RONALD DWORKIN’S CRITICISM OF POSITIVIST THEORY OF LAWOn April 18, 2023 by Krishna Chaudhary
The analytical school of jurisprudence deals with law as it exists in the present form. It tries to analyze the first principles of law as they really exist in a given legal system.
The eminent jurists of analytical school of jurisprudence believe that the most significant aspect of law is its relation to the state. They treat law as a command which is emanated from the sovereign i.e. the state. Therefore, this school of thought is also known as the imperative school.
The exponents of this school are neither concerned with the past of the law nor concerned with the future of the law, but they are concerned to the study of law as it actually exists i.e. positus. Because of this reason that this school is also termed as the Positive School of Jurisprudence.
The prominent legal philosophers such as Bentham and Austin both are considered to be the fore runners of this school in England. Therefore, this school is also sometimes called as the Austinian School of Jurisprudence.
Legal positivism is considered as one of the most influential theory around the world. This theory was developed to a great extent by the great legal philosophers such as John Austin and Jeremy Bentham during the 18th and 19th centuries.
Subsequently, this school of thought was taken forward by other influential jurists such as Herbert Lionel Adolphus Hart and Joseph Raz. The views of all these jurists are significantly different but the common idea is same because they all analysis the law as it is.
Therefore, they have the common aim to help the people to understand the law of the land as it is not as it ought to be. Hence, the aim of legal positivist school of jurisprudence is to identify the law as it is laid down by a superior body and not how it should have been.
The legal positivists were of the view that law had no relation to the moral principles. Therefore, they separated law and moral principles entirety. However, they also believed that law often reflects the morality of the people that it controls. Therefore, they said that the law does not have to be in consonance with the principles of morality and ethics and rather law is what is laid down by the superior authority.
Theory of Legal Positivism
The expression ‘Legal Positivism’ has been used in many different senses by various scholars in their works. The word ‘positivism’ has derived its meaning from the Latin word ‘positum’, which means ‘law’ as it is laid down.
It suggests that the validity of a law can be traced back to its objectively verifiable source. It is essentially similar to scientific positivism, which prescribes that there is no effect from an abstract cause, consequently, the law can only be created by people instead of coming from any metaphysical or natural source.
For instance, the early legal theorists such as Bentham and Austin argued that either the law is result of the will of a sovereign i.e. state or the law originates from the command of a sovereign. Subsequently, H.L.A. Hart conceptualized the rule of recognition that distinguished the law from other social rules.
However, legal positivists oftenly claimed that there is no significant connection between law and morals and the analysis of legal concepts should be done differently from other sociological and historical inquiries and critical evaluations.
Legal positivism is a jurisprudential approach to interpret the law in positive terms and also emphasizes on law’s traditional nature that it is socially produced. According to legal positivism, law is synonymous with positive norms, i.e., rules enacted by legislators and referred to as common law.
For social norms to be declared law, formal criteria of origin, enforcement, and legal efficacy must all be fulfilled. Legal positivism does not accept divine precepts, reason, and human rights as foundations for law. In words of history, positivism evolved in opposition to classical natural law theory, which holds that the content of law must be confined by moral restrictions.
Legal positivism does not require an ethical justification for the content of the law, nor does it suggest a choice between obeying the law and not obeying the law. The laws were judged by Positivists only on the basis of how they were made, rather than on the concerns of justice or humanity.
This includes the belief that when judges decide issues that do not clearly fall within a legal rule, they are creating new law. The creating laws can take the shape of practising, deciding, or accepting specific legal procedures.
Legal positivism would be opposed in legal theory to sociological jurisprudence and legal hermeneutics, which analyze the particular circumstances of statutory interpretation in society. The word “positivism” was probably first used to draw attention to the idea that law is “positive” or “posited,” as opposed to being “natural” in the sense of being derived from natural law or morality.
Meaning of Positivism
The word ‘Positivism’ has 5 meanings:
- Laws are the commands.
- The analysis of the legal concepts is different from the sociological and historical inquiries and critical evaluation.
- The decisions can be deduced by pre-determined rules.
- Moral judgments cannot be accepted or protected by rational arguments.
- Law as it is has to be kept separate from the law ought to be.
Development of Legal Positivism/ Positivist Theory
Analytical or positivist theory is the most powerful or influential school of jurisprudence which deals with law as it exists in its present form. The exponents of this school considered that the most important aspect of the law is the relation of the law with the state. It is the systematic analysis of legal concepts.
Legal positivism is to understand the law as it is created and compulsory to accept it like without looking into the question of justice or injustice and the question of good or evil, and without knowing the past and future of the law.
Therefore, it is called as the positive school because it focused on positum which meanslaw as it not law as it ought to be. Legal positivism is the powerful and dominant theory. Although there are large no. number of critics, who offer their own explanation or interpretation. There are many jurists who describes Analytical school of Jurisprudence but the definition given by the Jeremy Bentham and john Austin are very significant.
Jeremy Bentham’s Legal Positivism
Jeremy Bentham is a prominent English Philosopher. He heralded a new era in the history of legal thoughts in England. He is considered as the founder of the positivism in modern sense. Even it has been said that Austin owes much to Bentham and on many points his views are merely the ‘paraphrasing of Bentham’s Theory. Dicey in his book ‘law and public opinion’ in 19th century has a scratched bantam’s ideas about the individualisms law and legal Reform which have affected the growth of English law in the positive direction.
In simple terms, Bentham’s definition of law is that law is the will of the sovereign. He was of the view that rules which are derived exclusively from the commands of a sovereign authority form the law of the land.
Therefore, he said that rules which are derived from the will of the sovereign would produce more clear and certain laws than the rules which are produced within a common law system. According to Jeremy Bentham, ‘law is 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 a class of persons, who in the case in question are subject to his power’. He believed that every law can be considered in light of different aspects.
- Source- law is the will of the sovereign.
- Subject- person or thing.
- Object- function, position.
- Extent- law covers a portion of land on which act is done.
- Aspect- Instructions or approvals can be.
- Force- to create an effect.
- Remedial state appendages- something attached with the state.
- Expression- desire.
Bentham clearly states that law is the will of the sovereign which regulates the conduct of the people on which it applies. Therefore, he stated that the law is what is laid down by the sovereign. The people who are subject to the law have to regulate their conduct in accordance with the will of the sovereign.
Moreover, Bentham says that the law does not have to be in consonance with the principles of ethics and morality. He stated that a sovereign is the highest superior body which does not owe any obedience or allegiance to any other body or group. However, he states that the power of the sovereign is not absolute as is the view of John Austin.
Bentham is of the opinion that the power of the sovereign can be limited as well as divided. Therefore, he is of the view that a sovereign can, by his own will, limit his own powers by entering into agreements with certain external agencies which would put restriction on the power of the sovereign.
Bentham’s concept of sovereignty is not absolute in nature like Austin and it can be restricted to some extent. According to him, another important feature of law is that it should be backed by sanctions. Therefore, the will of the sovereign must always be backed up by sanctions to become a law.
Bentham talked about both side of sanctions- the positive as well as negative, unlike Austin, who only talked about the negative side of sanction. Bentham was of the view that rewards should be given to those people who follow the law and the punishments should be inflicted upon those people who break the law. This was done to encourage people to be law abiding and moreover, discourage them to break the law. Therefore, Bentham said that law is the will of the sovereign backed by sanctions.
Jeremy Bentham’s Theory of Utilitarianism
Bentham is known for his moral philosophy ‘theory of utilitarianism’. According to this theory, the right aim of legislation is the carrying out of the principle of utility. In other words, we can say that an impeccable end of every law is the promotion of greatest happiness of the greatest number. According to him, the code of law is based on ‘greatest happiness principle’.
The utilitarian principle argued that there were no inalienable rights but only rights recognized by the government through law which should benefit the greatest no. of people. The main function of Bentham’s theory is to ensure community happiness by achieving four key goals: substance, abundance, equality, and security.
John Austin’s Legal Positivism
John Austin is a prominent British Philosopher and he is well known for his work related to the development of the legal positivism theory. He has made great efforts to deduce the meaning to the terms ‘moral rules’ from ‘positive law’. He is considered to be the ‘father of English Jurisdiction’. He confined his study only to the positive law and for this purpose applied analytical method.
The term ‘positive law’, Austin meant ‘laws properly so called’ as distinguished from ‘laws improperly so called’. He has defined positive law as ‘the aggregate of rules set by man as politically superior to men as politically inferior subjects’.
Even in Austin’s positive law, there is no place for ideal or justness in law. He also described positive law, in other terms, as consisting of commands of a sovereign backed by sanctions on those who do not obey the commands. Therefore, this is known as the Command Theory.
The basic features of command theory are as follows:
- Political sovereignty
Austin believed that a society which does not have political sovereignty means that does not have a law in a strict sense of positive law. Political sovereignty was regarded to be an important feature in the political society which considers and claims itself to be independent. Thus, Austin was of the view that where there is no political sovereignty, there is no independent political society and vice versa is also true.
Austin also distinguished positive law from positive morality. According to Austin, positive laws that can give resemblance to moral rules can make up for positive morality. And therefore, some rules of positive morality are co-extensive with the positive school of law. For example, rules against stealing something, assaulting anyone, killing someone, etc. Austin believes that whenever there is a conflict between positive law and positive morality then every time positive law would prevail over positive morality.
Hart’s Approach Towards Legal Positivism
Hart’s conception of Legal positivism, finds itself, in the form of criticism to Austin’s classical version of Legal Positivism. Austin’s theory of law identifies numerous rules that govern human conduct. He admits that some laws are set by God for humans, which are binding for humans but not morally acceptable, this is ‘divine law’. On the other hand, other laws are made by humans for each other, these laws are called ‘positive laws.’
According to him, other standards, conducts, etiquettes, custom, or international traditions as a source of law are not proper laws. He maintains that ‘a law’ is a command emanating from a sovereign and is backed by sanction in case of non-compliance. In this sense, most of the standards, conducts, etiquettes, etc. are not ‘laws’ because, firstly, they are informally recognized without any supreme authority, and secondly, their violation does not necessarily allow punishment.
Hart emphatically does not accept this notion of law, but he does not discard positivism for his understanding of the law. In his conception, the laws are distinguishable in form of ‘primary’ and ‘secondary’ rules of law. ‘Primary’ law means those rules that impose obligations on the subjects, in other words we can say that, these laws are similar to Austin’s idea of ‘positive laws’. However, Austin’s conception does not recognize ‘secondary rules’, according to Hart, which are rules about rules.
For instance, laws like the Indian Penal Code (IPC), etc. impose an obligation upon individuals to regulate their social behaviour. However, the closest examples for secondary rules becomes the Code of Criminal Procedure (CrPC), which empowers the authorities to formulate, amend, ascertain its compliance.
As an implication, this means that the set of primary laws and secondary laws forms the core of the concept of law. Hart emphasizes that the combination of primary and secondary rules is not sufficient to recognize it as a legal system. Thus, he has given an ultimate ‘rule of recognition’ which exists as a matter of official practice, and authorizes the deliberate creation of legal rules. For instance, the Constitution of India ultimately forms the cornerstone of legitimacy for all laws which are ever formed through parliamentary procedures.
Thus, Hart’s conception rejects an ultimate sovereign as a source for validating laws. Rather, he gives the ‘rule of recognition’ as an ultimate criterion to draw legitimacy from in a legal system. Further Hart said that the validity of these rules is not dependent on their general acceptability among the people, like in the case of other social rules. Here, the positivism of Hart takes shape. Since, it implies that for legal rules to acquire the validity of the law, they do not require moral legitimation from the people. Therefore, Hart, although does not accept that laws are commands, yet accepts that there is no relationship between morals and laws.
Dworkin’s Interaction With Legal Positivism
Ronald Dworkin (1931-2014) was one of the most influential eminent legal theorist. Over the period of 40 years, he has developed a sophisticated alternative to legal positivism. Dworkin’s theory has some resemblance with the traditional natural law theory of Thomas Aquinas but at the same time, his work seems to establish a third alternative (an interpretive theory of law) to legal positivism and natural law theory.
Legal Positivism has no articulate conception which makes it easy to evaluate from different perspectives, hence, Dworkin had to identify some fundamental grounds of Legal Positivism to critique it satisfactorily. In this process, he chose as his target Hart’s conception of ‘Legal Positivism’. This is not only because of his concern towards the defects in Hart’s theory, but according to him, Hart’s theory presented the most sophisticated view on Legal Positivism.
Dworkin’s Observations From Hart’s Positivism
Dworkin distinguishes between Austin’s and Hart’s conception of Legal Positivism in his criticism of Legal Positivism. He recognizes that Hart’s conception is more complex than Austin’s conception in various ways, firstly, Austin distinguishes the rules in terms of ‘primary’ and ‘secondary’ rules, and secondly, that Hart includes a vast understanding of rules, and rejects the basis of command as given by Austin.
Thirdly, Hart’s criteria for the validity of legal rules is ‘rule of recognition’, it was more sophisticated than Austin’s conception of rules as a command. This is because the legitimacy provided to the legal rules by a rule of recognition is conceivable more legitimate than the command given by a sovereign.
Ronald Dworkin’s Criticism on Legal Positivism
- Dworkin challenged a particular form of legal positivism which says that law is composed of rules only. He also criticized the discretion power of judges in their decision making where there was no existing rule which covers the dispute before them.
- Dworkin argued that law is complicated and is not composed of rules only, there are other standards (principles and policies) as well. He gave the example of principle “no man shall profit from his own wrong”. On the other side, policies are “a goal to be reached, generally an improvement in some economic, political or social feature of the community or society”.
- Dworkin denied the separation between law and morals given by positivists. In his view, this kind of separation is unacceptable as well as impossible, on this point he strongly disagrees with Hart.
Dworkin on ‘All Law is Enacted Law’
Another criticism given by Dworkin to Hart’s Legal Positivism is that Hart implies that all law is a product of deliberation support by people, and such laws are aimed to change the community or society through the general obedience that follows the creation of such rule. But Dworkin argues that Hart has ignored the idea that legal rights may exist even in the absence of any explicit legislation.
Legal Positivism, as we have already read, is one of the most powerful schools in the jurisprudence of law and relies on the law as a fact. The eminent jurists of this school only analyze the law as it is and do not consider the law as it ought to be. According to the opinions of great jurists such as John Austin and Jeremy Bentham, the moral principles do not determine the law of the land.
However, there are some positivists who do believe in the existence of the principles of ethics and morality and moreover, they are of the opinion that these moral principles are responsible, to certain extent, in shaping the laws.
Therefore, it can be clearly seen that the overall idea of the jurists of this school is same, but certain differences in their thinking does exist. The common notion of all the jurists belonging to the Legal Positivist School is that law is what laid down by the superior authority and backed by sanctions.
Moreover, they are of the common opinion that the moral principles are not to be taken in consideration while judging the validity of all laws. All laws are valid which emanate from the determinate superior and is backed by sanctions. However, there are certain shortcomings of the Legal Positivist School such as it fails to elucidate upon any kind of legal system and determines sanctions as the only basis of law.
The concept of absolute sovereignty given by John Austin is challenged by International Law as well as fundamental rights that are available to the individuals. Although there are certain limitations, but Legal Positivism is considered as the most influential school of thought in jurisprudence.
- Dr. B.N. Mani Tripathi, Jurisprudence and Legal Theory.
- Dr. N.V. Paranjape, Jurisprudence and Legal Theory.
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