The Analytical or Positivist School

Think of a referee in a football match. His job is to apply the rules as they are written: was the goal offside, was the tackle a foul? He does not stop the match to ask whether the offside rule is wise; that is a question for the body that makes the rules. The analytical jurist takes the referee's stance toward law. He asks what the law is, how its concepts fit together and where its authority comes from, and he treats the question whether the law is good as a separate question for the moralist and the legislator. This separation of law as it is from law as it ought to be is the heart of legal positivism.

Figure: The anatomy of Austin's command theory: the sovereign issues a command, the command imposes a duty, and the duty is backed by a sanction

1. Meaning and Characteristics of Legal Positivism

Positive comes from the Latin positum, that which is laid down. Positive law is law posited by human beings, as opposed to natural law, which is said to be discovered by reason. The school is called analytical because it analyses the basic concepts of a mature legal system (sovereignty, right, duty, sanction, person), and imperative because its classic version treats law as a command. Its creed was put by Austin himself: the existence of law is one thing; its merit or demerit is another. An unjust law does not cease to be law merely because it is unjust.

Positivists do not approve of whatever the law says. Bentham, the founder of the school, was the most radical law reformer of his age. His point was that you can criticise the law clearly only if you first describe it honestly. Hart made the same argument in 1958: keeping law and morals apart lets us say plainly, 'this is law; but it is too iniquitous to be applied or obeyed'.

2. Jeremy Bentham: Founder of Utilitarian Positivism

Jeremy Bentham (1748 to 1832) laid the foundations of English positivism. A Fragment on Government (1776) attacked Blackstone for confusing the description of English law with its praise. An Introduction to the Principles of Morals and Legislation (1789) set out the principle of utility. His most important work of legal theory, Of Laws in General, was written long before but lay among his manuscripts and was published only in the twentieth century (Hart's edition appeared in 1970). This is why Austin, not Bentham, was long seen as the founder of analytical jurisprudence.

Bentham's philosophy opens with a famous sentence: 'Nature has placed mankind under the governance of two sovereign masters, pain and pleasure.' Law is to be judged by its utility, its tendency to increase happiness and diminish pain, and its proper end is 'the greatest happiness of the greatest number'. The phrase originated with Francis Hutcheson; Bentham popularised it as the watchword of law reform. He demanded codification of the uncertain common law (he is credited with coining that word, as he coined international), and he dismissed natural rights, in Anarchical Fallacies, as 'nonsense upon stilts'. Rights, for Bentham, are the children of law, not of nature.

Bentham divided jurisprudence into expository (law as it is) and censorial (law as it ought to be). His command theory was richer than Austin's: a law may command or permit, there are four sanctions (physical, political, moral and religious), and a sovereign's power may be divided and limited by express convention. Austin kept the command idea but narrowed it.

3. John Austin and the Command Theory

John Austin (1790 to 1859), Bentham's disciple, was the first professor of jurisprudence at the new University of London. His lectures appeared as The Province of Jurisprudence Determined (1832); the fuller Lectures on Jurisprudence were published after his death by his widow, Sarah Austin. His aim was to mark off law properly so called from everything that merely resembles it, and because he gave the school its systematic form he is the father of the analytical school and of English jurisprudence.

For Austin every law properly so called is a command: the expression of a wish that another do or forbear, coupled with the power to inflict an evil if the wish is disregarded. The person commanded is under a duty, meaning he is liable to the evil, and the evil is the sanction. Command, duty and sanction, said Austin, are inseparably connected terms. A command is a law when it is general, obliging a class of persons to a class of acts. Positive law is law set by a sovereign to the members of an independent political society.

Austin's sovereign has four marks. He is determinate, a definite person or body, not a vague mass such as public opinion. He receives habitual obedience, not occasional submission, from the bulk of the society. And he is not in the habit of obeying any like superior. Two consequences follow: the sovereign is legally illimitable, since any legal limit would be the command of a higher sovereign, and sovereignty is indivisible. In Britain, Austin located it in the King, the House of Lords and the electors of the House of Commons.

4. Austin's Classification of Laws

Austin's classification is often blurred in textbooks on one point: positive morality. Laws properly so called are all commands: the laws of God and human laws. Human laws set by political superiors are positive law. But human laws set by men not as political superiors, such as the rules a club lays down for its members, are also true commands and so laws properly so called, though not positive law; Austin placed them in positive morality. Laws improperly so called are not commands: laws by analogy, set by opinion (honour, fashion, international law), which are also positive morality, and laws by metaphor, such as the laws of nature. So Austin split positive morality between the two great classes.

Several kinds of law strain the theory. Customary law becomes law, Austin said, only when the courts adopt it, by the tacit command of the sovereign; judge-made law is the tacit command of the sovereign through his delegates; constitutional law cannot bind the sovereign and so is largely positive morality; and international law, having no sovereign above States, is not law properly so called. Austin also admitted exceptions to the command idea: declaratory laws, repealing laws and laws of imperfect obligation (without sanction). Critics saw each explanation as a strained fiction.

5. Merits and Criticisms of the Command Theory

The most famous historical objection came from Sir Henry Maine (Early History of Institutions, 1875). Maharaja Ranjit Singh, the Sikh ruler of the Punjab, held absolute power, yet never issued a general command altering the civil law. His subjects lived by the immemorial customs of villages and families, which he enforced but did not make. Here was a perfect Austinian sovereign whose subjects lived under law that was plainly not his command. The theory, Maine concluded, fits a modern Western State with an active legislature, not a society whose law lives as custom.

6. Hart's Concept of Law: Beyond the Gunman

H.L.A. Hart (1907 to 1992), Professor of Jurisprudence at Oxford, restated positivism in The Concept of Law (1961), which he called 'an essay in descriptive sociology'. Austin's model, he said, is the gunman situation writ large. A gunman who says 'your money or your life' may leave you obliged to comply, but you are under no obligation. Law creates obligations that people recognise even when the risk of punishment is small. A theory that cannot tell a tax demand from a robber's demand has missed something essential.

Hart's second objection concerns the habit of obedience. A king, Rex I, is habitually obeyed. He dies and his son Rex II succeeds. On Austin's theory Rex II's first commands are not law, because no habit of obeying him has formed; yet in every real system they are law at once. This is the problem of continuity, explained only by a rule entitling Rex II to succeed. And a statute of Rex I remains law long after his death: the problem of persistence, again explained only by an accepted rule. Laws also bind the very legislators who make them, which a command addressed to others cannot do.

Hart therefore rebuilt the theory around rules. Primary rules impose duties. A society living by primary rules alone would suffer three defects: uncertainty (no way to settle which rules exist), a static quality (no way to change them deliberately) and inefficiency (no final way to settle whether a rule was broken). Each is cured by a secondary rule, a rule about the primary rules.

At the foundation lies the rule of recognition, whose existence is a social fact: it exists because officials actually accept and use it, as with the rule that what the Queen in Parliament enacts is law. Hence the internal and external points of view. An external observer sees only regular behaviour and predicts punishment; a participant accepts the rule as a standard for himself and for criticising others. A legal system exists when citizens generally obey the valid rules and officials accept the secondary rules as common public standards.

7. Hart on Morality, Open Texture and the Postscript

Hart kept law and morals separate, but he accepted a minimum content of natural law. Given certain obvious facts about human beings, and given that they generally aim at survival, any lasting legal system must protect persons, property and promises. These facts are Hart's five truisms.

Hart also recognised the open texture of law, a phrase borrowed from Friedrich Waismann. General words have a core of settled meaning and a penumbra of doubt. A rule forbids vehicles in the park: it plainly covers a motor car, but what of bicycles, roller skates, toy cars or an aeroplane? In the penumbra the judge must exercise discretion, in effect making law. Fuller replied with a war memorial truck mounted on a pedestal, arguing that meaning depends on the purpose of the rule (Note 65).

Ronald Dworkin argued that law also contains principles not identified by any rule of recognition, and that judges lack strong discretion in hard cases. Hart's reply appeared in the Postscript to the second edition, published posthumously in 1994, where he accepted soft or inclusive positivism (a rule of recognition may incorporate moral criteria) while insisting on judicial discretion where law is incomplete. See Note 64.

8. Raz, Holland and Salmond

Joseph Raz, Hart's doctoral student, argued that law necessarily claims legitimate authority, and can guide only if its content is identifiable without re-opening the moral questions it settles. Hence the sources thesis: law depends only on social sources such as legislation, precedent and custom. This is exclusive (hard) positivism, against the inclusive positivism of Hart's Postscript. Earlier, Austin's method was carried on by Holland, who defined jurisprudence as the formal science of positive law, and Salmond, who moved the centre of gravity from the sovereign to the courts. On the Continent the most rigorous positivist was Kelsen (Note 12).

9. Bentham, Austin and Hart Compared

10. Positivism in Indian Courts

Evaluation. The analytical school gave jurisprudence its vocabulary and discipline, and Hart's model remains the starting point of modern legal philosophy. Its weakness is its narrowness: it describes the skeleton of law without the living body, which is why the historical, sociological and realist schools (Notes 13 to 15) arose in reaction.

11. Frequently Asked Questions

Q. What is Austin's command theory of law?
A. Law properly so called is a general command of a sovereign, imposing a duty and backed by a sanction. The sovereign is a determinate human superior, habitually obeyed by the bulk of an independent political society and not habitually obeying any like superior.

Q. Is positive morality law in Austin's scheme?
A. Partly. Rules set by men who are not political superiors, such as club rules, are commands and so laws properly so called, though not positive law. Rules set by opinion, such as honour, fashion and international law, are laws improperly so called. Both fall under positive morality.

Q. What did Hart concede in the Postscript?
A. In the Postscript (1994), replying to Dworkin, Hart accepted inclusive positivism: a rule of recognition may include moral criteria of validity. He maintained that judges have a genuine discretion where the law is incomplete.

See also: Note 9 (natural law), Note 12 (Kelsen), Note 38 (sovereignty), Note 55 (natural law versus positivism), Note 61 (Austin versus Hart), Note 64 (Hart versus Dworkin), Note 65 (Hart versus Fuller).