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1. Explain how identification and separation theses in legal positivism developed from Bentham and Austin’s criticisms of natural law.Legal positivism is the study that studies what law is rather than what law ought to be through analysis of the laws in question. There is strong emphasis in this stu...

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1. Explain how identification and separation theses in legal positivism developed from Bentham and Austin’s criticisms of natural law.

Legal positivism is the study that studies what law is rather than what law ought to be through analysis of the laws in question. There is strong emphasis in this study that law should be under the understanding of what it is in reality. Legal Positivism can be divided into two sub-categories to achieve better clarity. These two are the separation theses and the identification theses. While being in contrast to natural law, legal positivism jurists had acknowledged that is not to be seen as competitive to it as they are merely different perspectives as to how law is to be viewed and acted upon. Legal positivism is more concerned with what law is rather than what law should be in relation to morality. Hence, it could be seen as another interpretation as to how law is perceived to men. The separation theses is, as the name suggests a separation between what law is and what law ought to be. While natural law examines the morality in laws and therefore concluding whether it is deemed valid, Austin believes that it should be more about what law is. An example of what natural law in relation to immorality is a person deceiving another by stating mangoes are vegetables instead of a fruit. While this is an immoral act, one should not be punished by law for simply deceiving someone about a minor detail. Positivism understands that this act is immoral but are unwilling to make it as an illegal conduct that would make a person liable to being punished by the law. But contrastingly, natural law would deem morality as law and hence being valid law. The positivist view is that if a law has passed the necessary processes to be enacted, then it shall be law notwithstanding the morality of it and therefore making it valid and holds people accountable to it. This separation theses is important as it distinguishes between the naturalist thought and the legal positivism’s take on it. Next, the identification theses is concerned with the question of what law is through analysis and conceptualisation of the law. It seeks to understand what the law is through the process of analysing it and if it is deemed suitable, only then will it be classified as a valid law and has the right to regulate on people’s obligations and punishments. The issue remains that while naturalists agree with this to a certain extent, they still take consideration of the morality of the law and derive the laws from a source of morality. Both Bentham and Austin criticised this belief. Bentham criticised the natural law by stating that there needs to be differentiation between expository and censorial jurisprudence. Expository jurisprudence deals with what law is. While censorial jurisprudence is concerned with what law ought to be through analysis of the environment and the morality behind such laws. Bentham is a strong proponent to what law is in contrast to what law should be. Hence, proving that legal positivism jurists

do adhere to the differentiation between jurisprudence through criticising natural law.

expository

and

censorial

There are a few criticisms that Bentham and Austin had towards Natural Law. The first of that being natural law’s notion that the sovereign is regarded as leviathan. This means that the sovereign answers directly to God and therefore, the people need to obey them without question. Bentham states that the sovereign should be a person or body that commands the obedience of the people while Austin believes that “for sovereignty to exist, it requires a bulk of a given political society are in the habit of obedience to a determinate human superior”. This brings meaning to the general populace need to have support for the sovereign in order for them to exist and command the obedience of the people where there exists no duplicity in allegiance to a sovereign or also known as a political society. Austin further states that the notion of pacta regalia that means a ruler is a covenant upon himself and successors. Both Bentham and Austin raised criticism of Natural law where the sovereign needs to be obeyed if they fulfilled all the requirements to be one. The next criticism is Natural Law’s notion of command. Natural law believes that bad laws are not valid and therefore shall not be enforced. Bentham was of the view that laws are to be of the King’s command and had nothing to do with morality. If they were commanded by the king, then the laws are to be considered valid. Austin however had a narrow approach where he states that the command must be a wish by a rational being that another shall forbear. Austin viewed command in a loose manner where there are less formalities that need not come from a sovereign. However, there are a few problems that arise from this theory. First there may be coercion involved as the laws are not of the sovereign’s commands making the people enacting them prone to coercion by others or their own needs. Next, is continuity problems where if the sovereign dies, the next sovereign will enact new laws and therefore raising concern over whether old laws were valid and enforceable under a new regime. Lastly, there will be multiple layers to the enactment of laws where the sovereign allow judges or any other bodies to enact them. This multiplicity of layers will result in contradictions and flaws in the law system. Legal positivism has separated the notion of what law is from morality standards. Finally, the criticism is on Natural law’s notion of sanctions. Bentham believes that order means the command of sovereign backed by sanctions. He believes that humans are guided by pain and pleasure. By relying on this belief, he suggests that human will respond to sanctions as they are going to follow what pleasures them and abstain from what pains them. He further states that commands will be meaningless unless there is sanction in form of either pain or pleasure being set. He sets out four types of sanctions being physical, political, moral and social, and religious. Austin however believes

that sanction should refer to power and purpose to inflict upon evilness as a punishment. He believes that sanctions cannot be a reward but in contrast, a punishment. This shows that legal positivism is not concerned with whether law is moral or not but rather, what law is and not what it ought to be. (1078) 2. Explain how Hart’s analysis of law as social rules provides the foundation for his conception of law as the union of primary and secondary rules.

H.L.A Hart analysed law through his criticism of Austin’s work. He believed that Austin’s Command Theory was insufficient as a person giving command must be internally supreme and externally independent. This works by the ruler not having to be answerable to another body that oversees their actions. He further believes that in the command theory, the sovereign had only imposed law. He thinks that a command should be any order that was given by a sovereign towards the people. Hence, making the Command Theory too narrow in its definitions of a command. Hart was of the opinion that this theory is insufficient in explaining the acceptance and obedience of the law by the people. He states that if there exists a succession of rulers, continuity of orders from previous rulers will be questioned of its legitimacy. This renders the notion that orders must continue by the Command Theory improbable due to the inevitable consequence of people questioning the laws. Hart disagrees to arbitrariness of absolute power to the sovereigns as current governments are dictated and constrained within the confines of the nation’s respective constitutions. Hart does not believe in a law being defined as orders being backed by threat. Instead, law should be a legal implication to certain conducts in order for proper enforcement by authorities. Laws should be rules that empower certain organisations under the government in order to function. An instance of this very notion is the federal constitution conferring powers into branches of the government in performance of their specified duties. Hart believes that laws derive from multiple sources such as customs, religion and social normalities and not merely as a tool for social order. This belief would mean some laws are inherent from substantive sources. Law must be examined and derived through its effects on the society and whether the people would adhere to them. Through this, he formed an understanding of law as a form of social construct in which people follow these man-made rules because of social pressure. Hart believes that the failure to adhere to these social rules will amount to a societal sanction where others criticise you for your abhorrence to the social rules. These social rules can further be categorised into two which are social conventions and rules that constitute obligations. Social conventions can be described as normal day to day behaviour that we partake in as a social interaction between humans such as greeting others. A failure to follow social convention is met with people being mad or distancing themselves from you. While rules that constitute obligations is rules that are considered as obligations through our understanding of

morality. These rules bear greater consequences if you do not follow them as the society put much more pressure in conformity to such rules. Hart believes that law is a product from the union of primary and secondary rules. One cannot exist without the other as they would not constitute a valid law. Both are crucial in its part in forming a valid law for the people to follow and adhere to. Primary rules can be understood as rules that gives a normative guideline on what you should or should not do. It is mainly concerned with physical acts such as do not steal or do not kill. They impose social rules that specify on obligations, duties and prohibitions. However, only adhering to primary rules will not bring a favourable outcome. One of the problem that would rise from only following primary rules is uncertainty. A primary rule merely supplies the obligation or duty or prohibition without further specifying the nature of it. The wordings from primary rules may be misconstrued or could be abused as a loophole. The next problem is they are static. As social rules derive from customs, they are prone to be arbitrary and would not in certain cases suit the environment as time passes. This static nature of primary rule would not be fair to the evolving society and would not deliver justice to the best of its abilities. Third, is efficiency. As primary rules are embedded in customs and traditions, they are prone to not being interpreted correctly by a panel of judges of a different culture and custom. The meaning and purpose behind a primary rule may be misunderstood and thus causing inefficiency. With all the shortcomings of only performing the primary rules, we must also commit to the secondary rules. Secondary rules allow for the people in power to apply some changes to suit the current circumstances. This is done to correct the defects present when only adhering to primary rules as mentioned before. There had been a few rules to apply secondary rules. Firstly, the rules of recognition to tackle uncertainty. This rule is used to differentiate between rules that are laws and rules that are not. Secondly is the rule of change to solve static problem from primary rules. Rules need to be changed to suit the change of the times. Lastly is the rule of adjudication to solve inefficiency. This rule is concerned with the judiciary and the judges who preside in them. It is pertinent as without judges to rule over decisions and disputes, chaos would ensue where people take matters into their own hands. These secondary rules are very crucial in attaining justice as without it, primary rules could not function as a valid law....