1.    
Introduction

Positivism
is understood as the view that what counts as law in a particular society is
fundamentally a matter of social fact, and that what the law is and what the law ought to be are separate
questions.1 This
submission presents a brief account of the philosophical tradition of Classical
Legal Positivism (CLP). It begins with an analysis of the main strands of
philosophy that seem to have laid the groundwork for CLP. Consequently, the
contribution of the main proponents of this tradition, Jeremy Bentham and John
Austin, is discussed. The submission concludes with an analysis of visible
applications of the theory as well as its critique.

We Will Write a Custom Essay Specifically
For You For Only $13.90/page!


order now

1.1. 
Philosophical
Antecedents

On
a very general level, the foundations of CLP can be traced back to unfettered
legislative capacity, which had roots in the modern concept of sovereignty.
This approach was secular and positivist.2
Paying emphasis to this concept of sovereignty, therefore, involved a reduction
in the regard attached to natural law.3
More particularly, however, the following philosophical trends paved the way
for CLP.

Firstly,
there was the ‘dethroning’ of natural law in the modern period which efforts
were pioneered by the method of David Hume. Hume’s position was that true
empiricism really involved the rejection of natural law as a system of norms
since “the validity of normative rules cannot normatively be treated as an
objective fact.”4

Accordingly,
to replace the role that natural law played, the principle of utility was to be
taken up and expounded by Jeremy Bentham. By rejecting both natural law and
subjective values and replacing these by standards based on human advantages,
pleasures and satisfactions, he sought to provide a signpost by which
legislators might direct the external welfare of that society.5
Thus, his ‘science of legislation’ was for Bentham a branch of morals, being
the principles upon which men’s actions were to be directed to the greatest
quantity of possible happiness by rules of a permanent kind, as distinguished
from private morals.

Secondly,
the beginning of the weakening of the foundations of natural law might also be
located in the implication from William of Occam’s fourteenth century
voluntarism that law is pure will, with no foundation in the nature of things.6
Since law is here viewed as a command or directive, it has thus been said to be
the intellectual equivalent of the positivistic idea in the modern period that
law has its foundations in the will (command) of a sovereign, as the state.

Thirdly,
in the case of Thomas Hobbes, natural law was by him ‘whittled down from a
system of norms to a mere statement of human impulses explaining the need for a
sovereign power in human society’,7
whereas for Jean-Jacques Rousseau, it became a mere formal category to justify
a belief in inalienable sovereignty.

Fourthly,
Bentham’s analysis was in response to the system of common law as documented in
the accounts of Sir William Blackstone, particularly the latter’s “uncritical
acceptance of the natural law components of common law”.8

1.2. 
Context

The
dominant feature of intellectual and social discourse during the lifetimes of
the mentioned philosophers was “one of idealism and unswerving optimism in the
potential of science and the capacity of human reason. Above all else the age
was dominated by an intense enthusiasm for progress.”9

More
specifically, the rise of science in the modern period was associated with the
emergence of modern empiricism, an “epistemology that emphasizes the importance
of observation and experience in verifying claims to knowledge”, otherwise
referred to as rationalism.10

This
approach (applied to the wider philosophical and sociological movement of that
time) was the basis to the philosophy of legal positivism.

2.    
The
Core Content of Classical Legal Positivism

According
to Bentham made two major contributions to Western thought: his development of
his idea of legal positivism and his ethical and philosophical philosophy of
utilitarianism.11
The former is what is described as the “command theory of law”, which was
eventually popularized by John Austin. Applying the themes discussed above,
this philosophy thus, naturally, relates to a view of law as created or posited
by political figures, as distinct from a view of law as being dependent on an
abstract standard.12 Nevertheless,
at the core of Bentham’s and Austin’s work is a focus on the place of law
within human political society.

Bentham
defined a 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 by
persons, who are or are supposed to be subject to his power, with sanctions
attached.13

Austin
on the other hand, in his lecture ‘The Province of Jurisprudence Determined’,
defined law as a rule laid down for
the guidance of an intelligent being by an intelligent being having power over
them.14

2.1. 
Similarities
between Bentham’s and Austin’s Positions

 Both John Austin and Jeremy Bentham’s theories
revolve around three main elements, which are;

2.1.1.    
Sovereignty

John
Austin noted that a society which does not have a political sovereign does not
have law in the strict sense of positive law. Austin was of the position that
where there is no sovereign, there is no independent political society, with
the vice versa also being true.15According
to Bentham, a sovereign is the highest superior body which does not owe any
obedience to any other body. It is the sovereign which claims habitual
obedience from the people living in a politically organized group.

 

2.1.2.    
The
command

Austin
pointed out that positive law is the result of a sovereign’s command. A command
is an imperative that creates a duty
by the presence of sanction which would
follow if there is an incidence of non-compliance.16
Thus without the threat of sanction, Austin insisted, law would be more than a
series of official requests.17
For both Bentham and Austin, it was the threat of sanctions that converted
these requests and suggestions into law.

Austin
thus distinguished the commands of the law from commands of God, the unofficial
commands of society’s values, or the commands of anyone else, even if backed by
threats.18

2.1.3.    
Sanction

From
John Austin’s perspective, law is the command of sovereign backed up by a
sanction. The purpose of the sanction is to enforce obedience, and the
existence of this law does not depend on moral or any metaphysical or moral
concept.

2.2. 
Customary
Law

On
a notably grey area, Austin found himself forced to take on the task of
explaining how custom could ever be law in a system in which law was
understood, at least by him, as the explicit and sanction backed command of the
sovereign. Austin stated that custom is not law by itself, but becomes law only
upon it being duly adopted by judges, who are not only authorized by the
sovereign to do so, but are also authorized by the sovereign to threaten or
impose sanctions in the event of non-compliance.19

2.3. 
Differences
between Bentham’s theory and Austin’s theory on legal positivism  

(i)            
Austin’s sovereign was
postulated as an illimitable, indivisible entity. Austin envisioned one
all-powerful sovereign, but Bentham saw the distinction between social
desirability and logical necessity. Bentham accepts divided and partial
sovereignty.20Bentham
discussed the legal restriction that may be imposed upon the sovereign power.

(ii)          
Sanctions played a less
prominent part in Bentham’s theory than they did in Austin. Bentham had the
thought of undertaking a more detailed, less crude taxonomy of motivating
forces than Austin was. Bentham thought a sovereign’s commands would be law
even if supported only by religious or moral sanctions.21

.

(iii)         
Bentham’s theory of law
is an imperative theory in which the key concepts are those of sovereignty and
command. This is also like Austin’s theory, however the key difference is that
Bentham expounds those ideas with far greater subtlety and flexibility than
Austin and illuminates aspects of law neglected by him.22

 

3.    
Critique

3.1. 
Criticism

Several
critiques may be advanced against Jeremy Bentham’s and John Austin’s command
theory of law, particularly John Austin’s conceptualization.

Firstly,
John Austin presents the sovereign as absolute, and not subject to any
limitations. Austin’s sovereign is highly impractical and unrealistic as most
modern legal systems contain constitutional laws that limit the power of the
sovereign.23

Secondly, recognising the incongruity, Austin proposed
that sovereignty, as explained, was based on habitual obedience. Both Hans Kelsen24
and HLA Hart25
criticized Austin’s proposition of habit of obedience as criterion, contending
that it fails to explain the continuity of legal authority. Kelsen comments
that the continuing existence of a legal authority is not determined by the maker
of the law or their existence but rather the continuing existence of a system
of norms of which the enacted norm has come to form a part.26

Thirdly,
Austin presented the sovereign as indivisible, a notion which has been
disproved by the rise confederations of states. Unlike federalist states such
as the United States and Germany where there is a clear sovereign in the shape
of the central government, the situation is a bit more problematic in the
former category.27
Austin’s view of an untrammelled sovereign that is not subject to external
legislation has been challenged by the creation of international entities such
as the European Union.28
In summary, the complexities of a modern legal system render Austin’s
propositions too primitive and simplistic.29

Fourthly,
Hans Kelsen critiqued Austin’s command theory and indicated that, “in many
societies, it is hard to identify a “sovereign” in line with Austin’s allusion.
This is due to the fact that the focus on a sovereign makes it difficult to
explain the continuity of legal systems: a new ruler will not come in with the
kind of “habit of obedience” that Austin sets as a criterion for a system’s
rule maker.30
Kelsen proceeds to mention that the concept of continuity a legal obligation
does not exist because the maker of the obligation exists, it is not tied to
the person who enacted the norm

Fifthly,
Austin’s characterization of the law as a command backed by sanctions fails to
encompass all forms of law. While some forms of law such as criminal law may be
considered as orders which are enforced by the threat of punishment other forms
of law such as the law of succession, marriage and the law of contract cannot
be characterized as such.31
The proposition by both Bentham and Austin that sanctions are an essential
characteristic of law does not adequately explain areas of law beyond criminal
law.32

Sixthly,
Jeremy Bentham and John Austin advocate for a rigid separation of law and
morals which may lead to the recognition and implementation of laws that are
manifestly unjust.33
This approach has been criticized as it fails to appreciate the internal morality
of a law.34
The separability of law and morality essentially validates legal systems that
are inherently immoral such as the Nazi legal system. 35

3.2. 
Relevance
and Application of the Command Theory

(i)            
Despite postulating that
international law is not really law for the lack of a sovereign,36
John Austin’s position was true about the legal systems of his time, as there
was no robust framework of law among states in the sense that there is today.37

(ii)          
The theory seems tenable
if one is to assume that Austin meant the totality of the law making institutions
as the ‘sovereign’ and not individualistic power. In this construction of
Austin, it is argued that Austin is misquoted, and that he always meant the
notion of institutional authority and never the individuals who head these
institutions.38
This would seem to allow for a wider acceptance and application of law in
contemporary times.

(iii)         
Despite the criticisms
advanced by Hart against CLS’s narrow definition of law, CLS provided a good
foundation to Hart’s own views on the fundamentals of a legal system. Such duty
laden laws as described by Bentham and Austin, are what HLA Hart refers to as ‘primary rules of obligation’, which
generally concern themselves with obligations to perform, or abstain.39
Hart notes that these laws are not in themselves solely sufficient to order a
society and must be supplemented by secondary rules, which affect the
operations of the primary rules.40

(iv)         
The theory seems to have
found application in the idea of a legal system that underpinned British
colonial occupation of foreign lands, and in particular, Kenya.  Relying on the philosophy that a proper legal
system can only be established if there is a juridical sovereign, colonial
authorities displaced the existing legal order (there was no written law or
formally elected ruler in the African set-up), replacing it with a new legal
system that could legitimize the aims of foreign occupation. In this sense,
African society was perceived to be pre-political, which has been termed a kind
of social-evolutionist bias. The intended aim was achieved through the
enactment of the Foreign Jurisdictions Act of 1890, which effectively extended
the power of the crown to set aside and administer lands occupied abroad. Under
this legislation, the British imperial authority was further able to exercise a
wide range of powers in all manner of overseas territories.41
This was later followed by an advisory opinion handed down by the Law Officers
of the Crown on 13 December 1899 to the effect that the Foreign Jurisdiction
Act of 1890 had, in imperial law, bestowed upon the ‘sovereign’ the power of
control and disposition over waste and unoccupied land in protectorates where
there was ‘no settled form of government and where land had not been
appropriated…”42

 

4.    
Conclusion

It
has been observed that classical legal positivism was an influential idea of
viewing law at the time of its development and popularization. However, it has
been shown that this position, the command theory of law, has weathered intense
and sustained criticism, even from the positivist school of thought.
Nonetheless, it has been shown that in contemporary times, the theory is not a
sound way of viewing the actual
nature of legal systems.

1 Liam Herrick, Classical Legal Positivism and
Utilitarianism, 126.

2 Freeman MDA, Lloyd’s Introduction to Jurisprudence,
Oxford University Press, Sweet and Maxwell, Eighth Edition, 2014, 195.

3 For instance, See
Freeman MDA, Lloyd’s Introduction to
Jurisprudence, Oxford University Press, Sweet and Maxwell, Eighth Edition,
2014, 196.

4 Cf. Bodin, Six Books of the Republic (ed. Tooley),
Ch. 1, as cited in Freeman MDA, Lloyd’s
Introduction to Jurisprudence, Oxford University Press, Sweet and Maxwell,
Eighth Edition, 2014, 196.

5 Freeman MDA, Lloyd’s Introduction to Jurisprudence,
Oxford University Press, Sweet and Maxwell, Eighth Edition, 2014, 197.

6 Liam Herrick, Classical Legal Positivism and
Utilitarianism, 126.

7 “It is manifest that
Law in general, is not Counsell, but command; but only of him whose Command is
addressed to one formerly obliged to obey him.” Thomas Hobbes, Leviathan, K.R. Minogue ed., Dent, London,
1973.

8 Liam Herrick, Classical Legal Positivism and
Utilitarianism, 130.

9 Liam Herrick, Classical Legal Positivism and
Utilitarianism, 128.

10 Liam Herrick, Classical Legal Positivism and
Utilitarianism, 128.

11 Liam Herrick, Classical Legal Positivism and
Utilitarianism, 127.

12 Liam Herrick, Classical Legal Positivism and
Utilitarianism, 129.

13 H.L.A Hart, J. Bentham,
Of Laws in General, ed (London:
Athlone Press,1970), ch.1, para.1)

14 John Austin, The Province of Jurisprudence Determined
, Hackett, Indianapolis, 1998)

15 John Austin, Lectures on Jurisprudence or the Philosophy
of Positive Law (Robert Campbell ed.) London, John Murray, 5th
ed. 1895

16 John Austin, Lectures
on Jurisprudence (2002, Vol 1, Bloomsbury Academic) 135

17 Jules Coleman &
Brian Leiter, Legal Positivism, in A
COMPANION TO PHILOSOPHY OF LAW AND LEGAL PHILOSOPHY 228,231 (Dennis Patterson
ed.1996).

18 AUSTIN, THE PROVINCE OF
JURISPRUDENCE DETERMINED, supra note 12
at 24 & 25

19 AUSTIN, THE PROVINCE OF
JURISPRUDENCE DETERMINED at 34-36

20 Of Laws in General p.18 n.6. On the role of judges (and juris) see
O Ben-Dor (2007)

21 Ibid., p.66 and post, 280          

22
Hart,op.cit.,pp.108,227-242

23 Freeman MDA, Lloyd’s
Introduction to Jurisprudence (8th edn, Sweet & Maxwell 2014),
257.

24 Hans Kelsen, ‘The Pure
Theory of Law and Analytical Jurisprudence’, Harvard Law Review, Vol. 55, 1941, 54-66.

25 HLA Hart, The Concept of Law, 55.

26 Hans Kelsen, General Theory of Law and State, Harvard
University Press, Cambridge, 1945, 32.

27Freeman MDA, Lloyd’s Introduction to Jurisprudence, 257.

28Freeman MDA Lloyd’s Introduction to Jurisprudence,
259.

29 HLA Hart, The Concept of Law, 80.

30 Hans Kelsen, ‘The Pure
Theory of Law and Analytical Jurisprudence’, Harvard Law Review, Vol. 55, 1941, 54-66.

31 HLA Hart, The Concept of Law, 27.

32 Liam Herrick, ‘Classical
Legal Positivism and Utilitarianism’, 136.

33Freeman MDA, Lloyd’s Introduction to Jurisprudence,
262.

34 Lon Fuller, ‘Positivism and Fidelity to Law: A Reply to
Professor Hart’, Harvard Law Review, Vol. 71, No. 4 (Feb., 1958), pp. 630-672,
660.

35 Lon Fuller, ‘Positivism and Fidelity to Law: A Reply to Professor Hart’, Harvard
Law Review, Vol. 71, No. 4 (Feb., 1958), pp. 630-672, 660.

36 John Austin, 1832, The Province of Jurisprudence Determined,
Cambridge University Press, Cambridge, 123.

37 See Munyao, Allan, ‘The
Normative Irrelevance of Austin’s Command Theory in International Law, Mimbar
Hukum 28. 569. 10.22146/jmh.16694, 2016, accessed at https://www.researchgate.net/publication/321942516_THE_NORMATIVE_IRRELEVANCE_OF_AUSTIN%27S_COMMAND_THEORY_IN_INTERNATIONAL_LAW , on 10th
January 2018.

38 Cottrell Rogerotterrell,
2003, The Politics of Jurisprudence: A
Critical Introduction to Legal Philosophy, LexisNexis.

39 HLA Hart, The Concept of Law, 91.

40 HLA Hart, The Concept of Law, 94.

41 This was followed by
the application of English law as the basis of administration and determination
of civil and criminal matters in such territories.

42 See H.W.O.
Okoth-Ogendo, ‘The Tragic African Commons: A Century of Expropriation,
Suppression and Subversion’, Working Paper No. 24, University of the Western
Cape, 2002,6.