Juris 5 - Legal Positivism and Normativism
Juris 5 - Legal Positivism and Normativism
Juris 5 - Legal Positivism and Normativism
LECTURE 5
LEGAL POSITIVISM
Today’s Lecture
LEGAL POSITIVSM AND AFRICAN KINSHIP SOCIETY
◦ Mbiti
LEGAL POSITIVISM
◦ Austin’s “Command” Theory
◦ Hart’s Concept of Law
NORMATIVISM
◦ Kelsen’s Pure Law Theory
INTRODUCTION
Having discussed the natural law theorists, it should be apparent that jurisprudence deals
with the core features in all instances of the law.
◦ Natural lawyers ask what the law “ought” to be;
◦ Legal positivists are predominantly concerned with what the law “is”.
It is important to note that the law is one of many systems of norms which regulate human
behaviour.
◦ Examples?
Legal positivism therefore attempts to derive the fundamental basis for what constitutes the
“law”.
AIM OF THIS SECTION
The aim of this section will be to ask whether, in terms of legal positivist thought, there was
“law” in traditional African societies.
i.e. do the theories of Austin, Hart and Kelsen actually explain the fundamental essence of
law in all circumstances and situations?
THE NATURE OF TRADITIONAL
AFRICAN SOCIETY
Reading – Mbiti (page 21 of textbook) – Kenyan philosopher
Generally, they do this by attempting to define the law in an empirical basis, and separating
the law from extraneous factors, such as morality.
In other words, the commands issued must be habitually obeyed by the general class of
persons previously discussed.
Note that habit here does not mean in the ordinary sense of the word
◦ It is not comparable to habitually going to the gym every evening.
◦ Merely denotes a pattern of compliance
Modification 4: Supremacy
The first three modifications deal with the order, the last two deal
with the person giving the order.
◦ Law is a command
◦ Given by a determinate common superior
◦ To whom the bulk of a society is in the habit of obedience and
◦ Is enforced by a sanction.
◦ (the sanction distinguishes a command that is law from a command
that is not)
Important concepts
◦ Positive law is distinguished from divine law – or law of God – only former relevant for JP.
Therefore, positive law is est. by a sovereign. Capable of delegating authority to public officials, incl.
judges, who then act obo the sovereign. A’s idea of a sovereign means that his model judges are
restricted to law interpreting rather than law making.
◦ Positive law is a form of command – a command is distinguished from the other significations of
desire, not by the style in which the desire is signified, but by the power and purpose of the
commanding to inflict an evil or pain in case the desire be disregarded.
◦ The command must be backed by a sanction – ‘an enforcement of obedience’ (sanction can be
‘weak’ = nullity is a form of sanction)
◦ Positive law produces in the populace HABITUAL OBEDIENCE
Critiques of command theory
Kinship norms could not be law – (and also generally)?
Even if social norm enforcement – you need a sovereign?! (what about South Africa or
Kenya?)