Positivism
Positivism
Positivism
Legal positivism is the legal philosophy which argues that any and all laws are
nothing more and nothing less than simply the expression of the will of whatever
authority created them. Thus, no laws can be regarded as expressions of higher
morality or higher principles to which people can appeal when they disagree with the
laws. It is a view that law is a social construction. The creation of laws is simply an
exercise in brute force and an expression of power, not an attempt to realize any
loftier moral or social goals. Therefore, from a positivist perspective, it can be said
that “legal rules or laws are valid not because they are rooted in moral or natural law,
but because they are enacted by legitimate authority and are accepted by the society
as such”.
English political thinkers John Austin articulated the command theory of law, which
stood for the proposition that the only legal authorities that courts should recognize
are the commands of the sovereign, because only the sovereign is entrusted with the
power to enforce its commands with military and police force.
Austin defined law by saying that it is the “command of the sovereign”. He expounds
on this further by identifying the elements of the definition and distinguishing law
from other concepts that are similar:
“Commands” involve an expressed wish that something be done, and “an evil” to be
imposed if that wish is not complied with.
The “sovereign” is defined as a person (or determinate body of persons) who receives
habitual obedience from the bulk of the population, but who does not habitually
obey any other (earthly) person or institution. Austin thought that all independent
political societies, by their nature, have a sovereign.