1.

    IntroductionPositivismis understood as the view that what counts as law in a particular society isfundamentally a matter of social fact, and that what the law is and what the law ought to be are separatequestions.1 Thissubmission presents a brief account of the philosophical tradition of ClassicalLegal Positivism (CLP). It begins with an analysis of the main strands ofphilosophy that seem to have laid the groundwork for CLP. Consequently, thecontribution of the main proponents of this tradition, Jeremy Bentham and JohnAustin, is discussed. The submission concludes with an analysis of visibleapplications of the theory as well as its critique. 1.1. PhilosophicalAntecedents Ona very general level, the foundations of CLP can be traced back to unfetteredlegislative capacity, which had roots in the modern concept of sovereignty.

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This approach was secular and positivist.2Paying emphasis to this concept of sovereignty, therefore, involved a reductionin the regard attached to natural law.3More particularly, however, the following philosophical trends paved the wayfor CLP.Firstly,there was the ‘dethroning’ of natural law in the modern period which effortswere pioneered by the method of David Hume. Hume’s position was that trueempiricism really involved the rejection of natural law as a system of normssince “the validity of normative rules cannot normatively be treated as anobjective fact.”4Accordingly,to replace the role that natural law played, the principle of utility was to betaken up and expounded by Jeremy Bentham. By rejecting both natural law andsubjective values and replacing these by standards based on human advantages,pleasures and satisfactions, he sought to provide a signpost by whichlegislators might direct the external welfare of that society.

5Thus, his ‘science of legislation’ was for Bentham a branch of morals, beingthe principles upon which men’s actions were to be directed to the greatestquantity of possible happiness by rules of a permanent kind, as distinguishedfrom private morals. Secondly,the beginning of the weakening of the foundations of natural law might also belocated in the implication from William of Occam’s fourteenth centuryvoluntarism that law is pure will, with no foundation in the nature of things.6Since law is here viewed as a command or directive, it has thus been said to bethe intellectual equivalent of the positivistic idea in the modern period thatlaw 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 asystem of norms to a mere statement of human impulses explaining the need for asovereign power in human society’,7whereas for Jean-Jacques Rousseau, it became a mere formal category to justifya belief in inalienable sovereignty.

Fourthly,Bentham’s analysis was in response to the system of common law as documented inthe accounts of Sir William Blackstone, particularly the latter’s “uncriticalacceptance of the natural law components of common law”.81.2. ContextThedominant feature of intellectual and social discourse during the lifetimes ofthe mentioned philosophers was “one of idealism and unswerving optimism in thepotential of science and the capacity of human reason. Above all else the agewas dominated by an intense enthusiasm for progress.”9Morespecifically, the rise of science in the modern period was associated with theemergence of modern empiricism, an “epistemology that emphasizes the importanceof observation and experience in verifying claims to knowledge”, otherwisereferred to as rationalism.10 Thisapproach (applied to the wider philosophical and sociological movement of thattime) was the basis to the philosophy of legal positivism.

2.    TheCore Content of Classical Legal PositivismAccordingto Bentham made two major contributions to Western thought: his development ofhis idea of legal positivism and his ethical and philosophical philosophy ofutilitarianism.11The former is what is described as the “command theory of law”, which waseventually popularized by John Austin. Applying the themes discussed above,this philosophy thus, naturally, relates to a view of law as created or positedby political figures, as distinct from a view of law as being dependent on anabstract standard.12 Nevertheless,at the core of Bentham’s and Austin’s work is a focus on the place of lawwithin human political society.Benthamdefined a law as an assemblage of signs declarative of a volition conceived oradopted by the sovereign in a state, concerning the conduct to be observed bypersons, who are or are supposed to be subject to his power, with sanctionsattached.13Austinon the other hand, in his lecture ‘The Province of Jurisprudence Determined’,defined law as a rule laid down forthe guidance of an intelligent being by an intelligent being having power overthem.142.

1. Similaritiesbetween Bentham’s and Austin’s Positions Both John Austin and Jeremy Bentham’s theoriesrevolve around three main elements, which are;2.1.1.

    SovereigntyJohnAustin noted that a society which does not have a political sovereign does nothave law in the strict sense of positive law. Austin was of the position thatwhere there is no sovereign, there is no independent political society, withthe vice versa also being true.15Accordingto Bentham, a sovereign is the highest superior body which does not owe anyobedience to any other body. It is the sovereign which claims habitualobedience from the people living in a politically organized group. 2.1.2.

    ThecommandAustinpointed out that positive law is the result of a sovereign’s command. A commandis an imperative that creates a dutyby the presence of sanction which wouldfollow if there is an incidence of non-compliance.16Thus without the threat of sanction, Austin insisted, law would be more than aseries of official requests.17For both Bentham and Austin, it was the threat of sanctions that convertedthese requests and suggestions into law. Austinthus distinguished the commands of the law from commands of God, the unofficialcommands of society’s values, or the commands of anyone else, even if backed bythreats.

182.1.3.

    SanctionFromJohn Austin’s perspective, law is the command of sovereign backed up by asanction. The purpose of the sanction is to enforce obedience, and theexistence of this law does not depend on moral or any metaphysical or moralconcept.2.2. CustomaryLawOna notably grey area, Austin found himself forced to take on the task ofexplaining how custom could ever be law in a system in which law wasunderstood, at least by him, as the explicit and sanction backed command of thesovereign.

Austin stated that custom is not law by itself, but becomes law onlyupon it being duly adopted by judges, who are not only authorized by thesovereign to do so, but are also authorized by the sovereign to threaten orimpose sanctions in the event of non-compliance.192.3. Differencesbetween Bentham’s theory and Austin’s theory on legal positivism   (i)            Austin’s sovereign waspostulated as an illimitable, indivisible entity. Austin envisioned oneall-powerful sovereign, but Bentham saw the distinction between socialdesirability and logical necessity. Bentham accepts divided and partialsovereignty.20Benthamdiscussed the legal restriction that may be imposed upon the sovereign power.

(ii)          Sanctions played a lessprominent part in Bentham’s theory than they did in Austin. Bentham had thethought of undertaking a more detailed, less crude taxonomy of motivatingforces than Austin was. Bentham thought a sovereign’s commands would be laweven if supported only by religious or moral sanctions.21.(iii)         Bentham’s theory of lawis an imperative theory in which the key concepts are those of sovereignty andcommand. This is also like Austin’s theory, however the key difference is thatBentham expounds those ideas with far greater subtlety and flexibility thanAustin and illuminates aspects of law neglected by him.22 3.    Critique3.

1. CriticismSeveralcritiques may be advanced against Jeremy Bentham’s and John Austin’s commandtheory of law, particularly John Austin’s conceptualization. Firstly,John Austin presents the sovereign as absolute, and not subject to anylimitations.

Austin’s sovereign is highly impractical and unrealistic as mostmodern legal systems contain constitutional laws that limit the power of thesovereign.23Secondly, recognising the incongruity, Austin proposedthat sovereignty, as explained, was based on habitual obedience. Both Hans Kelsen24and HLA Hart25criticized Austin’s proposition of habit of obedience as criterion, contendingthat it fails to explain the continuity of legal authority. Kelsen commentsthat the continuing existence of a legal authority is not determined by the makerof the law or their existence but rather the continuing existence of a systemof norms of which the enacted norm has come to form a part.26Thirdly,Austin presented the sovereign as indivisible, a notion which has beendisproved by the rise confederations of states. Unlike federalist states suchas the United States and Germany where there is a clear sovereign in the shapeof the central government, the situation is a bit more problematic in theformer category.27Austin’s view of an untrammelled sovereign that is not subject to externallegislation has been challenged by the creation of international entities suchas the European Union.28In summary, the complexities of a modern legal system render Austin’spropositions too primitive and simplistic.

29Fourthly,Hans Kelsen critiqued Austin’s command theory and indicated that, “in manysocieties, 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 toexplain the continuity of legal systems: a new ruler will not come in with thekind of “habit of obedience” that Austin sets as a criterion for a system’srule maker.30Kelsen proceeds to mention that the concept of continuity a legal obligationdoes not exist because the maker of the obligation exists, it is not tied tothe person who enacted the normFifthly,Austin’s characterization of the law as a command backed by sanctions fails toencompass all forms of law. While some forms of law such as criminal law may beconsidered as orders which are enforced by the threat of punishment other formsof law such as the law of succession, marriage and the law of contract cannotbe characterized as such.31The proposition by both Bentham and Austin that sanctions are an essentialcharacteristic of law does not adequately explain areas of law beyond criminallaw.

32 Sixthly,Jeremy Bentham and John Austin advocate for a rigid separation of law andmorals which may lead to the recognition and implementation of laws that aremanifestly unjust.33This approach has been criticized as it fails to appreciate the internal moralityof a law.34The separability of law and morality essentially validates legal systems thatare inherently immoral such as the Nazi legal system. 353.2.

 Relevanceand Application of the Command Theory(i)            Despite postulating thatinternational law is not really law for the lack of a sovereign,36John Austin’s position was true about the legal systems of his time, as therewas no robust framework of law among states in the sense that there is today.37(ii)          The theory seems tenableif one is to assume that Austin meant the totality of the law making institutionsas the ‘sovereign’ and not individualistic power. In this construction ofAustin, it is argued that Austin is misquoted, and that he always meant thenotion of institutional authority and never the individuals who head theseinstitutions.38This would seem to allow for a wider acceptance and application of law incontemporary times.(iii)         Despite the criticismsadvanced by Hart against CLS’s narrow definition of law, CLS provided a goodfoundation to Hart’s own views on the fundamentals of a legal system. Such dutyladen laws as described by Bentham and Austin, are what HLA Hart refers to as ‘primary rules of obligation’, whichgenerally concern themselves with obligations to perform, or abstain.39Hart notes that these laws are not in themselves solely sufficient to order asociety and must be supplemented by secondary rules, which affect theoperations of the primary rules.

40 (iv)         The theory seems to havefound application in the idea of a legal system that underpinned Britishcolonial occupation of foreign lands, and in particular, Kenya.  Relying on the philosophy that a proper legalsystem can only be established if there is a juridical sovereign, colonialauthorities displaced the existing legal order (there was no written law orformally elected ruler in the African set-up), replacing it with a new legalsystem that could legitimize the aims of foreign occupation. In this sense,African society was perceived to be pre-political, which has been termed a kindof social-evolutionist bias. The intended aim was achieved through theenactment of the Foreign Jurisdictions Act of 1890, which effectively extendedthe power of the crown to set aside and administer lands occupied abroad. Underthis legislation, the British imperial authority was further able to exercise awide range of powers in all manner of overseas territories.41This was later followed by an advisory opinion handed down by the Law Officersof the Crown on 13 December 1899 to the effect that the Foreign JurisdictionAct of 1890 had, in imperial law, bestowed upon the ‘sovereign’ the power ofcontrol and disposition over waste and unoccupied land in protectorates wherethere was ‘no settled form of government and where land had not beenappropriated…”42 4.    ConclusionIthas been observed that classical legal positivism was an influential idea ofviewing law at the time of its development and popularization.

However, it hasbeen shown that this position, the command theory of law, has weathered intenseand sustained criticism, even from the positivist school of thought.Nonetheless, it has been shown that in contemporary times, the theory is not asound way of viewing the actualnature of legal systems.1 Liam Herrick, Classical Legal Positivism andUtilitarianism, 126.

2 Freeman MDA, Lloyd’s Introduction to Jurisprudence,Oxford University Press, Sweet and Maxwell, Eighth Edition, 2014, 195.3 For instance, SeeFreeman MDA, Lloyd’s Introduction toJurisprudence, 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’sIntroduction 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 andUtilitarianism, 126.

7 “It is manifest thatLaw in general, is not Counsell, but command; but only of him whose Command isaddressed to one formerly obliged to obey him.” Thomas Hobbes, Leviathan, K.R.

Minogue ed., Dent, London,1973.8 Liam Herrick, Classical Legal Positivism andUtilitarianism, 130.9 Liam Herrick, Classical Legal Positivism andUtilitarianism, 128.10 Liam Herrick, Classical Legal Positivism andUtilitarianism, 128.11 Liam Herrick, Classical Legal Positivism andUtilitarianism, 127.

12 Liam Herrick, Classical Legal Positivism andUtilitarianism, 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 Philosophyof Positive Law (Robert Campbell ed.

) London, John Murray, 5thed. 189516 John Austin, Lectureson Jurisprudence (2002, Vol 1, Bloomsbury Academic) 13517 Jules Coleman &Brian Leiter, Legal Positivism, in ACOMPANION TO PHILOSOPHY OF LAW AND LEGAL PHILOSOPHY 228,231 (Dennis Pattersoned.1996).18 AUSTIN, THE PROVINCE OFJURISPRUDENCE DETERMINED, supra note 12at 24 & 2519 AUSTIN, THE PROVINCE OFJURISPRUDENCE DETERMINED at 34-3620 Of Laws in General p.18 n.6. On the role of judges (and juris) seeO Ben-Dor (2007)21 Ibid., p.

66 and post, 280           22Hart,op.cit.,pp.108,227-24223 Freeman MDA, Lloyd’sIntroduction to Jurisprudence (8th edn, Sweet & Maxwell 2014),257.24 Hans Kelsen, ‘The PureTheory 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, HarvardUniversity 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 PureTheory of Law and Analytical Jurisprudence’, Harvard Law Review, Vol. 55, 1941, 54-66.

31 HLA Hart, The Concept of Law, 27.32 Liam Herrick, ‘ClassicalLegal Positivism and Utilitarianism’, 136.33Freeman MDA, Lloyd’s Introduction to Jurisprudence,262.34 Lon Fuller, ‘Positivism and Fidelity to Law: A Reply toProfessor 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’, HarvardLaw 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, ‘TheNormative Irrelevance of Austin’s Command Theory in International Law, MimbarHukum 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 10thJanuary 2018.38 Cottrell Rogerotterrell,2003, The Politics of Jurisprudence: ACritical 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 bythe application of English law as the basis of administration and determinationof 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 WesternCape, 2002,6.