11 Legal positivist theory of rights

Dr. Viralaxmi Moganty

Table of Contents

1.Learning Outcomes

2.Introduction

3.Classical theories on legal positivism

4.Popular theories on legal positivism

5.Summary

1. Learning Outcomes

• This chapter attempts to deal with the positive philosophy of law the conventional law which is constructed by society
• By the end of doing with this module students understand the contribution of positivistic philosophers, exponents on jurisprudence and others to the development of law.

2. Introduction

Auguste Comte (1798-1857), a French philosopher developed a theory called positivism. Inventions in modern science attracted philosophers to find out philosophical truths in a scientific way; experimental way; through sense perception and verifiable method; but not in a intuitive way. Apart from this Francis bacon’s theory on inductive method of logic and, scientific reasoning made certain philosophers too to follow science and inductive method of logic. Further Comte wanted to study society in a scientific way. Later he studied society to in a scientific way to arrive at certain valid truths on study by experimental method. Auguste Comte was called as father of sociology.

Positivism is a philosophical theory states that knowledge is based on natural phenomena and their properties and relations. Thus, information derived from sensory experience, interpreted through reason and logic, forms the exclusive source of all certain knowledge. Positivism also holds that society, like the physical world, operates according to general laws. Introspective and intuitive knowledge is rejected; rejected metaphysics and theology. Positive philosophy of Comte argues that, much as the physical world operates according to gravity and other absolute laws, so does society, and he further developed positivism into a Religion of Humanity1. To Comte “from science come prediction; from prediction comes action” . Positivism is a philosophy of human intellectual development that culminated in science. Comte held that human development has to undergo through these three stages.’.

Prior to positivistic philosophy natural law theorists like Aquinas and Aristotle developed their theories before the advent of modern science and their theories of law and state based on virtue and morality; metaphysics; divine origin and virtue and morality.

Further, legal positivism is studied in two ways; by studying natural law and relating it authority or command and other by later positivist by studying law not as a command but thorough understanding the way it is practiced.

While Hobbes, Locke, Bentham and Austin are some of the theorists adhered to natural law based legal positivism. Nevertheless morality is no devoid of the theories of Bentham, Hobbes and Locke. But Hart and other modern theorists based held that law s not attached to morality but on the law that is in practice. Though John Austin followed Bentham his theory is not related to morality.

“Legal positivism” is defined as “the thesis that the existence and content of law depends on social facts and not on its merits”. And according to positivism, law is a matter of what has been posited (ordered, decided, practiced, tolerated, etc.); as we might say in a more modern idiom, positivism is the view that law is a social construction. The notion of law as a command lies at the heart of classical legal positivism as espoused by its two great protagonists; Jeremy Bentham and Austin are the most prominent legal positivists.

Bentham, Hobbes and Locke gave preference to law of command and to sovereign authority it took different position in the modern period. Instead of giving power to legislative functions recent thinkers like Hart; Kelsen and Raz focused on the power to law-applying institutions. In course of time recent theories also developed normative character of law as against coercive force of law. Further it is also held that legal positivism’s importance is not confined to the philosophy of law alone but also related to social theories of Marx, Weber, and Durkheim, and to most contemporary feminist scholars.

3. Classical theories on legal positivism

Modern period is a period of scientific advancement due to the inventions of Newton’s laws of gravitation; Helio centric theory of Copernicus; Boyle’s law of heating bodies and other subsequent inventions changed the human thinking in a rational and scientific way against superstition and dogma.

Legal positivism is largely developed by eighteenth-and nineteenth-century legal thinkers such as Jeremy Bentham and John Austin who in turn were influenced by empiricism and positivism of classical philosophers like Hobbes, Locke and Maine. Political thought of modern period is also called a reformative period as against renaissance period.By that time Luther from Catholic church and Calvin from Protestant church protested against the rule of papacy and put their efforts to have a direct relationship between individual and God. Further 17th century in England witnessed a rebellion from middle class against monarchy and “divine right” or rule of supreme authority in the name of God.

Thomas Hobbes (1588-1679) related theory of state with natural law that holds all men are born equal. But in a state of nature man is selfish, brutish and slavish to Hobbes. Hence men enter a contract to protect themselves from constant war in state of nature. Thus they also need a sovereign or a supreme rule to command over them and control them. A command thus regulates them and protects the people according to Hobbes. Hobbes was unhappy with the anarchic situation of Civil War in England; execution of Charles I and other religious disputes. To Hobbes: “Justice is the constant will of giving everymen his own” (Leivathan). His polices on state and law in the words of Coady:

“Hobbes’ outlook on morality and policies is very much that of a moralist; for him, morality is not irrelevant to political security and social peace nor is such security is indifferent to moral constraint, political power is a precondition to morality to function fully but there can be no secure political power which is not shaped by the moral dictates of natural law revealed by reason”.

Bentham later followed Hobbes theories on natural law and command for his legal positivism.

To John Locke too all men are equal following natural law. Locke is an empiricist, who sensed the need for rational philosophy and sense perception. Further he wanted to protect private property of propertied class. In his treatise on Essay concerning Human understanding, he refuted the divine right theory that is associated with Robert Filmer and his second treatise on Essay on the Law of nature provides for natural rights of man. Natural rights to life, liberty and right to property need to be protected by state. Individuals come into agreement through social contract to widen the scope of these rights. His theory of right to property is supported by ‘theory of labour’. State of nature is based on reason, equality and law. Natural law is a rational law. Hence legal positivism of Bentham is in this back drop of Natural theories of Hobbes and Locke.

3.1. Jermy Bentham (1748-1832)

Jeremy Bentham is an utilitarian philosopher. His analysis of human nature led him to believe that people tried to achieve the maximum amount of pleasure and happiness in their lives. He proposed a new way to judge whether a law was good or bad: the law should be evaluated by its utility to society as a whole. A truly just law provides “the greatest happiness for the greatest number” of people – this became a theory known as utilitarianism. This back drop in which Bentham legal philosophy developed is explained further by Priel:

“Imagine a powerful sovereign who issues commands to his or her subjects. They are under a duty to comply with his wishes. First, what sets legal positivism and natural law apart is a difference on the conceptual question of the relationship between law and morality. Natural lawyers believe that law or legality are necessarily connected to morality, whereas legal positivists deny that. The second claim tells a story about the historical development of legal positivism: according to the familiar story the classical legal positivists like Thomas Hobbes and Jeremy Bentham subscribed to the “command theory” of law according to which law is simply a command of a sovereign. By contrast contemporary legal positivists, following the highly influential account of Hart, have denied that law is a command and a more sophisticated, and more convincing, version of legal positivism.

Bentham in his Introduction to the Principles of Morals and Legislation held: “Nature has placed mankind under the governance of two sovereign masters, pain and pleasure7. Bentham’s legal positivism aimed at legal reforms. Bentham developed early legal positivism of Hobbes and Locke’s theories based on Natural law and moral theory. And according to him consistent practice would yield results in legal theory by providing justification for social, political, and legal institutions.

3.1. A. Bentham on Law, Liberty and Government

Bentham’s liberty may be considered as “negative” liberty—freedom from external restraint or compulsion; one is not to be hindered by others. Bentham denies that liberty is “natural” (in the sense of existing “prior to” social life and thereby imposing limits on the state) or that there is an a priori sphere of liberty in which the individual is sovereign. In fact, Bentham holds that people have always lived in society, and so there can be no state of nature (though he does distinguish between political society and “natural society”) and no “social contract” (a notion which he held was not only unhistorical but pernicious). Nevertheless, he does note that there is an important distinction between one’s public and private life that has morally significant consequences, and he holds that liberty is a good—that, even though it is not something that is a fundamental value, it reflects the greatest happiness principle says, Williams.

Law according to Bentham by its very nature is a restriction of liberty and painful to those whose freedom is restricted. If state-control is limited the individual is free. Law is necessary to social order and good laws are clearly essential to good government. And it is held that more than Locke, Bentham saw the positive role to be played by law and government, particularly in achieving community well-being. To the extent that law advances and protects one’s economic and personal goods and that what government exists is self-government, law reflects the interests of the individual.

Bentham said Mankind was governed by two sovereign motives, pain and pleasure; and the principle of utility recognized this state of affairs. The object of all legislation must be the “greatest happiness of the greatest number.” He deduced from the principle of utility that, since all punishment involves pain and is therefore evil, it ought only to be used “so far as it promises to exclude some greater evil.”

As a critic Bentham in his Rationale of Judicial Evidence (1827) he described the methods that a court should use to get at the truth as quickly as possible; and in the Essay on Political Tactics (1791) he described what he considered the most effective forms of debate for a legislative assembly—an account based largely on the procedure of the House of Commons. In these works and in others Bentham was concerned to discover what makes for efficiency. He defined efficiency in terms of happiness. Bentham’s assumptions about what makes for happiness are often quite ordinary and sensible; insist that happiness is not to be defined in terms of pleasure and is not to be measured. Whatever is excellent, ingenious, and original in Bentham need not depend on the “felicific calculus” and “the greatest happiness of the greatest number” says Plamentaz

3.2. John Austin:

Austin followed Hobbes’s and Bentham’s conception of law as a sovereign command, whose authority is recognized by most members of a society; the authority of which is enforced by the use of sanctions, but which is not bound by any human superior. The criterion for validity of a legal rule in such a society is that it has the warrant of the sovereign and will be enforced by the sovereign power and its agents.

The three main tenets of Austin’s Command Theory are:

• laws are commands issued by the un commanded commander, i.e. the sovereign;
• such commands are enforced by sanctions; and
• a sovereign is one who is obeyed by the majority.

Austin considered the law as commands from a sovereign that are enforced by threat of sanction. In determining ‘a sovereign’, Austin recognized it is one to whom society obeys habitually. This sovereign can be a single person or a collective sovereign such as Parliament, with a number of individuals, with each having various authoritative powers. Austin’s theory is also somewhat brief in his explanations of Constitutions, International Law, non-sanctioned rules, or law that gives rights. Insofar as non-sanctioned rules and laws that allow persons to do things, such as contract law, Austin said that failure to obey the rules does result in sanctions; however, such sanctions are in the form of “the sanction of nullity.”13 Austin’s view is that R is legally valid (that is , a law) in a society S if and only if R is commanded by the Sovereign in imperative supported by a threat of even the smallest harm is law.

Austin’s theory was vulnerable to a number of criticisms. One problem is that there appears to be no identifiable sovereign in democratic societies. In the United States, for example, the ultimate political power seems to belong to the people, who elect lawmakers to represent their interests. Elected lawmakers have the power to coerce behavior but are regarded as servants of the people and not as repositories of sovereign power. The voting population, on the other hand, seems to be the repository of ultimate political authority yet lacks the immediate power to coerce behavior. Thus, in democracies like that of the United States, the ultimate political authority and the power to coerce behavior seems to reside in different entities.

4. Popular theories on legal positivism

Popular theories of Hart and Kelsen came into existence due to that fact that Bentham’s and Austin’s theories “treating all laws as commands”, “conceals important differences in their social functions, in the ways they operate in practical reasoning”. As said above these recent theorists came to prefer power in the law applying institutions to law making institutions or legislatures.

4.1. Hans Kelsen (1881-1973)

Kelsen held that law is normative and must understand as such. Kelsen’s pure theory of law is more akin to law as it is but not as it ought to be. Regarding Kelsen, Suri Ratnapala (cited.) held: ‘The key elements of Kelsen’s theory are these. Facts consist of things and events in the physical world. Facts are about what there is. When we wish to know what caused a fact we look for another fact. A stone thrown in the air comes down because of the force of Earth’s gravity. There are seasons because the Earth’s axis is tilted at 23.5 degrees. A norm, unlike a fact, is not about what there is but is about what ought to be done or not done. Whereas facts exist in the physical world, norms exist in the world of ideas. Facts are caused by other facts. Norms are imputed by other norms. The requirement that a person who commits theft ought to be punished is a norm. It does not cease being a norm because the thief is not punished. (He may not get caught.) The norm that the thief ought to be punished exists because another norm says so. Not all norms are laws. There are also moral norms. Legal norms are coercive; moral norms are not.

Kelsen from the above frame work, Kelsen opined that the regression of validated norms cannot go on infinitely and must arrive at a First Cause, which he called a Grundnorm. The legal system is therefore a system of legal norms connected to each other by their common origin, like the branches and leaves of a tree.

4.2. H.L.A. Hart (1907-92)

Hart and Joseph Raz were two thinkers who were influenced by Kelsen. But Kelsen’s argument ends up in a transcendental acceptance of norm. Hart answers this position explaining norms origin is not in transcendental origin but in social fact and social validity of these norms. Hart‘s usages of “positivism” as applied to law to include the contentions that:

• laws are commands of human beings
• there is no necessary connection between law and morals—that is, between law as it is and as it ought to be
• analysis (or study of the meaning) of legal concepts is worthwhile and is to be distinguished from history or sociology of law, as well as from criticism or appraisal of law, for example with regard to its moral value or to its social aims or functions
• a legal system is a closed, logical system in which correct decisions can be deduced from predetermined legal rules without reference to social considerations.
• moral judgments, unlike statements of fact, cannot be established or defended by rational argument, evidence, or proof (“noncognitivism” in ethics)

Hart’s solution resembles Kelsen’s in its emphasis on the normative foundations of legal systems, but rejects Kelsen’s view of authority. For Hart, the authority of law is social. The ultimate criterion of validity in a legal system is neither a legal norm nor a presupposed norm, but a social rule that exists only because it is actually practiced. Law ultimately rests on custom: customs about who shall have the authority to decide disputes, what they shall treat as binding reasons for decision, i.e. as sources of law, and how customs may be changed. Of these three “secondary rules,” as Hart calls them, the source-determining rule of recognition is most important, for it specifies the ultimate criteria of validity in the legal system. It exists only because it is practiced by officials.

5. Summary

We understand that for positivists law is that which is posited or laid down by power or authority. Prior to positivistic philosophy natural law theorists like Aquinas and Aristotle developed their theories before the advent of modern science and their theories of law and state based on virtue and morality. Later developed theories were influenced by science and scientific laws, reason and rejected the source of law based on metaphysics; divine origin and virtue and morality.. Further, legal positivism is studied in two ways; by studying natural law and relating it authority or command and other by later positivist by studying law not as a command but thorough understanding the way it is practiced.

While Hobbes, Locke, Bentham and Austin are some of the theorists adhered to natural-based and power based legal positivism, Kelsen, Hart and other modern theorists held that law is not attached to morality but on the law that is in practice. But law is not just posited by authority or that which is in practice alone; it is more than that. For in a democratic nation law making power is given again by the people and people have the power to change it according to the changing social need and with humanistic concerns. Thus legal positivism needs some more insights from many disciplines like sociology to find out what sort of laws are required according to changing times and issues.

Reference

1. Hart, H. L. A. (1994). The Concept of Law (2 ed.). London: Oxford UP.; superseded by 3rd edition 2012, edited by Leslie Green
2. Raz, Joseph (2009). Between Authority and Interpretation. Oxford: Oxford UP.
3. Austin, John, Lectures on Jurisprudence and the Philosophy of Positive Law (St. Clair Shores, MI: Scholarly Press, 1977
   1. Images source:http://www.iep.utm.edu/bentham/ ON 3/AUG 17
   2. Images source: https://en.wikipedia.org/wiki/Positivism 20/7/2017
4. Legal positivism, available at https://en.wikipedia.org/wiki/Legal_positivism
5. Legal Positivism, https://plato.stanford.edu/entries/legal-positivism/s