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CONTENTS
PHILOSOPHICAL FOUNDATIONS OF
HUMAN RIGHTS; DUTIES AND
RESPONSIBILITIES
11 Legal positivist theory of rights
DR. VIRALAXMI MOGANTY
 epgp books

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.

you can view video on Legal positivist

theory of rights
 Reference

Hart, H. L. A. (1994). The Concept of

Law (2 ed.). London: Oxford UP.;
superseded by 3rd editio