Jurisprudence

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AUSTIN’S COMMAND AND SOVEREIGNTY THEORY Positivism : British Theories* The start of the nineteenth century might be taken as marking the beginning of the positivist movement. It represented a reaction against the a priori methods of thinking that characterised the preceding age. Prevailing theories of natural law shared the feature of turning away from the realities of actual law in order to discover in nature or reason principles of universal validity. Actual laws were then explained or condemned according to these canons. Unverified hypotheses of this sort failed to satisfy the intelligence of an age nurtured in the critical spirit of new scientific learning. Scrutiny of natural law postulates had damaging results, for they were shown to be without foundation or else the products of extrapolation. The term ‘positivism’ has many meanings, which were tabulated by Professor Hart as follows: (1) Laws are commands. This meaning is associated with the two founders of British positivism, Bentham and his disciple Austin, whose views will be considered in this chapter, (2) The analysis of legal concepts is (a) worth pursuing, (b) distinct from sociological and historical inquiries, (c) distinct from critical evaluation. (3) Decisions can be deduced logically from predetermined rules without recourse to social aims, policy or morality. (4) Moral judgments cannot be established or defended by rational argument, evidence or proof. (5) The law as it is actually laid down, positum, has to be kept separate from the law that ought to be. Whatever meanings are ascribed to positivism, it is contrasted with natural law, which also has different meanings. In view of these differences one needs to be chary of classifying any particular writer as positivist or naturalist. However, subject to that general caution, it would be safe to assert that the authors discussed in this and the following chapter are commonly regarded as positivists. What matters are their views on particular issues, not how they are labelled. The fifth meaning given above seems to be the one currently associated with positivism. It may spring from a love of order, which aims at the clarification of legal conceptions and their orderly presentation. To insist that ‘what the law is’ is one question, ‘what the law ought to be’ is another, looks neat and tidy. Precision may be elusive but striving towards it whenever possible is commendable and profitable. Positivism flourishes in stable social conditions; the difficulties of maintaining a rigid separation between 'what is' and 'what ought to be' are only projected to the forefront when conditions are in turmoil. It is worth remarking that neither Bentham nor Austin should be thought of as writing in periods of particular stability. What they represent is the intellectual reaction against naturalism and a love of order and precision. Bentham was a tireless campaigner for reform, and both he and Austin insisted that prior to reform there has to be a thorough-going clarification of the law as it is. The significance of stable conditions might conceivably be seen in the fact that the Austinian theory made no headway until after his death, until after the Chartist movement had collapsed, and it then rapidly reached the zenith of its influence in the serene atmosphere of Victorian *

R.W.M. Dias, Jurisprudence 331-335 (5th ed., 1985).

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The Province of Jurisprudence Determined

England. Whether a separation between the 'is' and the ‘ought’ is tenable or not is a debatable issue to which allusion will be made on several occasions. It is necessary, therefore, to try and clarify what that issue is. The preceding portions of this book, especially the analysis of 'Duty', will have shown that a large part of law consists of perspective patterns of behaviour, i.e. models of conduct to which people ought to conform and by which their actual behaviour is judged. Therefore the 'is', which positivists are anxious to preserve...
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