinct, different and separate from other legal systems
- Legal System is the entire structure of laws in a political society
- Holland rejected Austin system of Jurisprudence saying that if it is a science, it should be treated as incapable of being divided into the two branches of general and particular.