 Although there are traces in earlier periods of what might be

regarded in modern terminology as a postivist approach for

instance the view of the great rivals to the Stoics , the
Epicurean school – the impetus in this drirection can be
traced to the Renaissance with its emphasis on the secular
studies of science and humanism.

 In England a strong movement was set on foot, which is still

far from exhasuted, to base philosophical speculation on a
more solid and empirical basis comparable in method to that
which had attained such sucess in the realm of pure science.
 Inspired by the sceptical beginnings formulated by Descartes,
this movement was given powerful impetus by John Locke
and his sucessors, of whom the most important was David
Hume. One outcome of this movement was of particular
significance for legal and moral philosophy.
 This was a clear demarcation between the laws of the
physical universe, which were regarded as governing the
behaviour of all physical entities which laid down normms of
human conduct.
 Until the eighteenth century no clear line was drawn
between the physical laws which dealt with propositions
about the world, and which could be refutted by empirical
evidence showing their non-applicablilty, and normative rules
laying down standards of human conduct.
 Hume pointed out theat there are really two realms of human
inquiry, one in the field of facts, which is concerned with what
is actually the case, and whose proposition can be treated
as either true or false, and other in the field of “ought” that is
what ought to be the case. Hume argued that we cannot
ever demonstrate what ought to be for instance the rule of
moral behaviour as an inference from something that is in
fact the case.

 Humes discussion was principally concerned to distinguish

between fact and moral obligation. Although important
distinctions exists between human laws and morals, human
law shares with morals the charactheristics feature of being
normative since it lays down rules off conduct rather than
stating facts.
 The demarcation between ‘is’ and ‘ought’ also carried with it
serious implications for natural-law thinking since it seemed to
dispose of the idea that the truth of particular rules of natural
law could be demonstrated even if the rules were shown to
be universally observed.

 Natural law thus began to look not like a higher system of law
or justice whose truth was self-evident or demonstrabel by
reason but rather a mere pretentious name for moral rules.
 The idea of the utilatarains was that the behaviour of makind
was dominated by the influence of pain and pleasure. By
increasing pleasure and diminishing pain human hapiness
would be extended.

 For this purpose numerical standards were adopted, each

mans happiness being considered the equal in value of that
of any other man, so that the test of utility was what serve the
happiness of the largets possible number.

 Bentham principle was aimed at maximizing human

happiness according to the slogan the greatest happiness of
the greatest number.
 Although Bentham rejected natural law with scorn for him
natural rights were not just nonsense, but “nonsense upon
stilts” and his arguments in favour of utility were based
squarely on the fact that human reason could find no other
rational justification for preferring one course to another.
 Bentham own principle that one mans happiness was of
equal worth to anothers owed much to the widely
established natural right to equality. The principle of utility was
itself a metaphysical principle whose truth could not be
demonstarated for what is used to prove everything else
cannot itself be proved.
 Despite a certain naivite in his belief that happiness could be
virtually quantiffied in almost arithmethical terms, Bentham
work laid a solid juridical foundaation for much of that reform
of the law which was one of the most crying needs of the
early nineteenth centruy.
 The utiitarian school provided not so much the necessary
logical foundation the appropriate cliamte for the move
towards legal positivism. This had two aspects, First the firm
dsitinction between law as it “is” and as it “ ought to be”,
Second the tendency to trat law as a science desrving to be
ranked with the other sicences both in its aims and its
method.
 Bentham linked his discussion of morals in terms of utility and
his rejection of all natural law thinking, with the frim convction
that law could only be properly understood if it was treated
as an autonomous field of study free from all issues of morals,
religion, and the like.

 The great criticisms of natural law was not only that such a
law was really mythical but that it led to muddled thinking by
confusing legal with moral issues.
 What the law is and what is ought to be are entirely different
issues and each is the proper subject matter of inquiry of a
distinct field of study which bentham himself designed as
expository and censorial jurisprudence.

 The great advatage claimed for this method was that it

made for clear thinking by distingusihing between legal and
moral oblgation.
 The tendency of the legal psitivist to procalim the autonomy
of his subject and to assert its right to be treatedd as a
science had an important influence on the futre of lega
theory which in turn as is usual in such cases has provoked its
own reaction.
 The word ‘Positivism’ was devised by the French philosopher
Comte in the ifrst half of the last century to designate his own
particular philosophic system, but this was in fact largely
derived from philosophic attitudes which were part of the
cliamte of the period and which may be described as
positivist in a more general sense.
 Austins view of the scope of this particular science was by no
means clearly thought out. Austin was mainly impressed by
the fact that law as a self-contained body of rules applicable
to human society operated by means of a system of
conceptual thought and his aim seems to have essential
features of this conceputal concept.
 This involved not only endeavouring to determine the actual
structure of law and of the the functioning of a legal system
but also giving a scientific exposition of all the fundamental
notions whihc provide the framework for the articulation of
such a system.
 In the first place the criticism is raised that a legal theory
confined to analysing funndamental concepts tends to
induce a frame of mind where legal concepts are regarded
as possessing a certain inherent structure and tha any
developments of law which disregard this are illegitimate. This
may impose an undue restricitioon on the legal pricessin
adapting the law to new and changing social and economic
conditions.

 The second criticism of the conceptual approach attacks the

attittude that legal problems can be solved by means of
logical analysis disregarding the role that policy plays in
arriving at legal decisions.
 The third criticism however to be heard among modern jurits
can be probably be directed with more justice even againsts
Austin himself. Austin seemed to overlook that the level of
investigation on which he contemplated that his science of
positive law would operate was really on that of what we
may call second-order facts namely the rules of law as
contained in the statues, recorded cases and law books
associated with given legal system.
 Positivist legal theory is usually associated today with a
disbelief in the possibility of finding an absolute standard or
nrom outside the legal system itslef by which the validity of a
rule may bee tested and if necessary found wanting.

 Logically its is true that the positivist is not bound to be a

moral relativist claiming that moral systems are relative to
time and place and that there is no way of deciding
between them sace on the footing of personal choice. For a
positivist may still insist that the validity of law is distinct from
the question of its moral rightness even while adhering to
some system of absolute moral values.
Thank you