COURSE: LAW 501 JURISPRUDENCE AND LEGAL THEORY

TOPIC: POSTIVIST THEORY OF LAW

INSTRUCTOR: PROF AGBO J. MADAKI, FICMC

INTRODUCTION

Positive laws (Latin: ius positum) are human-made laws that oblige or specify
an action. Positive law also describes the establishment of specific rights for
an individual or group. Etymologically, the name derives from the verb to
posit. The concept of positive law is distinct from "natural law", which
comprises inherent rights, conferred not by act of legislation but by "God,
nature, or reason. Positive law is also described as the law that applies at a
certain time and at a certain place, consisting of statutory law, and case law
as far as it is binding. More specifically, positive law may be characterized as
"law actually and specifically enacted or adopted by proper authority for the
government of an organized jural society."

Positivist theory represents the theory about the nature of law which
developed over the last two hundred years and has its footing in Britain
through the writings of Jeremy Bentham, John Austin, Hans Kelsen, H. L. A
Hart among others. A debate which has run through legal philosophy from
centuries is the debate between the natural law school of thought and the
positive law school of thought respectively. While the naturalists believe
that law has an important connection with morals and connected with the
generalized principles of universal validity extracted from nature and reason,
the positivist emphasis on what is posited, which is where the term
“positivism” comes from.
According to Hart who was a leading light in the positivist movement, the
expression “legal positivism ” is capable of the following meanings or
propositions:

i. that laws are commands of human beings to human beings;

ii. the insistence on the separation of law and morals;

iii. iii. That moral judgments cannot be established or defended as

statements of facts by rational argument, evidence or proof;

iv. iv. That the law as it is actually laid down (posited) has to be kept
separate from the law that ought to be, and also from morals;

v. v. the imperative theory of, law, that is, law being a command, handed
over by a sovereign and backed by sanction.

The emergence of the positive theory of law was due to the need for order
and precision in the legal order. It was therefore, considered neat to
separate what law is from what law ought to be. Legal positivist believe that
law has no relation to moral principles. They believe that morality is not
objective. Bentham and Austin further argued that that the question of what
laws is must be answered without recourse to moral arguments.
1. Positivist Theories
(A) Jeremy Bentham

He was a fervent champion of codified law and of reforming English

law, which according to him was in utter chaos. He saw that there could be
no reform of substantive law without reform of its structure: so analysis of
structure became an essential prelude to reform. He distinguished between
what he termed, “expositorial” jurisprudence (what the law is) and
“censorial” jurisprudence or the art of legislation (what the law ought to be).

Bentham defined law as “an assemblage of signs declarative of a

volition conceived or adopted by the sovereign in a state, concerning the
conduct to be observed in a certain case by a certain person or class of
certain persons, who in the case in questions are supposed to be subject to
his power.” His concept of law is thus an imperative one, for which he
himself proffered the term “mandate”. The definition is flexible enough to
cover “a set of objects so intimately allied and to which there would be
continual occasion to apply the same propositions”, e.g. Not only laws made
by legislators , but also judicial, administrative, domestic orders as well as
declaratory laws. According to Bentham every law may be considered in
eight different respects –source, subject, objects, extent, aspects, force,
remedial appendages and expression.

The source of the law is the will of the sovereign, who may conceive
laws which he personally issues or adopts, laws previously issued by former
sovereigns or subordinate authorities (susception) or may adopt laws to be
issued in future by subordinate authorities (per-adoption). The sovereign is
“any person or assemblage of persons whose will a whole political
community are (no matter on what account) supposed to be in disposition to
pay obedience: and that in preference to the will of any other person”. He
defined “political community” as follows: “where a number of persons (whom
we may style subjects) are supposed to be in the habit of paying obedience
to a person or assemblage of persons of a known andi certain description
(whom we may call governor or governors) such persons although (subjects
and governors) are said to be in a state of political society.” He saw the
purpose of law as centered on the utilitarian principle of achieving the
“greatest happiness of the greatest number.

In his seminar work,” AN INTRODUCTION TO THE PRINCILES OF MORALS AND

LEGESLATION”, Bentham lay the foundation for a theory of law which
considers law as the expressed will of a sovereign. In Bentham’s idea of
sovereignty, sovereignty is neither indivisible nor eliminable. Bentham also
posited that a sovereign maybe band by the act of this predecessor and that
the covenant entered into by this predecessor maybe enforced against his
successor either by extra legal means or indeed by legal sanctions. However,
he those not believe that a legal system can successfully trive on ‘rewards
alone’, not even ‘for half an hour’ those, punishment is the element that
impart potency into the law.
Bentham’s definition of law can be given as the will of the sovereign.
He was of the opinion that rules which are derived exclusively from the will
of the sovereign would produce more clear as well as more certain laws than
the rules which are generated within a common law system. Law, according
to him does not have be in consonants with ethics.
(B) John Austin(1790 - 1859)

John Austin whose work The Province of Jurisprudence Determined

published in 1832 brought him to the spotlight was initially thought to be the
‘father of English jurisprudence” was a friend of Bentham, and in fact his
work The Province of Jurisprudence Determined is said to have been derived
from Bentham’s Limit of Jurisprudence Defined that only surfaced in 1945 1.
Austin conceived his initial task to be a critical analysis of the law as it is. He
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Funso Adaramola, Adaramola Jurisprudence 4th ed (2008)Lexis Nexis 112
set for himself the task of making a beginning with the analysis of the
principal concepts of English law. First, he felt it necessary to demarcate the
province of “law” and then to distinguish it from what it ought to be.

Like Bentham, Austin believed that “Law” is only an aggregate of laws

and defined a law as “a rule laid down for the guidance of an intelligent
being by an intelligent being having power over him. In his view,
jurisprudence is only concerned with positive law i.e. “ law established or
posited in an independent political community by the express or tacit
authority of the sovereign or supreme government 2” in short State law.
Austin further asserted jurisprudence is concerned with what law is, not what
it ought to be. To him “… with the goodness or badness of laws
jurisprudence has no immediate concern”. Thus, Austin made a clean
departure with the natural philosophy. For emphasis and clarification, Austin
made a distinction between ‘positive’ and ‘positive law’. To him the word
“positive” shows that bthe law so described “flows from human sources”,
while the term “positive law” is law set by a sovereign in an independent
society.

He then distinguished between “law properly so called” and “laws improperly

so called.”

i.) Law properly so called

Law properly so called is a rule addressed to, and for the guidance of
intelligent beings by an intelligent being having power over him. Thus, law
properly so called includes God’s law to men, and men’s law to other men.
Law properly so called is a command and are distinguished from other
expressions of desire such as a wish or a prayer by the sanction, i.e an evil or
pain imposed on the addressee if the command is disregarded. By excluding
“laws improperly so called” from his theory, Austin was able to avoid all
those laws which have caused other jurists considerable problem in their
attempt to define law. This he does by asserting that positive law is that law
which is set by political superiors in an independent political society; thereby
demarcating his area of study from other human laws, such as the
commands of parents to children and of masters to servants, which he then
calls “laws not set by political superiors”.

In this regard, the Nigerian Constitution being entirely written and enacted
law can be classified as positive law. It has been argued that “even though
some parts of it are not enforceable against the sovereign or part of the

2
Austin, The Uses of the Study of Jurisprudence
sovereign, it is nonetheless positive law since it is the constitution itself that
stipulates that such parts are unenforceable” 3. Be that as it may, Austin sees
command as a critical component of law and his reason is that command and
duty are correlative terms; and whenever a command is signified, a duty is
imposed. According to Austin, there are four elements of positive law that is
law properly so called namely, command, sanction, duty and sovereignty.
Law, to Austin, is a command of the sovereign. Every positive law most flow
from a determinate author. On sanction, Austin is of the view that the power
to inflict penalty for disobedience is the very essence of a command. The
view of Austin is that it is the sanction alone that induces men to obey law.
Austin believed that any sovereign body must have the characteristics of
illimitability and unity which is not really practicable in the real world.

ii.) Laws Improperly so Called

a) Laws by analogy- this category covers issues such as matters of

opinion, e.g. honour, fashion, etiquette, and also international law,
which he also termed “positive, morality.”
b) Laws by metaphor, e.g., scientific laws such as the law of gravity.

One advantage of Austin’s theory is that he gave a simple a clear definition

of law. He avoided confusion by separating law from morality. His theory has
an important and universal truth-law is created and enforced by the state.

Difference between Austin and Bentham Theories

1. Bentham was against the idea that the Holy Bible could constitute a
source of law, he believe that it was impossible to know the will of God,
whereas, Austin regarded the Holy Bible as a revelation of the law of
God and it is a primary source of moral rules.
2. The definition of the term sovereignty as provided by Austin talks
about external and internal sovereignty while Bentham only spoke
about the internal aspects of sovereignty.
3. Austin posited that there cannot be a limitation on the authority of the
sovereign while Bentham was of the position that a sovereign may by
its own will put limits on its sovereignty by entering into agreement
with external agencies.
4. Bentham and Austin also disagreed on common law. Common law was
defined by Austin as law made by the sovereign through their
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Chapter II of the Constitution of the Federal Republic of Nigeria 1999 (as amended)
 delegates who are judges. Austin reasoned that judges are mere
agents of the sovereign authorized to adjudicate disputes and to
supply a rule where one is required. Austin, unlike Bentham, accepted
the process of judicial law making and considered it as immensely
beneficial and even absolutely necessary.
5. Also, Austin restricted himself to negative aspect of sanctions.
Bentham believed that every man wants to increase pleasure and
diminish pain, and thus, to encourage people to be more law abiding
and discourage people from breaking the law, there should be the
inclusion of awards as well as punishment for people depending on
their behavior. If we must agree with Bentham then, people should be
compensated for not committing crimes.

iii) Criticisms of Austin’s Theory

a) Law as command – this presupposes the order of a determinate person

and as a law emanates from the ever changing multitude which
comprises the political machinery of the state, it cannot be treated as
the command of any one in particular. Duguit asserts that the notion of
command is inapplicable to modern social legislations, which bind the
state itself rather than the individuals. Austin’s reply is that there can
be a command where some organ of the sovereign is commanded.
Kelsen regards the concept of command as introducing an inadmissible
psychological element into the pure norm of law. Bryce, Grey, Dicey
and others have criticized the description of such legal relations as
legal powers, rights, privileges as sovereign commands. They think
that private rights, administrative acts, declaratory laws cannot be
characterized as commands.
b) Sovereignty – the notion that sovereignty is indivisible is falsified by
Federal constitutions and Austin’s attempt to locate the sovereign in
the U.S.A. was an unhappy venture. The notion of illimitability is not
sustainable, even habitual obedience in revolution setting.
c) Sanctions – Austin’s insistence on sanctions as a mark of law has
frequently been objected as to concealing or distorting the real
character and functions of a law in a community. Sanctions place
undue emphasis on fear and do not explain why law is changed. The
essence of a legal system is in the inherent fact, based on various
psychological factors, that law is accepted by the community as a
whole as binding. It is because a rule is regarded as obligatory that a
 measure of coercion may be attached to it; it is not obligatory because
there is coercion.

(C) Hans Kelsen

In his Pure Theory of Law, Kelsen set out to expose “law as a science
divorced from other fields or disciplines.” Most philosophers emphasized that
jurisprudence must study the relationship between law and justice, but
Kelsen wishes to free “the law from the metaphysical mist with which it has
been covered at all times by the speculation on justice or by the doctrine of
jus natural.” He desires to create a pure science of law, stripped of all
irrelevant materials and to separate jurisprudence from other social sciences
as rigorously as did the analysts like Austin and Hart. He also attempted to
separate the realm of jurisprudence from that of natural science. The latter
deals with cause and effect, e.g. Newton attempted to formulate a general
principle, which would describe what actually does happen to the apple when
its stalk is loosened from the tree. Law, on the other hand, does not attempt
to describe what occurs but rather to prescribe certain rules, to lay down
standards of action which men ought to follow – if X breaks the criminal law
then he ought to be punished.

The Pure Theory thus desires in positivist and scientific spirit, to

analyse the concept of positive law, its structure and typical forms excluding
all elements foreign to it such as justice or sociology. Kelsen regarded a
legal system as a normative system. Norms are regulations setting forth how
men are to behave and positive law is simply a normative order regulating
human conduct in a specific way. A norm is an “ought” proposition; it
expresses not what is or is done, or must be, but what ought to be, given
certain conditions. It cannot be proved to exist factually, but simply to be
derivable from other norms, and is therefore, valid in that sense. This
derivation does not continue ad infinitum because is an ultimate norm
postulated on which all others rest. This ultimate norm is variously called the
basic, fundamental or grundnorm. The basic norm is extra-legal since it does
not rest upon another legal norm. it is selected according to Kelsen, on the
principle of efficacy, that is to say, the legal order as a whole must rest on an
assumption that it is by and large efficacious, in the sense that in the main
people do conduct themselves in conformity with it. The basic norm is non-
positive and so it is not the concern of legal science. It is not created as any
other positive legal norm is created in a legal procedure by a law-creating
organ. It is thus not valid because it is created in a certain way by a legal act
but it is valid because it is presupposed to be valid. Without the
presupposition, no human act could be interpreted as legal, especially as a
norm-creating act.

All the norms together make a legal order. The legal order is therefore
a system of norms. The legal order consists of a hierarchy of norms each
deriving its validity from a higher norm and every norm tracing its validity to
the basic norm. The unity of these norms is constituted by the fact that the
creation of one norm – the lower one, is determined by another, the higher,
the creation of which is determined by a still higher norm.

The Principle of Legitimacy

The validity of legal norms may be limited in time, and it is

important to note that the end as well as the beginning of this validity is
determined only by the legal order to which they belong. They remain
valid as long as they have not been invalidated in the way, which the
legal order itself determines. This is the principle of legitimacy.

This principle, however, holds only under certain conditions. It fails

to hold in the case of revolution, this word understood in the most general
sense as to cover coup d’etats.

According to Kelsen, a revolution occurs whenever the legal order is

nullified and replaced by a new order in an illegitimate way, this is, in a
way not prescribed by the legal order itself. It is irrelevant whether or not
this replacement is effected through a violent uprising against those
individuals who so far have been the “legitimate” organs competent to
create and amend the legal order. It is equally irrelevant whether the
replacement is effected through a movement emanating from the mass of
the people or through action from those in government positions. From a
juristic point of view, the decisive criterion of a revolution is that the order
in force is overthrown and replaced by a new order in a way, which the
former had not itself anticipated. In applying the principle of effectiveness
Kelsen said: “according to international law victorious revolutions or
successful coup d’etats are to be interpreted as procedures by which a
national legal order can be changed.” Both events are, viewed in the light
of international law as law-creating facts. To assume that the continuity of
national law, or what amounts to the same the identity of the state, is not
affected by revolution or coup d’etat, as long as the territory and the
population remain by and large the same, is possible only if a norm of
international law is presupposed recognizing victorious revolutions and
successful coup d’etat as legal methods of changing the constitution. He
 said that it is because modern jurists, consciously or unconsciously
presuppose international law as a legal order determining the existence of
the state in every respect, according to the principle of effectiveness that
they believe in the continuity of national law and the legal identity of the
state, in spite of a violent change of constitution.

The chief merit of Kelsen’s work is its critical force since he ably shows
that many writers had clothed with glory the first principles of jurisprudence,
which only are their own prejudices. He reacted with disgust at those who
object to state regulation of labour conditions because it interferes with the
neo-Hegelian idea that law must give increasing freedom to the individual
will and he described it as “politics masquerading in jurisprudence.” His idea
of the pure sciences of law stressed the freeing of the law from the
metaphysical mist with which it had been covered at all times by the
speculation on justice or by the doctrine of natural law. Hence Kelsen’s
impartiality in the conflicting social problems of modern society led
conservatives to call him a dangerous radical and the revolutionaries to dub
him a reactionary.

II) Criticisms and Assessment of Kelsen’s Contributions

Kelsen has been criticized greatly on the claim of his theory of purity.
The whole notion of effectiveness or ineffectiveness brings in moral, political,
psychological and sociological factors. If the validity of the grundnorm
depends on such variables, then Kelsen’s theory ceases to be “pure” – not
only would the grundnorm be tainted but so also would all other norms,
which derive their validity from the grundnorm. Also, as it is the behavior of
people which decides the effectiveness of a legal order, Kelsen must
remember that people’s behavior patterns are inevitably influenced and
motivated by political, moral, economic and sociological factors.

Kelsen gives no explanations as to his criterion of “by and large”

effective. If legal systems are to be based on effectiveness, then mere
analytical jurisprudence is insufficient to explain “law” in its fullest meaning,
and reference must be made to the approaches of the sociological, historical,
realist and even the natural law schools of jurisprudence.

There are many problems relating to the grundnorm and revolution. In

the light of comparatively recent events in some countries including Nigeria,
Kelsen’s theory has been examined in situations where the old order has
been overthrown and its grundnorm is no longer effective, yet the revolution
has not progressed far enough to have provided the new effective
grundnorm and many problems are posed to the officials as to which
grundnorm is applicable:

a. It is impossible to test efficacy immediately after the revolution has

occurred, especially if its success is still in the balance, hence, the
court can only look to the future and guess as to the efficacy of the
new grundnorm.
b. The court is in no position to make factual judgments as to efficacy
since its own decision might be a material factor upon which the
efficacy of the new order depends.
c. In Kelsen’s terms, the Judge’s decision cannot be determined by law –
his decision must therefore consist of non-legal factors such as political
considerations, moral viewpoints etc. an indication of absence of
purity.

(D)H.L.A. Hart

Prof. Hart is regarded as the leading contemporary representative of

British positivism. According to Hart, “Where there is law,” he says, “there
human conduct is made in some sense non-optional or obligatory.” Thus the
idea of obligation is at the core of a rule of law or norm. To some extent, he
agreed with Austin on the definition of law but differs from Austin in several
aspects:

(a) To Hart, the similarity between a rule of law and a rule of morality lies
in the fact that both of them are social practices and regulate human
conduct in a given society. But unlike rules of morality, rules of law
possess “ a systemic quality”. They are two types, viz the “primary”
and the “secondary” rules.

(i) Primary rules

These are “primary duty-imposing” rules such as the rules of
criminal law and the law of torts.
(ii) Secondary rules
These are “secondary power-conferring” rules, e.g., the laws
facilitating the making of contracts, wills, marriages and trusts,
others may lay down rules spelling out the composition and
powers of courts, legislatures, boards and similar “official”
bodies. Of course, these secondary rules relate intimately with
the primary rules in that they lubricate and facilitate the
functioning of the latter.
 (b)A fundamental difference between Hart and the classical and classical-
oriented positivists led by Austin, is that Hart postulates human
survival as one of the objectives of law, and, accordingly, unless
society is to be akin to a “suicide club” the legal orderings of a
community must embody certain inevitable prohibitions contained in
natural law theories. This is what he calls, a “minimum content of
natural law” which naturally enjoins an overlap of law and morality,
particularly in the area of acts acknowledged to be mala in se.

Even so, Hart does not concede that natural law is superior to State law or
that it is derived from morality, nor is there any logical link between law and
morality, even if in some instances morality may have actually exerted some
influence on the development of the law. His objective is to distinguish the
validity of law qua validity (as posited or assumed) from its immorality, like
Kelsen, Hart admits the lawlessness of custom and international law.

(c) He criticizes Austin’s command theory for its failure to include the
available or existing varieties of law, e.g. primitive laws.
(d)Austin could not regard primitive law or international law as “law” but
Hart draws a clear distinction between “set” of rules and a “system” of
“law”. Whereas, in primitive society one must wait and see whether or
not a given rule will eventually be accepted by its subjects, having a
basic rule of recognition. One can say even before a rule is made that
it will or will not be valid when made depending on whether it conforms
to the requirements of the rule of recognition or not. But according to
Hart, despite these differences of form and structure, there are
essential similarities of systems and functions between primitive and
developed systems of law which makes it appropriate to accept that
“primitive law” and “international law” are sufficiently analogous to the
more central case of the developed modern municipal legal systems to
persuade the jurist to accept them as laws.

Criticisms of Hart’s Theory

1. Hart’s concept of law contains nothing to provide a theory of
adjudication which is vital to the smooth running of a judicial
system.
2. His “rule of recognition” does not assist the judge to find applicable
principles in case where rules fail or are non-existent.
3. His model of positivism represents a fundamental shift away from
the tenets of classical positivism since it accommodates natural law
as a source of law, e.g.,
(a) By accepting “permissive” as well as mandatory sources of law,
(the permissive sources embracing principles) into his theory;
and
(b)By incorporating a “minimum content of natural law” into his
concept of valid law. This suggests that without this minimum
content, a properly enacted or posited law will not be valid law.
Does this mean that such law may be disobeyed or even
destroyed? By this pontification, it would seem that only a thin
line now separates analytical positivism from natural law
philosophy, at least from the Hartian standpoint.