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Legal Positivism

Positivism was a reaction against natural law theory. According to positivism, law is a matter of what has been posited (ordered or decided) It confines study of law “as it actually exists i.e., positus” irrespective of its past or future. Positivism is the view that law is a social construction. They treat law as the command emanating from the sovereign i.e., state. Positivism seeks to define law not on content but on criterion. The two types of positivism are - Analytical positivism and Pragmatic positivism. The most important aspect of law is its relation to the state. It was initiated by Jeremy Bentham (1748-1832) carried forward by John Austin had been modified, and revitalized. Analytical positivism, is the command of political authority whose force is not dependent on their moral virtues, historical origins, or sociological effects.

Pragmatic positivism - treats law as a resultant of social facts and social forces, similar to sociological jurisprudence) is the result of the Austrian jurist Hans Kelsen (1881-1973) and the two dominating figures in the analytic philosophy of law, H.L.A. Hart (1907-92) and Joseph Raz.

John Austin- He is famous for his writings “ The Province of Jurisprudence Determined” in 1832. Influenced by his Professor Bentham, he wanted to reform the English law and that is positive law. His goal was to transform law into a true science. To him, law is the command of a sovereign requiring his subjects to do or refrain from doing something. There is an implied threat of ‘sanction’ if the command is not obeyed. Starting point of Austin theory is his definition of independent and politically organised society and sovereign. Austin theory based on (a) Command-different from request and wishes. (b) It has a element of fear. (c) Penalty for disobedience.