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    Positivism

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    Chinta Perera
    Legal positivism is a theory of jurisprudence that argues laws are valid solely because they are enacted by a political authority and accepted by society, not because they accord with morality. John Austin articulated the command theory of law, stating that laws are the commands of a sovereign authority, like a legislature or monarch, backed by threats of punishment. Austin defined positive law as the general commands issued by a sovereign to a population that habitually obeys it but does not obey any other earthly authority.

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    Positivism

    Uploaded by

    Chinta Perera
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    Legal positivism is a theory of jurisprudence that argues laws are valid solely because they are enacted by a political authority and accepted by society, not because they accord with morality. John Austin articulated the command theory of law, stating that laws are the commands of a sovereign authority, like a legislature or monarch, backed by threats of punishment. Austin defined positive law as the general commands issued by a sovereign to a population that habitually obeys it but does not obey any other earthly authority.

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    Legal positivism is a theory of jurisprudence that argues laws are valid solely because they are enacted by a political authority and accepted by society, not because they accord with morality. John Austin articulated the command theory of law, stating that laws are the commands of a sovereign authority, like a legislature or monarch, backed by threats of punishment. Austin defined positive law as the general commands issued by a sovereign to a population that habitually obeys it but does not obey any other earthly authority.

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    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
    Download as docx, pdf, or txt
    2 views2 pages

    Positivism

    Uploaded by

    Chinta Perera
    Legal positivism is a theory of jurisprudence that argues laws are valid solely because they are enacted by a political authority and accepted by society, not because they accord with morality. John Austin articulated the command theory of law, stating that laws are the commands of a sovereign authority, like a legislature or monarch, backed by threats of punishment. Austin defined positive law as the general commands issued by a sovereign to a population that habitually obeys it but does not obey any other earthly authority.

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    © All Rights Reserved
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    I.

    Introduction to Legal Positivism


    A. Definition
    Positivism is from the Latin root positus, which means to posit, postulate, or firmly
    affix the existence of something. Legal positivism is a school of jurisprudence whose
    advocates believe that the only legitimate sources of law are those written rules,
    regulations, and principles that have been expressly enacted, adopted, or recognized
    by a governmental entity or political institution, including administrative, executive,
    legislative, and judicial bodies. The basic question to be asked when talking about this
    theory is “What is law?” Is it written? Where does it come from? Legal positivism is a
    theory which answers these questions.

    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.

    Rules are general commands (applying generally to a class), as contrasted with


    specific or individual commands (“drink wine today” or “John Major must drink wine”).
    Positive law consists of those commands laid down by a sovereign (or its agents), to
    be contrasted to other law-givers, like God’s general commands, and the general
    commands of an employer to an employee.

    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.

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