Classics: Legal Postivism - British Theories
From Reginald Walter Michael Dias, Jurisprudence (Graham Beynon John Hughes ed., 1957). P. 331-356
The concept of Positivism is methodological rather than being ideological in nature. It is primarily concerned with the processes through which knowledge is accumulated. A system that completely rejects the existence of anything that cannot be discerned through the process of scientific investigation, therefore rejecting the claims made by theology and metaphysics. The nature of Positivism is fundamentally altered when it is utilised in the context of “Legal Positivism”. The word retains its methodological nature, and simultaneously adopts a distinct ideological character. The idea of Legal Positivism thus no longer serves as a “method” to help understand the nature of law, but also establishes an ideological position based off its perception on the nature of such law. The ideas propounded by Bentham, Austin, Mill, Kelson and Hart are oft quoted as “Positivist” because of their emphasis on unearthing the true nature of law, law “as it is” and their contingent relationship with the normative aspects of law.
Legal positivism began as a movement in early 19th century in response to the ideas of a priori reasoning that characterised the previous century. One of the fundamental issues with this movement was their overt reliance on unverifiable hypotheses in order to establish a universal idea of law, popularly characterised as “Natural Law”. For many thinkers of the Natural School of Law, Law in its true sense was divinely ordained, expounded on to the material realm through the human faculties of reason. For many these ideas seemed baseless or products of extrapolation.
Legal Positivism on the other hand, argues that the law is promulgated in the form of a mandate or a command, and must be understood independent of social aims, policy or morality. For Dias, legal positivism represents a spontaneous intellectual reaction against naturalism and a “love for order and precision”. It envisages a tidy demarcation between “law as it is” and “law as it ought to be”. But as he later argues, the separation between the positive and normative nature of law, is not as clear as the positivists make out to be. Dias highlights an fatal flaw in the positivist argument, when he writes “the ‘is’ which the positivists are anxious to preserve inviolate, is largely composed of ‘oughts’.” The nature of the ‘is’ becomes very difficult when the same question is seen through the lens of historicity. The source of the first positive law, must have been drafted on the basis of some form of moral consideration, on a normative conception of right and wrong. Once the grundnorm has formulated, subsequent legislation may derive its validity by fulfilling the procedural requirements mentioned in the Constitution. At that point the question of demarcating boundaries between the positive and the normative becomes more relevant. This is why Dias writes “positivism flourishes in stable social conditions;” Though neither Bentham, nor Austin are writing in particularly stable times, their fundamental objective is to build a resistance to the naturalist movement and in doing so envisage a legal philosophy that builds a stable society free from any moral suasion.
Bentham builds an idea of the nature of law, by first building a semantic argument about “fictional entities”. He argues that while there are words that do point to actual objects in the real world (‘real entities’) other words are ‘fictional entities’. Thus for him, ‘a law’ and ‘an act’ is a real entity, while ‘rights’ and ‘duties’ are fictional entities. ‘Law’ similarly is a fictional entity made up of various individual ‘laws’, the legal system thus is a made out of the inter-relation of these individual laws. Bentham essentially, builds this elaborate foundation in order to isolate the unit in terms of the larger phenomenon, he first attempts to understand the nature of ‘a law’ before understanding the nature of ‘Law’.
For Bentham the source of a law is always the will of the Sovereign. This may take the form of issuing laws personally, or adopting laws from the preceding Sovereign. His Sovereign is any “person or assemblage of persons whose will a whole political community are supposed to be in a disposition to pay obedience”. The Sovereign also has limitless powers, limited only either by an express provision, or by religious or political motivations. It is constituted of institutions that have their own jurisdictions and their functions are limited by each other. It may also makes laws for himself, which prescribe the manner in which the Sovereign may function. This creates a form of self-bindingness on the Sovereign, and interestingly upholds the “rule of law”.
Expression of the Sovereign’s will can be through various means, Bentham gives us a wide definition of Law which incorporates “signs, declaration of a volition, conceived or adopted by the Sovereign in a state”. But what is of great interest is the nature of interpreting this will, by the Judiciary. For Bentham, if the expression of the Sovereign’s will is ‘complete’ the judge must adopt a literal interpretation, while at the time when this expression is 'incomplete’ he may adopt a liberal interpretation. For Bentham, the common law principle of ‘judge made law’ was ‘dog’s law’, due to a lack of certainty. A dog is reprimanded by his owners after his act has been done, when he did not know whether the act is right or wrong in the first place. That equally applies to the idea of ‘judge made law’. The volatility of judicial legislation makes it difficult for someone to know whether what he is doing is legally correct or incorrect. This lack of certainty also reduces the utility derived, due to the possibility of improbable outcomes, thereby maximising pain over pleasure. This also explains his interest in the codification of English Law, so as to make it more certain.
For Bentham’s disciple Austin, while the nature of the Law remained the same, the nature of the Sovereign altered fundamentally. For Austin, the Sovereign could not be bound by the Laws that he has created. Austin understands that the concept of delegation is also the process of commanding that people shall obey the commands of another. This is inconsistent with his understanding of sovereignty, thus not only is it not subject to laws, it also illimitable and indivisible. This idea of an all powerful sovereign harks back to the theory of the divine monarch who in the eyes of many scholars of antiquity was the representative of God on Earth. One of those scholars is Bodin, who incidentally is one of the early influences of Austin. Austin was also particularly inspired by the Justinian Codes of Rome, and the systematic codified nature of Law in Germany. It is thus heavy European influence which might help us understand his stance on the nature of Sovereignty.
Austin’s idea of the Sovereign pushes the entire concept of Constitutional Law, in to the realm of positive morality. The concept of ‘rule of law’ is fundamentally altered and the and a pre-modern almost medieval society develops in the presence of such a Sovereign. For him the Sovereign could neither have laws imposed upon him, nor can he have any claims as the presence of claim would imply an authority beyond the Sovereign that is supposed to confer its claims. That again seems inconsistent with the Leviathan (it is quite evident that Austin was also influenced by Thomas Hobbes) like Sovereign, Austin attempts to argue for.
For Dias these ideas are riddled with inconsistencies. On the question of the indivisible Sovereign he writes that Austin seems to have come to an incorrect conclusion, as he was fundamentally asking the wrong question. The issue is not of whether a sovereign authority can be vested in more than one body, rather it is an issue of whether it can be exercised in more than one. The former seems to have lead to the assertion that the power of the Sovereign is indivisible, while Austin actively agrees with the latter assertion. Austin also believes that sovereignty lies within the Queen, the Lords and the Electorate. The question which thus arises is, who here is the commanded and who is the commander, when all constituent units of the State are sovereign themselves.
Concluding Dias enters into an interesting argument and attempts to argue that the difference between the Naturalist thinkers and the Positivists fundamentally relies on “timeframe”. In the long run institutions must function on the back of some form of moral considerations, in the absence of which autocracy will prevail, this is where the Naturalists have a strong standing as they anticipate this and therefore attempt to develop a coherent idea of universal morality. On the other hand the Positivists have a claim on the present, their apparent distinction between the “ought’ and the ‘is’ serves a practical purpose here and now. Positivism, has historically been essential in helping develop our understanding of law, though in the modern era the thought of conferring illimitable powers onto the state seems quite frightening. It is to be noted that both Bentham and Austin lack the historical context of the World Wars and the totalitarian and fascist movements of the early nineties. Hart and Kelson on the other hand, equipped with that historical context, revamp analytical positivism and soften some of the positions earlier taken by the classical thinkers. The development of Human Rights jurisprudence in the 40’s has similarly placed the positivists on a back-foot, arguing for a universal conception of rights in lieu of the abhorrent Human Rights violations done by the State. Though the concept cannot be dismissed solely in as being authoritarian. Whether one agrees or disagrees with what they have to say, the Positivists have undeniably altered our understanding of “Law”.