CLASSICAL

POSITIVISM

BEGINNING OF CLASSICAL
POSITIVISM

Classical positivism is the theory of law

developed in England by Jeremy Bentham
and John Austin that formed the
foundation for any subsequent theory
that can be characterized as "positivist."
Few modern positivists look upon classical
positivism uncritically; in fact, much of
the most important work of H.L.A. Hart
was dedicated to correcting the errors of
classical positivism.

DEVELOPMENT

The principles of classical positivism were

developed in the 18th and 19th centuries by
Bentham and Austin. Bentham and Austin
wrote in reaction to Blackstone's theory of the
common law, which had become the
dominant theory of English law before the
19th century. Blackstone's theory of law,
which set for itself the task of explaining the
source and authority of judge-made law, was
held to be inadequate by Bentham and Austin
not only because it failed to explain statutory
law, but because it failed, in their eyes, even
to explain the authority of common law.

PRINCIPLES

The first principle was the separability

thesis: that there is no necessary
connection between law and morals.
The second principle was the "command
theory of law .Bentham believed that a
law must be reducible to a command
that one person might give another.
Austin too believed in the command of
sovereign.
The third principle was the "sources
thesis the legal system's "sovereign"

FEATURES

Positive law regards law from the position of its

legitimacy.
Positive law is law by the will of whomever made
it.
Human-made laws that oblige or specify an action.
law that applies at a certain time (present or past)
and at a certain place, consisting ofstatutory law,
andcase lawas far as it is binding.
law actually and specifically enacted or adopted by
proper authority for the government of an
organized jural society.

ORIGIN OF CLASSICAL
POSITIVISM
H.L.A. Hart defended legal positivism in his famous
Holmes Lecture, he sought to do so "as part of
the history of an idea."' In his hands this idea
grew out of two philosophical traditions. One of
them was utilitarianism, the belief that the moral
assessment of states of affairs must be based on
their contribution to happiness, while the other
was "the important truth that a purely analytical
study of legal concepts, a study of the meaning of
the distinctive vocabulary of the law, was as vital
to our understanding of the nature of law as
historical or sociological studies."Together these
two ideas led to a "simple but vital distinction"
between "law as it is and law as it ought to be.

VERSIONS OF LEGAL
POSITIVISM

The idea that putative laws can be

immoral and still remain "valid" did not
need the genius of Hobbes or Bentham to
be discovered. It was always known,
because it is a trivial observation.
Aristotle, for example, distinguished
between the "legally just" and the
"equitable," which is "a correction of legal
justice." A law thus can be "legally just
even though it is inequitable. To be able to
say this, one must presuppose that the
inequitable law is law.

CONTEMPORARY LEGAL
POSITIVISM

The debate between the "classical" legal

positivists and natural lawyers was, at bottom, a
debate about metaphysics and human nature:
Both agreed that a theory of law must be part of
a broader account of what the world was like, but
had strongly divergent views on the correct
account of the latter question. The contemporary
debate is about the sort of connection that exists
between natural law and human law. In this
version of the debate, the term "natural law" is
treated as a synonym of true morality and legal
positivism has been transformed to the claim that
human law is separate or distinct from natural
law that is, from morality.

DIFFERENCE AND
SIMILARITY

According to this view, then, the major

difference
between
classical
and
contemporary legal positivism, and the
major advance of contemporary legal
positivism, is the replacement of a
simplistic command theory of law with a
more sophisticated account of law as
grounded in social convention.
Similarity being the legal validity of law