LAW AND JUSTICE IN A GLOBALISED WORLD

ANALYTICAL POSITIVISM

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History of Positivism

French philosopher Auguste Comte, regarded as the philosophical founder of modern positivism,
distinguished three great stages in the evolution of human thinking. The first stage, in his system
is the theological stage, in which all phenomena are explained by reference to supernatural
causes and the intervention of a divine being.

The second is the metaphysical stage, in which thought has recourse to to ultimate principles and
ideas, which are conceived as existing beneath the surface of things and as constituting the real
moving forces in the evolution of mankind.

The Third and last stage in the positivistic stage, which rejects all hypothetical constructions in
philosophy, history, and science and confines itself to the empirical observation and connection
of facts under the guidance of methods used in the natural sciences.1

As far as the philosophy of law is concerned, we have seen that the interpretation of law during
the Middle Ages was strongly influenced by theological considerations: law was brought into
close connection with divine revelation and the will of god.

The period from the Renaissance to about the middle of the nineteenth century, on the other
hand, may be described as the metaphysical era in legal philosophy. The classical law-of-nature
doctrine as well as the evolutionary philosophies of law advocated by Savigny, Hegel and Marx
were characterized by certain metaphysical elements. These theories sought to explain the nature
of law by reference to certain ideas or ultimate principles, which were conceived as working
beneath the empirical surface of things.

Neither the eternal reason of the natural-law philosophers, nor savigny’s “national spirit”, and
“silently operating forces” shaping the law, nor Hegel’s “world spirit” handling the torch of
evolution from one nation to another, nor any “withering away of the law” in a communist
society, can be judged and measured in terms of the empirical world.

All these constructions are metaphysical in a broad sense, inasmuch as they go beyond the
physical appearance of things and proceed from the assumption of invisible forces and ultimate
causes that are to be sought behind the facts of immediate observation.

In the middle of the nineteenth century, a strong countermovement against the metaphysical
tendencies of the preceding centuries set in. This movement may be described by the loose but

1
Comte, the Positive Philosophy, translated by H. Martineau (London, 1875), I, 2.
comprehensive term positivism. Positivism as a scientific attitude rejects a priori speculations
and seeks to confine itself to the data of experience. It turns away from the lofty heights of the
spirit and restricts the task of scholarship to the analysis of the “given.” It refuses to go beyond
the phenomena of perception and denies the possibility of a comprehension of nature in its
“essence,”

The basis for positivism had been prepared by the immense success achieved in the domain of
the natural sciences during the first half of the nineteenth century. This success brought about a
strong temptation to apply the methods used in the natural sciences to the realm of the social
sciences. A careful observation of empirical facts and sense data was one of the principal
methods used in the natural sciences. It was expected that in the social sciences this same method
would prove to be highly fruitful and valuable.

Thomas Hobbes(1588-1679) and Leviathan

The first clear theory of law based on the notion of sovereign power appeared in the
Leviathan, the work of Thomas Hobbes. Hobbes was a royalist who was appalled by the
destruction brought by the English Civil War (1642-49) and the arbitrary rule of the Rump
Parliament that followed the defeat and execution of Charles I in 1649. The turmoil and chaos of
those times convinced Hobbes that only a strong central government could secure the safety and
wellbeing of the people. Hobbes spent most of the turbulent decade in self-exile in Paris, during
which he wrote his greatest work - Leviathan. Whereas other contemporary defenders of royal
absolutism appealed to the divine right to rule, Hobbes made a utilitarian case for recognising an
‘uncommanded commander’ whose will is law.
Hobbes concluded from his observation of human nature that people will be in perpetual conflict
unless they are subject to a supreme political authority. Individuals on the whole have equal
strength. Hence every person will lay claim to everything, including the control of other persons.
The results will be war among individuals and hopeless misery. Hobbes was right in saying that
civilisation is impossible in conditions of perpetual conflict. It is difficult to conceive of
humanity flourishing without security of life, liberty, and property. This is common sense that
history repeatedly confirms.
According to Hobbes, sovereign is not necessarily an individual. It could be a group or
even an elected parliament. A sovereign (whether one or many), when ruled by passion or
ignorance, may govern in its own interests or prove too incompetent to protect the interests of its
subjects. Such a sovereign loses its right to obedience. As James Boyle put it, ‘Hobbes was
shoring up the power of a centralised state by appearing to deduce, from the very definition of
law, the need to subordinate all forms of normative authority to the power of the sovereign’2.

2
James Boyle Thomas Hobbes and the Invented Tradition of Positivism: Reflections on Language,
Power, and Essentialism , 135 U. Pa. L. Rev. 385 (1987).
Hobbes argued strenuously that the only effective way for people to escape the misery of their
natural condition was by conceding all political power, including a monopoly of law making
power, to a supreme commander. Hobbes, unlike later positivists,was not preoccupied with the
demonstration of law as scientific fact. For Hobbes,the greater good demanded that people
equate the law to the command of the sovereign. Subjects have a moral duty to obey the law so
made, except in extreme conditions when a weakened or corrupt sovereign can no longer offer
them protection.

JEREMY BENTHAM (1748-1832)

Jeremy Bentham was the forerunner of the analytical method in England. He was
decidedly averse to Natural Law and metaphysical-historical jurisprudence. He believed that law
was made up of individual laws which are commands of the supreme power in politically
organized society. What distinguishes him from the genuine analytical jurist, however, is his
faith in the existence of a higher principle by which legal rules may be tested. This superior
principle he found in the principle of utility. In ‘​Introduction to the Principles of Morals and
Legislation’​, Bentham explains this principle of utility as “the principle which approves of every
action whatsoever according to the tendency which it appears to have to augment or diminish the
happiness of the party whose interest is in question”3. By his philosophy of individualist
utilitarianism Bentham furnished us with a measuring rod by which laws may be tested. He was
the great pioneer of the field of legislation and exercised a powerful influence on John Austin,
the founder of the English or Analytical School of Jurisprudence

Bentham defined law as follows-

A law may be defined 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 supposed to be subject to his
power; such volition trusting for its accomplishment to the expectation of certain events which it
is intended such declaration should upon occasion be a means bringing to pass, and the prospect
of which it is intended should act as a motive upon those whose conduct is in question.4

Bentham’s concept of law is an imperative one which means that law is an assemblage of
signs, declarations of volition conceived or adopted by the sovereign in a State. He believed that
every law may be considered in the light of different aspects, viz-5

3
Bentham : Introduction to Principles of Morals and Legislation, p.2
4
Of Laws in General, Hart (ed) 1970, p 1.
5
Dias, Jurisprudence, fifth edn, p 337.
 1. Source (law as the will of sovereign)
2. Subjects (may be persons or things)
3. Objects (act, situation or forbearance)
4. Extent (law covers a portion of land on which acts have been done)
5. Aspect (may be directive or sanctional)
6. Force of a law, sanctional or incitative part
7. Remedial Appendages
8. Expression

1) ​Source
The Source of a law is the will of the sovereign, who may conceive laws which he
personally issues, or adopt laws previously issued by former sovereigns or subordinate
authorities, or he may adopt laws to be issued in future by subordinate authorities
Bentham’s sovereign is 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 the will
of any other person

2) ​Subjects
These may be persons or things. Each of these may be “agible” (active) or “possible”
(passive) subjects ie, the agent with which an act commences or terminates. Thus, a person may
be the striker or the party struck, a thing may be the instrument of destruction or the thing
destroyed.

3) ​Objects
It is crucial in understanding Bentham’s analysis to appreciate that each act - situation
(including forbearance) is the object of an individual law. This was because he believed that “a
law” is a real entity”.

4) ​Extent
Direct extent means that a law covers that portion of law on which acts have their
termination; indirect extent refers to the relation of an actor to a thing. Eg, being in a certain
place at the time of the act, in short the circumstances. Bentham also alluded in passing to the
extent in point of time, or duration of a law
5) ​Aspects
Every law has a “directive” and a “sanctional” or “incitative” part. The former concerns
the aspects of the sovereign’s will towards an actual situation and the latter concerns the fore of a
law.
6)​ Force of a law, sanctional or incitative part
A law is dependent upon motivations for obedience. The sovereign’s wish in respect of a
class of acts is a law, as long as it is supported by a sanction. It includes, physical, political,
religious and moral motivations, comprising threats of punishment and rewards.

7) ​Remedial appendages
Sanctions are provided by subsidiary laws. They themselves require a further set of
subsidiary laws, “remedial appendages” addressed to judges with a view to curing the evil,
stopping the evil or preventing future evil.

8) ​Expression
The way in which the sovereign’s will may be expressed are various. Xpression be
complete, ie, the natter to be regulated coincides with one law. In all such cases, a judge should
adopt a literal interpretation. Only where expression is incomplete, he may adopt a liberal
interpretation.

Bentham’s Utilitarianism

Bentham’s legal philosophy is called “individualism”, He was an individualist and said that the
function of law is to emancipate the individual from the bondage and restraint upon his freedom.
He supported the economic principle of “Laissez-faire”, which meant minimum interference of
the State in the economic activities of individuals. According to his Utilitarian theory, the right
aim of legislation is the carrying out of the principle of utility, or in other words, the proper end
of every law is the promotion of the “greatest happiness of the greatest number”. He discussed
this principle of utility in “Introduction to the Principles of Morals and Legislation”.
Bentham’s Utilitarianism had become the most popular for English legislative reforms
around 1830. According to Bentham, the task of the government was to promote the happiness of
society by furthering the enjoyment of pleasure and affording security against pain. He was
convinced and contented, that if individuals who comprise society were free, the whole body
politic would enjoy happiness and prosperity.
According to Bentham, the purpose of law is to bring pleasure and avoid pain. Pleasure
and pain are the ultimate standards on which a law should be judged. He wished to ensure the
happiness of the community by attaining four major goal, namely, ​subsistence​, ​abundance
equality​, and ​security ​for the citizens. Security was the most important legal regulation, because
it was related to protection of honour, property and status of a person. According to him, it is not
liberty but security and equality which should form the main objective of legal regulation.
JOHN AUSTIN

Like Bentham Austin was an adherent of the utilitarian philosophy of life. The principle of utility
appeared to him to be the ultimate test of law. According to him, the proper purpose or end of a
sovereign political government is the greatest possible advancement of human happiness.

The most essential characteristic of positive law, according to the Austinian doctrine, consists in
its imperative character. Law is conceived as a command of the sovereign. Not every type of
command, however, was considered a law by Austin. Only GENERAL commands, obliging a
person or persons to act or forbearances of a class, merited the attribute of law in his opinion.

It was not necessary, in Austin’s view that a command qualifying as a law must issue directly
from a legislative body of the state, schas Parliament in England. It may proceed from an official
organ to which lawmaking authority has been delegated by the sovereign. Judge-made law,
according to Austin, was positive law in the true sense of the term, since the rules which the
judges make derive their legal forces from authority given by the state. The norms enunciated by
the judges comply with the prerequisite most essential to positive law in the Austinian sense,
namely, that law be set by a political superior for the guidance of political inferiors. This
prerequisite is not fulfilled in that branch of law which is called International Law. True to his
own premises, Austin therefore denied the character of law to the rules and principles of
international law. In his view, they should be looked upon merely as rules of “positive morality,
“ a branch of norms regarded by Austin as “rules set or imposed by opinion”6

Austin’s theory of law, although it remained almost unnoticed during his lifetime, later gained a
great influence on the development of English Jurisprudence. The well-known treatises on
jurisprudence by Thomas Holland7, William Markby8 and Sheldon Amos9 were based on the
analytical method which Austin advocated in legal science. George W. Paton in Australia and Sir
John Salmond in New Zealand published texts which, although making concessions to
non-analytical theories of jurisprudence, bears the earmarks of Austinian approach.

In the US, John Chipman Gray, Wesley N. Hohfeld, and Albert Kocourek made contributions to
analytical jurisprudence.

6
Province of Jurisprudence - John Austin p.184
7
The Elements of Jurisprudence, (Oxford 1924)

8
Elements of Law (Oxford 1905)
9
The Science of Law (London 1874)
Austin set himself the task of making a beginning with the analysis of the principal concepts of
English law. Before doing so he felt it necessary to demarcate the province of law and to
distinguish it from what it ought to be.
Like Bentham, Austin believed that “Law” is only an aggregate of individual laws. In his
view, all laws are rules the majority of which regulate behaviour. These are either directives or
those imposed by general opinion. A directive, whether general or particular, is the expression or
intimation of your wish “that another shall do or forbear, issued in the form of a command”.
Accordingly, a law in its most comprehensive significant is “a rule laid down for the guidance of
an intelligent being by an intelligent being having power over him”.10

Austin distinguished between what he called “laws properly so called” and “laws improperly so
called.” The key to a law “properly so called” lies in obligation. An obligation exists when
another has the power and purpose of inflicting evil on any actor, who fails to conform to the
desired conduct. This other may be God, or human beings acting as political superiors ie, a
sovereign person or body of persons in an independent political society, or private persons acting
in pursuance of rights conferred upon them by political superiors.
Every directive is a command,the threat of evil is a sanction and the party commanded
and threatened is under an obligation or duty. Duty and sanction are correlative and fear of
sanction is the motive for obedience.
A command may be particular or general. Particular command is addressed to one person
or group of persons whereas general commands are addressed to the community at large and
enjoin classes of acts and forbearances. General commands are continuing commands. Any
commander who receives “habitual obedience” is sovereign in that society.
Laws “properly called” are subdivided by him into laws set by God, Divine Laws,, and
Laws set by men to men, acting as their political superior. To every law set by men to men he
applied the term “positive law” or “law simply and strictly so called” so as to distinguish them
from the laws of God. “Positive laws” are the subject-matter of jurisprudence. Separate from all
these are laws set by men to men neither as political superiors, nor in pursuance of rights
conferred upon them by such superiors, eg, whose set by a master to a servant or the rules of a
club. They are still laws “properly so called” because they are commands, but he distinguished
them from positive law by giving them the term “positive morality”.
Laws “improperly so called” consist in the first place of “laws by analogy”, ie. law set
and enforced by mere opinion, also somewhat confusingly termed as “positive morality”
-”Positive” so as to distinguish them from the Laws of God , “morality” so as to distinguish
them from positive law or law strictly so called.

10
Austin, John (1832). The Province of Jurisprudence Determined. p.10
Another subdivision included is “laws by metaphor”, which covered expression by the
uniformities of Nature. Major thrust in Austinian positive law was on separation of law from
morals. As a corollary of it, he distinguished the science of jurisprudence from ethics.

Austin defined law as “ a rule laid down for the guidance of an intelligent being by an intelligent
being having power over him”. He has divided law into two parts-

1. Laws set by God for men, and

2. Human laws, ie, laws made by men for men
Human laws are further classified into Positive laws and other laws.

a) Positive laws - These are the laws set by political superiors as such, or by men not acting
as political superiors, but acting in pursuance of legal rights conferred by political
superiors. Only these laws are the proper subject-matter of jurisprudence.
b) Other laws - Which Are not set by political superiors or by men in pursuance of legal
rights.

According to Austin, the study and analysis of positive law alone is the subject-matter of
jurisprudence and the chief characteristics of positive law are command, duty, and sanction.
However, he accepts that there are three kinds of laws which, though not commands, may be
included within the purview of jurisprudence by way of exception. They are as follows-

1. Declaratory laws - These are not commands, because they are already in existence and
are passed only to explain the law which is already in force
2. Laws of repeal - These are not commands but in fact they are the revocation of a
command.
3. Laws of imperfect obligations - These are not treated as commands, because there is no
sanction behind them.

Criticism of Austin’s Theory

Austin’s theory has been criticised by many jurists. Some of the important criticisms against his
theory are discussed below-
a) Customs ignored. Austin’s law as the command of the sovereign is not warranted by
historical facts. In early times, instead of commands of any sovereign, customs used to
regulate the conduct of people. Even after coming into existence of the State, customs
continued to regulate the conduct of people. Austin has totally ignored the importance of
customs.
 b) Judge-made laws - In Austin’s theory, judge-made laws find no place. In applying
precedents in interpreting the law, judges make laws which should also have been
considered.
c) Law conferring privileges- The law which is purely of a permissive character and confers
only privileges is not covered by austiin’s definition of law. An example can be taken of
the Contracts Act which lays down the methods for signing a contract has not been
included in Austin’s definition
d) Conventions - According to Austin’s definition, conventions which operate imperatively,
though not enforceable by the court, shall not be called law, although they are law and are
a subject-matter of study in jurisprudence.
e) International law - Austin puts international law under positive morality along with the
law of honour and the law of fashion. According to Austin;s definition, a very important
branch of law has been excluded from the study.
f) Rules set by private persons - According to Austin “positive law” does not include within
itself rules set by private persons in pursuance of legal rights which is undue extension
because their nature is very vague and indefinite.
g) Command theory untenable - Professor Olivecrona has denied the applicability of the
idea of a command of law. He says that a command is not identical with a declaration of
will. According to him, a command is always an act through which one person seeks to
influence the will of another, therefore the idea of command for law in the present
systems of governments is completely untenable.
h) Artificial - Austin’s view that the command of the sovereign i slaw treats lwa as an
artificial thing and ignores its character of spontaneous growth.
i) Sanction - According to Austin, it is the sanction alone which induces the man to obey
the law. This is not the correct view.
j) Relation of law and morals overlooked - According to Austin, “The science of
jurisprudence is concerned with positive law, or with laws strictly so called, as
considered without regard to their goodness or badness” which means the law is not
concerned with morals. This is not true because law is not an arbitrary command, but it is
a growth of an organic nature.

John Salmond

Sir John William Salmond (1862-1924) England, was one of the greatest scholars in the legal
field and belonged to analytical school. Yet he differs from the entire exponents in this school in
different ways.
For him, an imperative law is –“ a precept or rule of action imposed upon man by some authority
with enforces obedience to it. In other words, imperative law is the command or a rule in the
form of a command which is enforced by some superior power.”11 Salmond agrees the notion
that law in its abstract sense constitutes every rules regardless of the mode of their origin; that
can either be made by the legislation or evolved through common practice. But the main thing
required is that they must be recognized by the courts by the administration of justice12

Salmond’s definition of law

Salmond defines law as the body of principles recognized and applied by the state in the
administration of justice.13 It means that to understand law, one should know its purpose and to
ascertain its true nature one should go to the courts and not the legislature. He is in the part of the
law as it is but emphasizes the law made from the courts only.
He also argues that there is no law that is universal because jurisprudence is the science of civil
law and it applies within definite territory only. In this regard, seems quite compromising with
the notion of Austin regarding the school. John Austin argued that international law is not the
law in fact.14

Difference Between Austin and Salmond

Though Salmond and John Austin belong to the same school of thoughts, however, there are
some regions where some of the thoughts among these two scholars contradict. Some of them are
listed below:

a. Salmond didn’t agree with Austin that the analysis of law can be done with the help of
logic alone. He points out that the study of jurisprudence which ignores ethical and historical
aspects will become a barren study. He also argues that the law and morality are quite different
disciplines but are interdependent with each other. Austin used to believe that morality must be
excluded from law.

b. Austin argues that Judges are the delegators legislative who makes all decisions are
commanding on behalf of the sovereign. He is also against the idea that judges merely find the
legal rules and do not legislate. Contrary to him, Salmond expresses that this is the general
jurisprudence which was not the legal system in general, but out of the fundamental elements in
a particular system.15

11
Narayan Prasad Lamsal, Jurisprudence, Pairabi Prakashan,p89
12
Dr. Avtar Singh, Introduction to Jurisprudence, 2nd Edition, Wadna and Co. Nagpur p 89
13
Ranajit Bhakta Pradhananga Kishor Silwal, A General Outline of Jurisprudence, , Ratna Pustak
Bhandar, p29
14
Michael Doherty, Jurisprudence: The philosophy of law, 2nd edition, Bailey Press p 76
15
M.D.A Freeman, LLOyd’s Introduction to Jurisprudence, 7th edition, Sweet and Maxwell, p1
c. According to Austin, the concept of law existed soon after the origin of the state and no
law existed in the world before the concept of state was evolved. But Salmond criticizes him
saying that law existed before the evolution of state. The main difference is that law at that time
were customary and were guided by religion, not the sovereign authority.

Salmond’s definition brought about a great change in the analytical positivist view and
also expanded the boundaries of the study of jurisprudence which was narrowed by Austin as he
gave importance to the court.
The definition of salmond has considerable influence on later jurists and they took inspiration
from him and also the seed of the realist school is traced. The realist school also emphasizes the
law as it is but not law ought to be. And also it disregards the purpose of law and believes on the
final result of the law and give much importance to the court and the judges.16
Law as an expression of the will of the state but sees it as made through the medium of courts.
Law no doubt the command of the sovereign but the sovereign to the realists is not the
parliament but the court.

Criticisms of Salmond’s thoughts:

Salmond’s thoughts are also criticized in so many grounds by many scholars. Vinogradoff
criticizes his definition of law that the courts are only supposed to enforce and apply the law, not
to define it.
His definition of law is applicable only to the common which is judge-made law. His definition
of law is imperfect in the sense that it has linked justice with the law as well as the implication of
the definition that to know the true nature of law one should go to the court that is not sound.
According to this definition, a great part of law which is not enforced by the courts such as
conventions will not be covered by it. Thus the definition of Salmond is not perfect.
Salmond’s definition of the law raises the question about the meaning of the word ‘court’. He
has not cleared whether it includes administrative tribunals. In many cases the decision of an
administrative tribunal or even that of an administrative officer is final. There are many decisions
which are given by those administrative branches. If they can be taken as law or not. Legislature
will take up questions of their own privilege and also of contempt against the house.
Though the definition may be appropriate for case law, it is not appropriate in respect of statute
law. It is because the legislature often gives decisions and are approved by the executive. At that
time as Salmond’s thought, they must wait for a case to go to the court and then receive judicial
recognition. In fact, statutes are recognized by courts because they are law. They are not law
simply by virtue of judicial recognition.

16
Narayan Prasad Lamsal, Jurisprudence, Pairabi Prakashan,p51
 And also his considerations about law may arise a disharmony between the courts and the
legislature in the sense that political issues can also be categorized as law. For his defense,
Salmond separates it as the marginal case which cannot violate his definition.

Hans Kelsen and Pure Theory of Law

Hans Kelsen (1881-1973) was an Austrian jurist, legal philosopher and political philosopher.
Roscoe Pound lauded Kelsen as “undoubtedly the leading jurist of the time.”17 A quarter of a
century later, H.L.A. Hart described Kelsen as ‘the most stimulating writer on analytical
jurisprudence of our day’.18

His book titled “The Pure Theory of Law” was published in two editions, one in Europe
in 1934, and a second expanded edition after he had joined the faculty at the University of
California at Berkeley in 1960.19

Kelsen’s definition of law

Kelsen defined “law” in the following:-

Law: An Order of Human Behaviour

“When we compare the objects that have been designated by the word “law”
by different people at different times, we see that all these objects turn out to be
‘orders of human behavior’.”20

Law: A Coercive Order

“A second characteristic is that they are ‘coercive orders’. This means that they react against
certain events, regarded as undesirable because detrimental to society, especially against human
behavior of this kind, with a coercive act; that is to say, by inflicting on the responsible
individual an evil – such as deprivation of life, health, liberty or economic values – which if
necessary, is imposed upon the affected individual even against his will by the
employment of physical force.”21

17
Roscoe Pound, ‘Law and the Science of Law in Recent Theories’, Yale Law Journal, 43 (1933-4),
525-36, at 532
18
H.L.A. Hart, ‘Kelsen Visited’, UCLA Law Review, 10 (1962-3), 709-28, at 728, repr. in Hart, Essays in
Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983), 283-308, at 308.
19
http://en.wikipedia.org/wiki/Hans_Kelsen
20
Hans Kelsen: Pure Theory of Law. Translated by Max Knight. New Jersey: The Law Book Exchange
Ltd, 2002, p. 31.
21
Ibid, p. 33.
SALIENT FEATURES OF KELSEN’S PURE THEORY OF LAW22

1. Law as Science: Kelsen tried to present a theory that could be attempted to convert law
into a science. A theory that could be understood through logic.

2. As a Positive Law: In the first paragraph of Pure Theory of Law, Kelsen introduces his
theory as being a theory of positive law. This theory of positive law is then presented by
Kelsen as forming a hierarchy of laws which start from a Basic Norm, i.e. ‘Grundnorm’
where all other norms are related to each other by either being inferior norms.

3. Law “As it is”: Kelsen emphasized that analysis must focus on law as ‘it is’ actually laid
down, and not as ‘it ought to be’.

4. Law Contains set of Rules: Kelsen emphasized that the Law contains mass of rules, and a
theory should organize them in an ordered pattern.

5. Law and Morality: Kelsen's strict separation of law and morality, is an integral part of
his presentation of the Pure Theory of Law. The application of the law, in order to be
protected from moral influence or political influence, needed to be safeguarded by its
separation from the sphere of conventional moral influence or political influence. Kelsen
did not deny that moral discussion was still possible and even to be encouraged in the
sociological domain of inter-subjective activity. However, the Pure Theory of Law was
not to be subject to such influences.

6. Theory of Law should be Uniform: According to Kelsen, the theory of law should be
applicable at all times and all places.

7. Law is ‘Ought’ Proposition: A norm is a proposition or an if statement: “If A happens,

then B is ought to happen.” Thus: “If someone commits a theft, the judge ought to punish
him.” A legal system is composed of a series of such norms.

8. Static Aspect of Law: Kelsen distinguished the static theory of law from the dynamic
theory of law. The static theory of law represented the law as a hierarchy of laws where
the individual laws were related the one to the other as either being inferior, the one to the
other, or superior with respect to each other.

22
Ibid, p. 1-355
 9. Dynamic State of Law: Kelsen discussed the dynamic theory of law. In the dynamic
theory of law, the static theory of law comes into direct contact with the governmental
administration of the state which must recognize the function of the legislature in the
writing of new laws. At the same time there is also the understanding of law as being
affected by the accumulated standing law which represents the decisions of the courts
which in principle become part of the hierarchical representation of the pure theory of
law. Importantly, Kelsen allows for the legislative process to recognize the law as the
product of political and ethical debate which is the product of the activity of the
legislature before it becomes part of the domain of the static theory of law.

MAJOR POSTULATES OF KELSEN

Law is a norm of action​: Kelsen regards jurisprudence as a normative science as distinguished

from a natural science. In natural sciences laws are statements of the sequence of cause and
effect, e.g., if A is, then B is (if Hydrogen and Oxygen unite in the proportion of 2 to 1, they
form water). There can be no question of infraction of such a law if it is law, , for a single
infraction invalidates the law. In jurisprudence laws do not have a causal connection. They have
a normative connection, e.g., if A is, then B ought to be (if a person commits murder, he ought
to be hanged). These laws remain valid even when they are infringed and even when the
indicated consequences has not followed.

‘State’ is a synonym for the legal order which is nothing but a pyramid of norms​: The central
problems of Kelsen’s pure science of law is the derivation of the norms or ‘ought propositions’
or juristic science. What is the criterion for testing the lawness of these norms? Kelsen answers
this question by his hypothesis of the grundnorm of fundamental norm. The grundnorm is not
capable of deduction from any principles of the pure science of law. It is an initial hypothesis and
is incapable of logical proof. For England this grundnorm would be “What the crown in
Parliament lays down is law”. We can only explain historically how this principle was accepted
in England, but cannot demonstrate it by pure logic. The primary purpose of the basic norm is to
apportion norm-making competence among the persons in the State, to lay down the procedure
for making norms. This is the position in England. From the basic norm, norm-making power
devolved upon a lower level, from which in its turn be generated or ‘concretised’. The lawness of
any particular norm will be tested by considering whether or not ultimately it is traceable to the
grundnorm. The entire hierarchy of norm-making organs and the process of concretisation of
norms is called by Kelsen the ‘Legal order’ of a particular State.

“Purity” of the Kelsenite Theory​: Kelsen’s attempt is to propound a logically consistent theory of
law which it to be applicable to any legal system. Because his theory if universalist and not
confined to any particular legal system, he calls it pure. Further in his theory, the lowness of a
norm is not dependent upon meta legal facts, but upon its specificity and relation to the legal
order itself. The test of lawnes is to be found within the system of legal norm itself. IT has
nothing to do either with social facts or with high principles of justice, and hence the theory
claims to be pure.23

IMPROVEMENTS UPON AUSTIN’S THEORY

No Dualism Between State and Law​: Austin postulated a dualism between the State and the Law.
To Austin, law is subordinate to the sovereign which is a personification of the State. The law
emanates from the sovereign and so cannot control the sovereign. For Kelsen the State merely
symbolises the unity of the legal order and is only a synonym for the legal order itself. So there
can be no distinction between Law and the State. Therefore, the difficulty of treating
Constitutional Law, which purports to bind the State, as law ​stricto sensu ​which confronted
Austin does not arise for Kelsen. While Austin says that the State creates the law, Kelsen would
say that the law regulates its own creation.

Law need not be imperative​: For Austin law is a command of the sovereign. Kelsen no doubt
requires a sanction as much as Austi does. But for him law is not the command of a personal
sovereign uy a hypothetical judgment which visits with a sanction the non-observance of the
conduct prescribed. The imperative definition of law necessitated a laboured explanation as to
how the law of evidence, limitation or procedural law can be squared with the imperative
definition. Kelsen’s theory steers clear of those difficulties.

No dichotomy between Private Law and Public Law​: Analytical jurists draw a distinction
between Public Law and Private LAw. Public law is supposed to deal with the rights and duties
of the sovereign or State towards the subjects while private law is supposed to deal with the
rights and duties of private persons inter se. To kelsen, this distinction is not meaningful. With
the elimination of the concept of sovereignty or state as a distinct entity, there will be no
dichotomy between public law and private law. Contract is traditionally regarded as the domain
of private law where obligations arise by mutual agreement and not by unilateral command as in
the domain of public law. Kelsen views contract as a delegation of legislative power the efficacy
of which proceeds ultimately from the basic norms as in the case of all other legal norms. So the
dichotomy between public law and private law is dispensed with.

International Law may be law ​stricto sensu:​ Austin could not concede the status of law stricto
sensu to International Law as the law binds sovereign states in their dealings inter se while the

23
Kelsen, H., Wedberg, A., Kraus, W. H., & Kelsen, H. (1945). ​General theory of law and state​.
sovereign is not bound by law which is only his creation. Kelsen’s theory steers clear of this
difficulty. The international organisation is regarded by Kelsen as superior to the legal order
otherwise called the state and so its norms are binding upon the State. The denial of the concept
of State sovereignty has made this possible.

Customary Law is law ​stricto sensu:​ Austin’s theory denies to customs the character as it has not
been created by the sovereign. Kelsen, however, is able to accommodate custom within his
concept of law for all that is required to do so is an intermediate norm to the effect that popular
practice may generate legal norms.

It can be said that Kelsen’s pure theory of law is a distinct improvement upon Austin’s theory. It
has steered clear of many of the pitfalls encountered by the Austinians. The theory has, however,
its own limitations. The identification of the State with the legal order seems to be open to
question. The State has to operate even outside the ambit of the legal order unless the legal order
is made coterminous with society as in totalitarian States. Even if the ambit of the legal order is
thus extended, it must be admitted that the State has to operate vis-a-vis other States and the
sphere of such an operation may have to fall outside the legal order. So the denigration of the
concept of State does not seem to be justified The main weakness of Kelsen’s theory is the
admission that the grundnorm is an unproven hypothesis. If this grundnorm is to differ from
country to country depending upon its past tradition and history, the very concept of
Jurisprudentia generalis is undermined. This must be admitted to be a drawback of this theory.

HLA Hart

HLA Hart(1907-1992), who was Professor of Jurisprudence at Oxford during 1952-1968, was a
leading figure in the post-war movement for the revival of interest in the philosophy of law in
relation to the much wider field of general philosophical enquiry. He was interested particularly
in the development of the doctrines of legal positivism and set out his view of the fundamentals
of a legal system in The Concept of Law(1961). The essence of Hart’s positivist approach
emerges from the following propositions which may be derived from the text.

1) The most prominent general feature of law at all times and places is that its existence
means that certain kinds of human conduct are no longer optional, but in some sense
obligatory.
2) Legal institutions and other phenomena related to the law must be studied precisely as
they are
3) Law is best defined by investigating its formal features rather than the precise and
detailed nature of its content
 4) The concept of ‘legal validity’ is to be determined by reference to the source of a law
within the legal system, not necessarily by its content
5) The essence of legal obligation is to be found in the phenomenon of a case covered by a
law which is widely recognised as being valid.

Law ought to be studied, in general, as ‘value-neutral’, so that, for purposes of jurisprudential

investigation, it should be kept apart from questions of morality.
Hart’s goal of his jurisprudential investigation was the advancement of legal theory ‘by
providing an improved analysis of the distinctive structure of a municipal, legal system and a
better understanding of the resemblances and differences between law, coercion, and morality, as
types of social phenomena.’

For Hart, the legal system is a system of social rules. The rules are “social” in two senses:
first that they regulate the conduct of members of societies (they are a guide to human conduct
and standards of criticism of such conduct”)24, secondly, in that they derive from human social
practices.25 They are not the only social rules. There are, for example, rules of morality. Like
rules of morality, laws are concerned with obligations” they make certain conduct''obligatory”.
But unlike rules of morality they have, what MacCormick calls, “a systemic quality”26 which
hinges on the inter-relationship of two types of rules, called by Hart “Primary rules” and
“Secondary rules”.
Hart objected to Austin’s command theory on the grounds that it failed to encompass the
“variety of laws”.27 His theory distinguishes between primary duty-imposing rules, such as the
rules of the criminal law or the law of tort, and secondary power-conferring rules such as the
laws that facilitate the making of contracts, wills, trusts, marriages, etc, which lay down rules
governing the composition and powers of courts, legislatures and other “official” bodies. These
secondary rules relate in various ways to the primary ones: it is in this kind of relationship that
the systemic quality of law is to be found.
According to Hart, there are three categories of secondary rules. There are rules which
confer competence on officials to pass judgment in cases of alleged wrongs and also to enforce
the law, for example by ordering the payment of damages or by depriving someone of his liberty.
Hart calls these rules “rules of adjudication”. There are rules which regulate the process of
change by conferring the power to enact legislation in accordance with specified procedures.
These rules Hart designates “rules of change”. Rules of change have additionally a lower-order
or private dimension. These are rules which confer on ordinary individuals the power to produce
changes in the legal relationships with others. Thirdly, this is what Hart calls the “rules of

24
The Concept of Law (“Postscript”), p.249
25
MN Smith (2006) 12 Legal Theory 265
26
Ibid n.26
27
The Concept of Law, Ch.3
recognition”. What this does is to determine the criteria which govern the validity of the rules of
the system. The rule of recognition is one one of the more puzzling and troublesome features of
Hart’s jurisprudence. This constitutes the skeleton of the legal system. But a legal system can
only be said to “exist” if it is effectively in force. There are, according to Hart, “two minimum
conditions necessary and sufficient for the existence of a legal system.” These are that “Those
rules of behaviour which are valid according to the system’s ultimate criteria of validity must be
generally obeyed, and its rules of recognition specifying the criteria of legal validity and its rules
of change and adjudication must be effectively accepted as common public standards of official
behaviour by its officials.”28 The first condition has to be satisfied by private citizens and they
nay obey for any reason. The second condition must also be satisfied by the officials of the
system and they must regard the secondary rules as “common standards of official behaviour and
appraise critically their own and each other’s deviations and lapses.”29 They must accept these
rules (or at least the rule of recognition) and observe them from what Hart calls, “the internal
point of view.”
A system of rules which is in this sense effectively in force in a territory is, according to
Hart, the central case of a legal system.30 But there are other cases and much of Hart’s analysis is
an attempt to show the parallels between these and the standard, mature, stable legal system, and
the differences. There are “primitive” forms of human social community where a common set of
primary standards is observed but where power-conferring secondary rules have not developed.
Hart attempts to show how the shortcomings suffered by such a pre-legal community are cured
by the development of secondary power-conferring rules.31 Because of the absence of these rules
there is also missing in pre-legal society concepts such as “power”, “official,” legislature” which
members of modern states take for granted. International law provides an analogous case. It lacks
a central organ of adjudication with compulsory powers; it does not have a method for changing
the rules to govern relationships between states; furthermore, there is no rule of recognition.
Austin regarded neither primitive law nor international law as law. Hart does not agree.
He draws a distinction between a “set” of rules and a “system.” The most significant difference
Hart puts like this: “In the simpler form of society we must wait and see whether a rule gets
accepted as a rule or not; in a system with a basic rule of recognition we can say before a rule is
actually made that it will be valid if it conforms to the requirements of the rule of recognition.” 32
But, despite differences of form and structure, Hart detects essential similarities of content and
function between simpler and complex cases. These similarities make it proper to think of
“primitive law” and “international law” as sufficiently analogous to the more central case of the
developed, modern municipal legal system to make it proper to describe them as “law.” As far as

28
The Concept of Law p.116
29
Ibid n.40, p.117
30
Ibid p.99
31
A. Skillen, Ruling Illusions (1977) (pp 102-107)
32
The Concept of Law p.100
content is concerned, both primitive societies and the international order contain among their
primary rules elementary restrictions on violence, theft, breach of promise, etc. The explanation
for this may be sought in terms of social function. As Hart puts it: “given survival as an aim, law
and morals should include a specific content.”33
This draws attention to another aspect of what Hart conceives to be part of legal order.
He sees a core of good sense in natural law. If society is not to be a sucidie club, the legal
orderings of human social communities must “naturally” embody a certain number of basic
prohibitions, what he calls a “minimum content of natural law.” Such limitations on conduct are
common requirements of law and morality. There is thus an overlap between “law” and
“morality”. There is, nonetheless, concepts which Hart wishes to keep distinct. He distinguishes
legal and moral obligations in terms of four “cardinal” features of morality, each of which
distinguish those “principles, rules and standards of conduct which are most commonly
accounted ‘moral’” from law: they are importance (some rules of law are, by contrast, of relative
unimportance); immunity from deliberate change; the voluntary character of moral offences; and
the “form” of moral pressure. Hart, as a positivist, does not believe that law is derived from
morality, for, whatever the historical influence may be in the given case, there is no higher order
to which law looks to take its authority. Furthermore, despite his espousal of a “minimum
content of natural law,” Hart is not saying that there is any necessary conceptual of definitional
link between the legal and the moral. He does however, acknowledge that the ultimate basis for
preferring the positivist thesis, which insists on a clear differentiation of law and morals, is itself
a moral one. “A concept of law,” he argues, “which allows the invalidity of law to be
distinguished from its immorality, enables us to see the complexity and variety” of issues such as
those that confront persons called upon to obey evil laws or those that German Courts had to
answer following the second world war.34 Hart’s differences with the naturalists come out well in
his “debate” with Fuller

It was Hart’s view that some laws, such as the Nazi decree at the entre of his debate with Fuller,
were morally deficient, but law nonethless. He argued that the creation of retroactive law was a
lesser evil to tackle such a problem than the application of the morally suspect rule. But for
Fuller, it was the height of moral confusion for a court to refuse to apply something it admitted
was law. However, in Hart’s defence it may be said that he is distinguishing two questions: the
identification of law and obligation to obey law so identified. Hart denied that the existence of
law entailed an absolute obligation of obedience. In holding this position Hart is limiting himself
to a small category of cases. Critics may argue that Hart is committed to the review that it is the
judge’s personal convictions about the law which determine its moral deficiency. An answer to
this, though hardly satisfactory in the context of Nazi germany or it may be feared other
situations where the question is raised, is that the judge may claim that “ the relevant moral

33
The Concept of Law, p.193
34
Ibid pp 208-209
criteria that are being transgressed are society’s own professed moral standards,” so that he is not
using “public power for private ends because the ends sought are not private purpses, but rather
serve the coherene of public purposes.”35

Ronald Dworkin’s Criticism on Hart

Prof.Ronald Dworkin has criticised Hart’s version of law as a set of rules that are to be identified
by means of the rule of recognition. Dworkin says a legal system cannot be conceived merely as
a code of rules. He says there are principles in a legal system besides rules. Dworkin makes a
distinction between rules and principles. He says legal system has to be conceived as an
institution based on certain standards, principles and policies. The question arises as to what is
the difference between rules and principles. Principle is the reason for a rule. Rules are
general.As Paton pointed out there is a vast gulf between the elasticity of a general principle such
as public policy and rigidity of a detailed rule. A principle is the broad reason which lies at the
base of a rule of law. Rules are more specific and detailed than principles

Dworkin has elaborated the logical difference between principles and rules. He says principle is
a standard that is to be observed, because it is a requirement of justice or fairness or some other
dimension of morality. For Example, “no one shall be permitted to profit from his own fraud, or
to take advantage of his own wrong” is a principle. In ​Riggs v. Palmer36, the defendant’s right to
inherit under the will of the man he murdered was challenged. The Courtreferred the principle
cited above as one of the ‘general fundamental maxims of common law controlled the operation
of legal rule and consequently held that Palmer was not entitled to the inheritance. Thus some
times law does not permit people to profit from their legal wrong.

According to Dworkin, the difference between legal principles and legal rules is a logical
distinction. Both sets of standards point to particular decisions about legal obligation in particular
circumstances, but they differ in the character of the direction they give. Rules are applicable in
an all-or-nothing fashion. Principles are a matter of more or less whereas rules area matter of yes
or no.
art holds that the judges have the discretion to create new legal rules through extra legal
standards when the existing law is not ascertainable and provides no guidance to the judge to
apply the law to certain situations. Hart is of the view that judges make a new rule by using their
discretion. This view was rejected by Dworkin. He says judges do not have discretion in the
strong sense. Rather a judge has a duty to appeal to certain principles and not to others. Hence
Judicial discretion is a discretion in one of the weak senses. According to Dworkin, the
principles are genuine, moral or political principles that judges are duty bound to take into

35
Per Belliotti, Justifying Law (1992), p.54
36
115 N.Y. 506 (1889),
account in their decisions. Though unwritten these principles are part of law. This aspect has
been ignored by Hart in his ‘The Concept of Law.’37

Lon Fuller’s Criticism on Hart

Hart is of the view that there are no logical connections between law and morals.Prof.Fuller
argues against the separation of law and morals. He says morality is implicit in law and it is
impossible to study and analyze law apart from its ethical or moral content. Fulleropines legal
positivists have committed the mistake of assuming that a rigid separation of the ‘is’ and ‘ought’
i.e., separation of positive law and morality is possible and desirable. Fuller rejectsHart’s
distinction between order and good order - the former meaning devoid of morality and latter
implying morality. Fuller says ‘Law considered merely as an order contains, then, its own
implicit morality. This morality of order must be respected if we are to create anything that can
be called law, even bad law. Law by itself is powerless to bring this morality into existence.’He
is of the view that ‘the authority to make law must be supported by moral attitudes that accord to
it the competency it claims - what Fuller describes as ‘external morality’. But, this is not enough
for law - without the internal morality of law itself. Fuller says Hart has completely ignored what
he calls - ‘the internal morality of law’.

According to Fuller, external moralities and internal moralities of law reciprocally influence one
another, a deterioration of the one will almost invariably produce a deterioration in other’. In
short, every law has its ‘internal morality’ and positivistic efforts to separate them are not just
difficult but one fundamentally misconceived.

Fuller has shown some anomalies in Hart’s doctrine of core and penumbra which is concerned
with the role of judges in a given fact situation. The fact situation may be covered by definite,
certain or authoritative law (core) or there may be uncertainty (Penumbra) where judges are
called upon to interpret the law to achieve the desired social purposes. In plain cases (core)there
is little need of interpretation and application of law is automatic, but the problem arises where
the case is problematic and uncertain. Thus, Hart does not favour liberal interpretation of statute
and is of the view that the judges should strictly adhere to the literal, formal or logical
construction of the law and desist from judicial creativity. Fuller demonstrates, some of the
anomalies in Hart’s doctrines of core and penumbra by illustrating the following examples.

(i) Supposing by a rule the parking of vehicles is prohibited in a public park. Obviously vehicle
-a motor car is one and the rule is applicable to such situations. But there may be cases where it
is not clear whether the rule applies to ‘bicycles’ or ‘tricycles or toy plane - etc.” Hart would not

37
Bayles, Michael. “Hart vs. Dworkin.” ​Law and Philosophy​, vol. 10, no. 4, 1991, pp. 350–360.
spare a child cycle, tricycle or toy plane while it should not be covered by the said rule.
Fullersays the functional purpose of such a rule is that parking of vehicle may lead to accidents
and to avoid such accidents, the rule should be interpreted in the light of social aims

(ii) Fuller demonstrates another instance of the untenability of Hart’s doctrine of core and
penumbra. Suppose there is an enactment. It shall be a misdemeanor punishable by a fine of five
dollars, to sleep in any railway station. The purpose of this rule is to give comfort to wear
passengers so that they may not keep standing on their feet and occupy benches of the state while
they are in transit. Thus ‘sleeps’ is the standard or settled instance. Two persons are brought by
the prosecuting police before the judge for violating the statutes. The first is a passenger who
was waiting at 3.00 a.m. for delayed train. He was sitting on the bench bulldozing and snoring.
The second is a man who brought a blanket and a pillow to the station and was intending to sleep
on the bench to pass the whole night. He was arrested before he could sleep on the benches. The
question arises which of the two cases presents the standard instanceof the word ‘sleep’. Hart
would convict both while Fuller the only one who wants to pass the whole night. It is the duty of
the judge, says, Fuller, to interpret the word ‘sleep’ used in the statute ‘to spread oneself out on a
bench or floor to spend the night, or as if to spend the night.’He says it is not possible to interpret
the statute without knowing its aims and purposes - what evil it purports to avert and what good
it is intended to promote. We must, in other words, be sufficiently capable of putting ourselves in
the position of those who drafted the rule to know what they thought ‘ought to be’. It is in this
‘ought’ that we must decide what the rule ‘is’.38

To summarize, it can be said that Hart is unquestionably a positivist particularly in the sense of
maintaining, for analytical purposes, the separation of law and morality. He acknowledged the
core of indisputable truth in the doctrines of natural law. He concedes that there is a minimum
content of natural law shared by both law and morality. He says law, coercion and morality are
different but related social phenomena. According to him, law is a union of primary and
secondary rules. Primary rules are duty imposing rules. Secondary rules are power conferring
rules. ‘The rule of recognition exists in every legal system’ is the central theme of Hart’s concept
of law.

38
Fuller, L. (2006). ​The morality of law​. 4th ed. Delhi: Universal Law Publ, pp.187-241.
CONCLUSION

The positive school takes for granted the developed legal system and proceeds logically to
analyse its basic concepts and classify them so as to bring out their relations to one another.
Positivism has emphasised the autonomy of the law and stressed the importance of a study
of law as a subject in its own right.Positivism has pointed to the need for rational investigation of
legal phenomena. Analytical Jurisprudence is that approach of method which considers law as a
body of actual interrelated principles and not merely a haphazard selection of rule inextricably
interwoven with a transcendental Law of Nature. It seeks to define all laws, classify all laws,
discover the essential features of every law and strives to measure every law inch by inch.

British legal positivism’s contribution to jurisprudence is extensive and profound.Legal

positivism at birth was part of the wider 18th century intellectual movement known as the
Enlightenment, which turned away from tradition, superstition and irrationality to embrace
empiricism and science. The command theory of law,despite its factual inaccuracies and
theoretical shortcomings, serves to make it clear that law is based in fact and not belief. It can be
said that Bentham and Austin made Hart and Kelsen possible. Twentieth century British
positivists removed much of the coarseness from the theory.

Jurisprudence, however, does not begin and end with the definition and description of formal
law. Legal positivists concede that theirs is not the only prevalent conception of the law. There
are many matters of interest about the law that are left untouched by legal positivism. How does
the normative content of the law emerge? What are the history, anthropology and sociology of
law?How do we measure the worth of particular laws? Do citizens have a moral duty to obey or
disobey the law? Do judges have a moral duty not to enforce heinouslaws of the kind enacted by
the Nazi regime? How do we find the moral standards by which we may identify such a duty? Is
the meaning of legal texts objectively ascertainable or are they socially constructed? These are
interesting and legiti-mate questions that must not be banished from the province of
jurisprudence.
BIBLIOGRAPHY

1. Jurisprudence and Legal Theory - GC Venkata Subbarao

2. Lloyd’s Introduction to Jurisprudence - Michael Freeman FBA
3. The Morality of Law - Lon L Fuller
4. Jurisprudence - LB Curzon
5. Jurisprudence - Suri Ratnapala
6. The Concept of Law - HLA Hart
7. Jurisprudence: The Philosophy and Method of the Law - Edgar Bodenheimer
8. McCoubrey & White’s Textbook on Jurisprudence - JE Penner
9. Lectures in Jurisprudence - NK Jayakumar
10. Introduction to Jurisprudence - Avtar Singh