6 Law as an Outcome of Statehood: Positivism Classical Positivism: Bentham, Austin and Kelsen

INTRODUCTION

At the close of the eighteenth century and the beginning of the nineteenth the most earnest thinkers in England about legal and social problems and the architects of great reforms were the great Utilitarian’s.1 Two of them, Bentham and Austin, constantly insisted on the need to distinguish, firmly and with the maximum of clarity, law as it is from law as it ought to be.2 They represented intellectual reaction against naturalism.3

The five meanings of the term ‘positivism’ have been identified:4 (1) the laws are commands of human beings, (2) there is no necessary connection between law and morals or law as it is and ought to be, (3) the analysis (or study of the meaning) of legal concepts is (a) worth pursuing and (b) to be distinguished from historical inquiries into the causes or origins of laws, from sociological inquiries into the relation of law and other social phenomena, and from the criticism or appraisal of law whether in terms of morals, social aims, “functions,” or otherwise, (4) a legal system is a “closed logical system” in which correct legal decisions can be deduced by logical means from predetermined legal rules without reference to social aims, policies, moral standards and 5) the moral judgments cannot be established or defended, as statements of facts can, by rational argument, evidence, or proof (“noncognitivism” in ethics). The second meaning given above may be considered to be proximately associated with positivism.

Legal Positivism is not only the school of thought within jurisprudence that seeks to separate the law as it is from the law as it ought to be. The ancients may have regarded the law as received from devine sources but in the modern world, where most laws have a known human author, people think of law as a product of designing human minds. British Legal positivist regard the law as ‘social fact’, by which they mean that law is found in actual practices or the institutions of the society. Legal positivists have their significant disagreements but they share the common aim of

1 H. L. A. Hart, Positivism and the Separation of Law and Morals, Harvard Law Review, Vol. 71, No.

4 (Feb., 1958), pp. 593-629

2 H. L. A. Hart, Positivism and the Separation of Law and Morals, Harvard Law Review, Vol. 71, No.

4 (Feb., 1958), pp. 593-629

3 R.W.M. Dias, Jurisprudence, Aditya Books, 1994 (5th ed.), p.331

4 H. L. A. Hart, Positivism and the Separation of Law and Morals, Harvard Law Review, Vol. 71, No.

4 (Feb., 1958), pp. 593-629

helping people understand the law as it actually is.5 The Analytical School is positive in its approach to the legal problems in the society. It concentrates on things as they are, not as they ought to be. The main concern of the positivists is ‘law that is actually found’, positum, and not the ideal law. The most important legal sources are legislation, judicial precedents and customary law. This school, dominant in England, lays down the essential elements that go to make up the whole fabric of law, e.g. State sovereignty and the administration of justice. The motto of analytical school is ubi civitas ibi lex i.e., where there is State, there will not be anarchy. The main proponents of this school are Bentham, Holland, Austin, Salmond etc.

BENTHAM

The English jurist and philosopher Jeremy Bentham (1748-1832) is the greatest historical figure in British legal positivism. Bentham, the founder of positivism, should be considered the “Father of analytical positivism”, and not Austin as it is commonly believed. The debt that Austin owed to Bentham was enormous, patent and acknowledged. He was a champion of codified law.6 Bentham distinguished expositorial jurisprudence (i.e. what the law is) from censorial jurisprudence (i.e. what the law ought to be). Principles and laws together reveal Bentham’s thinking about the law. Bentham did not think that law everywhere was regarded as the legislative will of the sovereign. Bentham regarded the term ‘law’ as a socially constructed fictitious entity. He knew that even in his own country the law was found mainly in the form of common law that was not the creation of a political sovereign. Bentham regarded this authorless, unpromulgated and uncodified body of rules that made up English law as being unworthy of the name ‘law’. He dismissed similarly the idea of a higher natural law. He called such law ‘an obscure phantom, which, in the imaginations of those who go in chase of it, points sometimes to manners, sometimes to laws; sometimes to what the law is, sometimes to what the law ought to be’.

Bentham reasoned that a system of law that derive its rule exclusively from the clearly expressed legislative will of a sovereign will produce clearer and more certain laws than the rules generated by the common law system. His preference for

5 Suri Ratnapala, Jurisprudence, Cambridge University Press, 2009 (1st edition), p.21

6 G.W.Paton, A Textbook of Jurisprudence, 2007 (4th Indian Edition), Oxford University Press, p.5

legislation was grounded in utilitarian moral philosophy, of which he was a principle instigator. Bentham proceeded from the axiom that nature has placed mankind under the governance of two sovereign masters, pleasure and pain. They alone point out to us what we ought to do, and what we should refrain from doing.7 According to him, the good or evil of an action should be measured by the quantity of pain or pleasure resulting from it.8

Bentham’s notion of pleasure included not only carnal pleasure but also the more sublime forms of satisfaction gained from intellectual and spiritual pursuits, noble deeds and self sacrifice. He drew from this his famous principle of utility, which states that an action ought to be approved or disapproved according to its tendency to increase or diminish the happiness of the party whose interest is in question.9 Bentham was convinced that a system of law that derives its rules exclusively from the commands of a sovereign authority, when measured by the yardstick of public utility, is superior to the common law system. Whereas the former produces clear, authoritative and certain laws, the latter generates a cumbersome and illogical mass of precedent that serves the interest of the lawyers but not of the public. Bentham proposed the codification of all laws.10

According to Bentham, a law is an expression of the will of a sovereign within a state. Law in this sense requires a state that establishes sovereign authority. A society that lacks the superstructure of a state and has no sovereign hence has no law in the sense of Bentham’s definition. By ‘sovereign’ he meant, ‘any person or assemblage of persons to whose will a whole political community are supposed to be in a disposition to pay obedience and that in preference to any other person’. Thus, the sovereign may be an elected parliament, an oligarchy, or even an absolute ruler who is unrestrained by law and who secures the people’s obedience by naked force.

Bentham suggested that the sovereign’s power may be limited by constitutional rules that constrain the sovereign are merely rules of positive morality. Bentham struggled to explain the idea of legally limited sovereignty. He discussed the issue in relation to a sovereign who is an individual like sovereign prince, may set limits on his own power by a royal covenant (pacta regalia). A covenant that seeks to bind his

7 Jeremy Bentham, An Introduction to the Principles of Morals & Legislation, Oxford, 1823, p.1

8 Edgar Bodenheimer, Jurisprudence: The Philosophy and the method of the law, Universal Law Publishing, 2009, p. 84-85

9 Jeremy Bentham, An Introduction to the Principles of Morals & Legislation, Oxford, 1823, p.2

10Suri Ratnapala, Jurisprudence, Cambridge University Press, 2009 (1st edition), p.31

successor will only be a ‘recommendatory mandate’ that becomes covenantal only when adopted by the successor. Bentham recognised the absurdity of a person giving themselves a binding order. The effectiveness of a sovereign’s self command depends on the sovereign’s will and good sense. It will be effective as law only if the sovereign is subject to an outside force, such as a superior court with power to invalidate laws- in this event the sovereign is not sovereign. Bentham says that a sovereign’s self-imposed limitations are enforced only by force of religious or moral sanctions. These forces are no match for the political will of the sovereign.

The content of the law may be established by the sovereign by conception or by adoption. Conception is where the substance of the law is conceived by the sovereign itself as when the queen in Parliament enacts a statute that lays down a new rule of conduct. Adoption is where the sovereign confers validity on a rule made by another person. This may happen in one of the two ways. First, the sovereign may adopt laws already in existence and made by other persons. Bentham called this ‘susception’. Thus, sovereigns may adopt the laws created by their predecessors, thereby providing for the continuity of the legal system. Second, sovereigns may declare that they will adopt laws made in the future by another person. This is ‘pre-adoption’. What we call delegated legislation today falls in this category. This is the case where an Act of Parliament authorises an official to make laws and bestows validity upon them.

Not every expression of sovereign will generates law as it is commonly understood. Sovereign will becomes law only when it takes the legislative form. Thus according to Bentham, administrative orders, military commands and judicial decisions are not laws. According to Bentham, a law is about conduct – what a person or class of persons may do, must do or must not do in given circumstances. Subjects of the law are the persons to whom the law is directed. A law may be directed at a single person commanding that person to do or not to do a specified act. A law has effect only on persons who are subject to the sovereign’s power. The objects of a law are the acts or forbearances that the sovereign aims to secure by enacting the law.

AUSTIN

John Austin (1790-1859) dominated the British positivism till 1945 when the Bentham’s work was first published. The work of Austin was largely derived from Bentham’s. Austin applied analytical method- ‘law should be carefully studied and analysed and the principle underlying therein should be found out’- and confined his field of study only to the positive law – jus positivism (‘law, simply and strictly so called’: ‘law set by political superiors to political inferiors’). Therefore, the school founded by him is called by various names – ‘analytical’, ‘positivism’, ‘analytical positivism’. Austin is considered as the father of English Jurisprudence. His lectures were published under the title ‘The Province of Jurisprudence Determined’.

Austin defined law as ‘a rule laid down for the guidance of an intelligent being by an intelligent being having power over him’. According to him, the law ‘properly’ so called includes law of god, human laws and positive laws. The law ‘improperly’ so called includes laws of analogy and laws by metaphor. Proper laws derived from authority, and there are two kinds of authority in Austin’s legal universe: the authority of the Christian scriptures and the authority of the political superior.11 The scriptures are the sources of divine law – that which is set by god for his creatures. The political superior is the direct source of human law, which Austin termed ‘Positive Law’. Austin considered the positive law to be the exclusive concern of jurisprudence, and the laws of god are the subject of theology.12 In Austin’s theory there are many kinds of law improperly so called. The common denominator of this class is that they are based on opinion and not authority. Austin made a broad a distinction within laws improperly so called. Some of them resembled proper laws closely and are called laws with reason. Others are only remotely analogous and are called law by caprice of fancy. Austin termed the former, laws by analogy and the latter laws by metaphor. The kind most remote from the proper law are the laws of science, which in Austin’s lexicon are laws by metaphor. They do not command anything to be done or not done, but predict the effects of physical causes. According to Austin, laws by analogy are not law but positive morality. This class includes non obligatory rules of social etiquettes, household rules and moral rules. It also encompasses customary law, international law and constitutional law, which are considered to be binding according to the general opinion. Austin recognised that customary law comprises rules that are spontaneously adopted by a community whose members live by them, and that there effect may be identical to that of positive law. Hence, they remain positive morality until transformed into legal rules by legislation or judicial recognition. The laws of nations (international law) is consigned to positive morality as it does not flow from the will of the sovereign but consist of opinions and sentiments current among

11John Austin,The Province of Jurisprudence Determined, Cambridge University Press, 1995, p.109

12Suri Ratnapala, Jurisprudence, Cambridge University Press, 2009 (1st edition), p.38

nations.13 Austin thought that the great pioneers in international law such as Hugo Grotious Samuel von Pufendorf confused the practice of nations (positive international morality) with their own ideal of a law of nations. What about treaties by which nations accept obligations towards other nations? These obligations depend once again on a custom- that treaties should be honoured in good faith (pacta sunt servanda).

The stipulative nature of Austin’s taxonomy is being capable of noticeable when we consider the role of customary law. Sometimes a custom is valued and useful in society that is demands recognition as a positive law. Sometimes a custom that has outlived its social utility may be so entrenched that it can only be extinguished by positive law. Austin acknowledged that a customary law (whether domestic or international) may have the same practical effect as a positive sovereign law. But, in his legal universe it is not positive law, because it does not flow from the will of a determinate sovereign. No political sovereign, no law. Hence, international law can become positive law only under a global empire whose rulers command obedience of all subordinate states.

According to Austin, positive law comprises the commands of a political sovereign supported by sanctions on those who disobey. There are three key elements of this concept of law: (1) a political sovereign, (2) command and (3) sanction. According to him, “law is the command of a sovereign”,14 requiring his subjects to do or forbear from doing certain acts. A command is not a request but an imperative that creates a duty by the presence of a sanction. A command involves (i) a wish or desire conceived by a rational being that another rational being shall do of forbear; (ii) an evil in case of non-compliance; and (iii) intimation of the wish by words or other signs. A command cannot be separated from duty and sanction. They are aspects of a single event. Where there is a duty there is a command, and where there is command there is a duty. Laws producing commands may be general, in the sense that they constitute rules of conduct applying to classes of persons or events. The rules of criminal laws are general commands. They are impersonal and not directed to particular individuals. Commands are also occasional and particular.

There is an implied threat of a sanction if the command is not obeyed. A command is an expression of a wish by a determinate person, or body of persons that another

13Suri Ratnapala, Jurisprudence, Cambridge University Press, 2009 (1st edition), p.39-41

14 John Austin,The Province of Jurisprudence Determined, Cambridge University Press, 1995, p.109

person shall do or forbear from doing an act subject to an evil in the event of disobedience i.e., ‘sanction’. So every law is a command, imposing a duty, enforced by a sanction. A command may be particular (addressed to one person or group of persons) or general (addressed to a community at large and informed classes of acts and forbearances; they are also continuing commands). A particular command is effective when the commanded person or group obeys; a general command is effective when the bulk of a political society habitually obeys it. Austin’s notion of sovereign is if a determinate human superior not in a habit of obedience to a like superior, receives habitual obedience from the bulk of the given society, that determinate superior is sovereign in that society. According to him, the sovereign is a determinate human superior. The persons who make up the sovereign must be identifiable. This is one of the main reasons for Austin’s view that customary law is not positive law. Customary law is the product of generally held opinion of an indeterminate community of persons. The persons who create customary law and the persons who are obliged by customary law are to a large extent the same individuals. The sovereign must not only be determinate, it must be human. The law of God as revealed in the scriptures is law properly so called but is not positive law, as it is not promulgated by a human superior.

The basis of sovereignty is the fact of obedience. According to Austin, the sovereign’s power is unlimited and indivisible. For him, the notion of a divided sovereign is absurd. However, in many modern states the power is divided among legislative, executive and judicial branches of government. There is much overlap and power sharing among the branches, and under the constitutions of many countries no one branch appears supreme. But not so in Austin’s view. In Austinian theory judicial and executive actions are simply different ways of executing sovereign commands. Officials and judges are mere delegates or ministers of ultimate law making body, the legislature.

The sovereign is not bound by any legal limitation or by his own laws. It cannot be limited by positive law, although it may be constrained by positive morality. Austin maintained that the constitutional rules are rules of positive morality that the sovereign may disregard. If a sovereign’s power is limitable it is because there is a superior power that can impose limits. In that case the superior power is the real sovereign.

Austin’s definition of law as the command of the sovereign suggests that only the legal systems of the civilised society can become proper subject matter of jurisprudence because it is possible only in such societies that the sovereign can enforce his commands with an effective machinery of administration. Austin’s definition ignores custom. His theory is criticised as the sanction is not the only means to induce obedience. Austin’s insistence on sanctions as a mark of law conceals and distorts the real character and function of law in a community. Law is obeyed because of its acceptance by the community. In modern times, law is nothing but the general will of the people.

Austin distinguished positive law from positive morality. Positive morality is an aspect of morality generally. It is moral to be kind to fellow beings, to practice temperance, to give to charity and generally to be virtuous. These are moral values but not moral rules. In Austin’s system, positive morality is made up of moral rules that resemble positive law. Many rules of positive morality are co-extensive with rules of positive law. Rules against murder, rape, robbery, theft and cheating are just a few examples. What happens when a rule of positive law offends a rule of positive morality? In Austin’s view, the legal answer is that positive law prevails. Austin, unlike Bentham, was a man of faith and steadfastly maintained that the sovereign is bound to obey the divine law.

KELSEN

Hans Kelsen (1881-1973) belonging to Vienna school of legal thought, proposed a “pure theory of law”, i.e., a theory free from social, historical, political, psychological etc. influences (Thus, excluding everything which is strictly not law).

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. A norm, unlike a fact is not about what there is but is about 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. The norm that the thief ought to be punished exist because other norm says so. Not all norms are laws. There are also moral norms. Legal norms are coercive whereas moral norms are not. A legal norm is valid if it is endowed with validity by another norm. Whereas physical things arise from causation, legal norms arise from validation by another valid norm. A norm that confers validity upon another norm owes its own validity to another norm and so on. This regression cannot go on infinitely. Kelsen conceived the idea of a basic norm (Grundnorm), a kind of First Cause of the legal system beyond which we cannot speculate in a legal sense. A legal norm exists because of a chain of validity that links it ultimately to the basic norm.

Legal norms represent the meaning we gave to a particular series of acts. The statement in a statute that something ought to be done is not a norm but a fact. The norm is the meaning we give to this fact when considered with certain other facts. Section 302 of Indian Penal Code states that any person who commits the offence of murder is liable to imprisonment of life. Provisions of other Acts determine how a person is charged and tried and, if found guilty, how sentence is imposed and executed. From all of this we gathered the norm that a person ought not to commit murder. The legal nature of this norm is evident only when all the interlocking provisions are taken into account. Kelsen also drew an important distinction between a legal norm and the statement of a rule of law. A legal norm is a command. Hence it is neither true nor false. I asked you to leave my property. My statement is neither true nor false. It is the expression of my wish. Similarly, an Act of Parliament states: ‘A person convicted of murder shall be sentenced to life imprisonment’. It is the expression of the will of the Parliament. It may be valid or not valid, but not true or false.

Kelsen denied that there was a necessary connection between law and morality. A law that gives effect to a moral rule is law not because of its moral content but because it has been constituted in a particular fashion, born of a definite procedure and a definite rule of law. A norm in the sense of an ought could be legal or moral. Often it is both. The rule against theft is moral as well as legal. Law is not only regulative system in society. Moral Norms play an important role in guiding behaviour. It is also not possible to distinguish moral and legal rules by the way they are created. There are two ways in which legal rules come about: by custom and by the will of law making authority. According to Kelsen, moral prescriptions derived from purely philosophical speculation have no force as rule unless they gain currency in society. That happen by force of custom or authority. Legal and moral norms also cannot be distinguished by the methods of their application. Moral systems lack the kind of specialised enforcement agencies like courts, police etc. that we associate with legal systems. According to Kelsen, “the fundamental difference between law and morals is: law is a coercive order, that is, a normative order that attempts to bring about a certain behaviour by attaching to the opposite behaviour a socially organised coercive act; whereas morals is a social order without such sanctions. The sanctions of the moral order are merely the approval of the norm-conforming and the disapproval of the norm-opposing behaviour and no coercive acts are prescribed as sanctions.”

Kelsen wrote: norm is the meaning of an act by which certain behaviour is commanded, permitted or authorised. A norm may take the form of a rule or a specific command.15 A police officers’ order to stop traffic, the ministers order under the land acquisition Act to acquire a person’s property and a judge’s decree in a civil case are all norms. Kelsens’ theory eradicates the distinction between rules and orders. A norm, according to Kelsen, need not supply a rule of conduct that can be known beforehand – a necessary condition for achieving the rule of law. However, not every expression of will directed to a person is a norm. An armed robber’s demand that I hand over money is not a norm, whereas a tax collectors demand of money is a norm. The subjective meanings of the two acts are the same. Each wills that I hand over money. But only the later demand has objective meaning in Kelsen’s sense. It is objective because an antecedent valid norm authorise the demand. Thus, we may say that a norm is an ‘ought’ proposition that is objectively recognised.

The law is a system of behavioural norms which can be traced back to Grundnorm or basic norms from which they derive their existence. The Grundnorm must be efficacious, i.e., people must believe in it, otherwise there will be a revolution. In every legal system, Grundnorm of some kind there will always be, whether in the form of the Constitution or the will of a dictator. Where there is a written Constitution the Grundnorm will be that the Constitution ought to be obeyed. Where there is no written Constitution (UK) one must look to social behaviour for the Grundnorm. Under international law, the Grundnorm is the principle ‘pacta sunt servanda’ (treaty obligations are binding on parties)

While, Grundnorm accounts for validity of norms emanating from it, one cannot account for its own validity by pointing to other norms. Its validity cannot be objectively tested, instead, it has got tobe presumed or presupposed. It looks for its own validity in factors outside law. However, it imparts validity so long as legal order remains by and large effective. It should secure for itself a minimum of effectiveness and when it ceases to derive minimum of the support of the people it is replaced by some other Grundnorm.

Kelsen also applied his theory to a system known commonly as ‘international law’. The pure theory demands that a Grundnorm be discovered. In the international sphere there are two possible Grundnorm, the supremacy of each municipal system or the supremacy of international law. Every national legal order cannot ex hypothesi recognise any norm superior to its own Grundnorm. The English legal order does not

15Suri Ratnapala, Jurisprudence, Cambridge University Press, 2009 (1st edition), p.58-59

apply in France nor vice versa. Kelsen argued instead for a monist view of relationship between international and municipal law and declared that the Grundnorm of the international system postulates the primacy of international law. Nations in practice recognise equality of each other’s legal orders and the doctrine of equality must mean that they recognise the existence of a Grundnorm superior to the Grundnorm of their own particular legal orders.

The first thing which his theory requires is the Grundnorm of international order. This is by no means clear: it may be the principle pacta sunt servanda or ‘coercion of state’ against state ought to be exercised under the conditions and in the manner that conforms with the custom constituted by the actual behaviour of the state.

Kelsen’s theory is criticised, as according to Kelsen a legal order is validity when it is effective, it does not matter whether it is an illegitimate rule brought about by unconstitutional means. This means law is a system of external compulsions i.e. people are forced to comply with law. Validity of a law does not necessarily derived from an effective Grundnorm. Kelsen does not give an criterion by which the minimum effectiveness of Grundnorm is to be measured. The Grundnorm simply creates or validates a legal order but do not provide the content to a legal order. In the case of Asma Jilani v. Government of Punjab,16 it was held that it is for the courts to determine the criterion of Grundnorm, and to decide the validity and efficacy of a legal order. The effectiveness of Grundnorm depends upon sociological factors. Julius Stone criticised Kelsen on the latter’s assertions that all the norms excepting the Grundnorm are pure. He asserted that other norms which derive their authority from Grundnorm cannot remain pure when the Grundnorm itself is a combination of various social and political factors.

However, Kelsen presented a formal, scientific and dynamic picture of a legal structure. The coercive elements dominate the theories of Austin, Kelsen and Hart. Thus, if certain formal criteria are satisfied, any social norm is law irrespective of its intrinsic worth or quality. Essence of law lies not in its form but its function. All three excludes morality from law, though they admit that morals play an important role in the formation of law, but once a law is made morals play no more roles.

The world of norms

The world of fact

SUMMARY

Positivism means that the law as it is actually laid down, positum, has to be kept separate from the law that ought to be.17 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 persons, who in the case in question are or supposed to be subject to his power’.18 Thus, the concept of law for Bentham was an imperative one. Austin thought that ‘law’ is only an aggregate of individual laws. He defined ‘law’ as a general command of a sovereign backed by a sanction.19 According to Kelsen, whose ‘pure theory of law’ is based upon norms, law is the primary norm, which stipulates sanction.20 He conceded that a law is a ‘de-psychologised command, a command which does not imply a ‘will’ in a psychological sense of the term…a rule expressing the fact that somebody ought to act in a certain way, without implying that anybody really ‘wants’ the person to act in that way’.21

17W.M. Dias, Jurisprudence, Aditya Books, 1994 (5th ed.), p.331
18 Jeremy Bentham (ed. HLA Hart), Of Laws in General, The Athlone Press, 1970, p.1
19 John Austin,The Province of Jurisprudence Determined, Cambridge University Press, 1995, p.109
20 Hans Kelsen, General Theory of Law & State, Harvard University Press, 1945 p.29
21Hans Kelsen, General Theory of Law & State, Harvard University Press, 1945 p.35

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