POSITIVISM

1. AUSTIN
2. HLA HART
3. KELSON

Positivism means-

Book- The province of jurisprudence determined--1832

Legacy of power is much criticised

Concept of legal authority and political power- concept developed by Austin is demolished
by Hart published in 1961. Austin remains as a figure of significance. It continues to be there.
Austin was fundamentally utilitarian closely associated with Bentham and Mill. The proper
purpose of sovereign is political government- greatest possible advancement of human habits
is the purpose of sovereign. (Utilitarianism)

Solely with the positive law or the law strictly law. Jurisprudence is concerned solely with
positive e law or law strictly called without considering it is good or bad. Positive law is the
law said by political superior to political inferior. A law which actually exists is law. The
existence of law is one thing, its demerits is another, whether it be or not be is not inquiry and
whether it is be or not be confirmable to assumed standard. These 2 questions need to be
separated and analysed. It is mandatory to obey that law.

Analytical jurisprudence- strict formal analysis of existing legal institutions and the
consideration of ethical matters is nothing. Law is law and don’t add anything more to that.
Analytical and positivism goes hand in hand. Ethics can be a subject mater of inquiry, moral
can be, but not for the understanding of law.

Austin says law is the command of the sovereign. habit of obedience. A law in the most
general and comprehensive acceptation in which the term in its literal meaning may be said to
be a rule laid down for the guidance of an intelligent being by other intelligent being having
power over him. Rule laid down for guidance of intelligent human being.

AUSTIN’S THEORY

Rule laid down for the guidance of an intelligent being by another intelligent being. (those
who have power).

Laws improperly so called comprises of the following:

1. Laws by analogy- set up by mere by indeterminate body of a man (ex: intenaitonal

law) – Enforced through opinions only
2. Laws by Metaphor- these are laws observed by the lower animals
 Laws properly so called-

1. Laws of God-
2. Law said by men to men (HUMAN LAW) – by private individuals
a. laws strictly so called and laws- political superior to political inferior -province of
jurisprudence.
b. not strictly so called- consists of laws said by men not politically superior – does
not involve commands of sovereign ex: Human affairs

Sovereignty – positive exercise of ultimate authority. Highest power over citizens and
subjects. LIABILITY OF STATE: he can do no wrong

Essence of exercise of sovereignty is the demand of obedience. The bulk of given society is
in the hand of superior. Let this common superior be individual, group or a body.

Austin’s definition of sovereign:

If a determinate human superior not in a habit of obedience to another receives obedience

from a bulk of a given society, that superior is sovereign, and that society is a society which
is political and independent.

Austin hard core – moral

 Power of sovereign is incapable of – no limited sovereign- no sovereignty, no law.

Law is a command issued by a political superior (majority of members of society is
habit of obedience to him) enforced by a threatened sanction.
 Sovereign makes the law, abrogates the existing laws, amends the laws.
 He failed to understand that law is much more than parliamentary enactment. It’s not
an abstract idea that comes in mind of anyone.

CRITICISMS OF AUSTIN’S THEORY

1. Law is not always command. For ex; law of contract. – de fact and de jure- no
distinction is made. He says that it is a narrow theory and a formalistic approach to
understand law and legal system.
3. Hart told about law and legal system. He says Austin’s explanation is not realistic.
4. There are many societies where there is sovereign but no law. There are many laws
existed in legal system which are not the command of sovereign. for ex: customs
followed by people from a long period of time.
 HLA HART (1905-)

General philosophy, focused attention – development of doctrine of legal positivism,

CONCEPT OF LAW- what is meant by law and legal system.

Laws existence mean that the most prominent feature of law all time, its existence means
certain time s of conduct are no longer optional nut becomes obligatory.

Obedience is one feature of law and no discretionary power of an individual. Legal

institutions and phenomenon related to the law must be studied precisely as they are.

Law is best defined by investigating its formal feature (some criteria is there) rather realising
detailed feature

Legal system is composed of 2 rules:

Rules can be both primary and secondary rules. To determine the validity of law, which is
determined whether it creates obligation to follow among the society or not.

1. Primary rules- rights, duties, obligation- normal process- laws made by bodies.
Formal features- ament, repeal, enact. If this obligation is treated by law- valid norm.
it should be valid according to secondary rule.
According to Hart’s definitions, primary rules either forbid or require certain actions
and can generate duties or obligations. For a citizen with an internal perspective to the
law, the existence of a primary rule will create an obligation for him or her to behave
a certain way (Hart, 74). When we think of something being against the law, or
required by the law, we are generally in the realm of primary rules. A primary rule
can be the law against walking out of the Apple Store with an IPod without paying or
the law requiring you to stop at a red light. In the “rules of the game” metaphor, an
example of a primary rule would be that in football, it is illegal to restrain a player
who is not in possession of the ball.

2. Secondary rules- by the court, recognised as a third category- rules of recognition

(Primary rule is not sufficient to govern) society feels the necessity. Can be intervened
and altered, adding something new or repealing existing laws.
Secondary rules on the other hand, set up the procedures through which primary rules
can be introduced, modified, or enforced. Secondary rules can be thought of as rules
about the rules (Hart, 76). Continuing with our football metaphor, an example of a
secondary rule would be that a coach is 1 permitted to challenge a call by the referee.
But must accept the final decision of the ref following the viewing of the instant
replay. When analysing the necessity for secondary rules, Hart imagines a simple
society, with only primary rules, but concludes that such a society would face a
number of challenges: because there would be no systematic method of rule creation,
there would be uncertainty about what the rules actually are; the system would be
very static, since any changes in the rules would have to occur organically; finally,
without a defined adjudication method, inefficiencies would arise from disputes over
 whether a rule was actually broken (Hart, 75). These three problems can be remedied
with the introduction of three types of secondary rules, in order: rules of recognition,
rules of change, and rules of adjudication

Legal validity is to be determined by source of law-not be its content.

Harts gave distinguished structure of a municipal legal system. Difference between law,
coercion, morality.

Essential Features of Hart

 Law is a social phenomenon need to be studied requiring the recognition of

characteristics of human condition- 1. Human vulnerability 2. Limited altruism
 Human characteristics identified by Hart- harts speculative anthropology (study of
human beings)- more concerned by human- not objective and has no place in
morality.
 There is a need for every society to have systematic rule for person, property and
promises needs to be protected.it is need from the analysis of the features and
interrelationships- to capture the essence of law.
 He also asserts that both primary and secondary rules are essential for working of a
legal system.
 What are the pre-requisites for existence of legal system? Before it can be said that
there is existence of legal system
 1. There should be a system of valid obligation rules (in accordance with the rules
recognised as a part of legal system) ultimate criteria for validity- obeyed by majority
members of the society.
Those who administer administration of the society must recognise-
1. rule of change
2. rule of adjudication and
3. rule of recognition.

Social rules should not be understood as law. social habits are not to be understood as
command. Essence of social habit need to be examined- these social habits is to be
distinct from the rules which govern. When a social rule is broken- criticisms.
Existence of the social rule testifies that there is morality, obligation, etiquettes –
(inner feeling of a person)

External impact of rule- rule that a person who is not a part of the group standing
outside watching you can infer that such rule exists.
Social rule- external aspect that can be broken easily. There are things which may be
Morality is material for both Austin and Hart.
Hart admit that there can be legal system without sovereign.

Social rules- not all social rules are considered as law

  rules consisting convention
 rules consisting obligation – they are considered essential so that quality of the
community is maintained. Ex: set of .. rules
ex: theft,
\sexual offences- anonymity

 Hart argues that society need be operated in primary rules.

Restriction on free use of iron, theft, etc.
Norms which prohibits theft, personal relationships.
Those who reject the rules- minority.

Hart says that society is too small. Kinship system but this is not sufficient for any
society. Public opinion in important.

In hart’s theory, he criticised Austin theory of law as command- he describes laws as

rules. Hart, like Austin, is a positivist and wants to separate the descriptive question
of what law is from the prescriptive question of what law should be. But he does
believe that there is a normative aspect to the law, which is reflected in the obligation
we feel to follow it.

The defects of the primary rule- addition of secondary rules is there and they aim to
rectify the defects those created by the primary rules. It is obtained from those basic
norms which were already exercised. Hart suggest that introduction of remedies for
each defect would
Introduction of 20 rules
There can be law and legal system without sovereign, His theory filled the gaps sand
defects of Austin’s theory.

To be unified as a system- mechanics

Basic rule creates obligation-
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Secondary rules – changes

 Rule of adjudication is particular secondary rule- through which remedies the

situation arising out of some situation. It enables the person who can decide the
dispute and the procedure to be followed are included in secondary rules.

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 Law can either arise out of custom and practice, or by the process of law making
 Acceptability- if justified by the norms practiced.
 Law is viewed as coercive organ of the society. Coercive act is sanction. If violation,
it will invite the sanction’
 Ex: possession of drugs- offence under the specific statutory provision. It supports the
compliance with the law.
 Law is essence, coercive order of behaviour. When employed, sanction are outwards
since they demand the deprivation of liberty and or property in order to remedy the
situation.
 Validity of norm is derived solely from being authorized by another higher nor. If it is
validated by higher norm, it’s valid.
 Concretization of the norm
 The law or the legal order is system of legal norms, repetition of idea
 1st ques- What constitutes the unity in diversity of legal norms?
 Validity can be traced back to the final norm, grund norm. A multiplicity of norm
constitutes order. This factor unifies-
 Grund Norm – its validity cannot be derived from higher norm. commencement of
specific chain of legal norms. Thus, in tracing validity of a procedural norm, ex,
criminal offender. There is a final postulate, this basic norm is presupposed by
thinkers, analysis of legal norm cannot go beyond Grund norm. norm can be a
creation of custom, by the act of legal institution. A system of law cannot be
established conflicting basic norms of the society.
  The grund norm identified need not necessarily be eternally valid. It may change.
Wherever dictated by the sovereign is the law. When you say, king is god, king to the
executive which makes the law, chain can be formed.
 Society can undergo change, and transform itself, norms changes, but the Grund norm
can be validified.
 Effectiveness of the norm, essential feature, order need not be a basic order.

Is the legal system working?

The principle of legisitmacy is being restricted by principles of effectiveness. Any norm

supposed to be legitimate.

Norm must be obeyed. If not obeyed cannot be inquired as valid norm. Minimum
effectiveness must be there. If nobody obeys, can never be a legal system. Beyond the logical
consistencies, bulk of society should accept it.

KELSEN

Kelson is a positivist. He is from Vienna. He said law is a logically consistent self-contained

system. He talks about the hierarchy of norms. Norms of the same legal system.

Kelsen provide an explanation of legality and the normativity of law, without an attempt to
reduce jurisprudence, or “legal science”, to other domains. The law, Kelsen maintained, is
basically a scheme of interpretation. Its reality, or objectivity, resides in the sphere of
meaning; we attach a legal-normative meaning to certain actions and events in the world

Ultimate value of legal system depends upon- Graud norm

There should be a basic norm. each standard state that there is a norm

Ex: misuse of mobile is prohibited. Who issues it? Vice chancellor- from where does she get
the power- Tamil Nadu act- legislature- constitution. We the people of India, made the
Constitution a grand norm.

Grund norm

Ex: kill all Jews- command.

There can be many branches in this norm triangle

and all these norms ends at the grand norm.
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 The state and law are identical
 A state is not governed by the law is unthinkable. It is not individual but a union of
unthinkable.
 State and law are coextensive.
 There is no true separation. Kelsen’s analysis said-

CRITICISM

 Not exercised in real life but logic- Laski criticised this analysis- his theory is
unanswerable. It ignores the utilization of the fundamentals of the life. Uses colours
of the law. Kelsen says about the

WHY DO YOU OBEY?

Is there any obligation? The feeling of obligation. Sanction Makes you obliged. Sanction is
required as without them it won’t be the same.

1. The concept of Grund norm- unreal according to some critics, the basic norm is
condemned as Austin’s sovereign. the reason for obedience is not found / within one
norm variety of complex reason- political, social etc
2.
HISTORICAL SCHOOL OF JURISPRUDENCE

A deep knowledge of past is essential to understand Historical jurisprudence. Study of

existing legal institution, pattern of development.

1. Savigny (1769-1861) Founder

2. Sir Henry Maine (1822-1888)- law member in East India company Board and carry
forward mission of Macaulay

Savigny view law as reflecting peoples historical experience, culture and spirit, growth of
legal principle, silently operating forces.
SIR HENRY MAINE (1822-88)

He rejected the theories of law based on man’s rational nature. (ex- natural law theory- reason
is applied). Those theories based on man’s nature was rejected by him. His trust and
importance- man’s deep instinct, emotions and habits his wide knowledge on society. He
interprets human history as providing proof of existence of stages in law. We can see
different stages of development and law can be understood as a late stage (in these different
stage) in a slowly evolving pattern of the society.

BOOK: ANCIENT LAW- connection with early history and modern ideas (1861)

He adopted a systematic method of investigating early le and embryonic legal system/

Three distinct but connected changes of development that law in the early society

1. Law is a personal command and judgements of patriarchal ruler.

2. Law is a custom upheld by the judges.
3. Law as a code.