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Positivist Theory

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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

Bentham Positivism

  • 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 Positivism

  • 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.

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