Question 3 Juris PDF

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Question 2Prof Hari Chand described legal positivism as theories which are commonly, if misleadingly, contrasted with the classical natural theories .. which treat law as a prescription deriving its ultimate authority from purposive morality, by reference to which its law quality may be judged. In l...

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Question 2 Prof Hari Chand described legal positivism as theories which are commonly, if misleadingly, contrasted with the classical natural theories .. which treat law as a prescription deriving its ultimate authority from purposive morality, by reference to which its law quality may be judged. In looking at the legal positivism, we look at the command theory of law under Legal Positivism. This matters are more towards looking at the law by Bentham and Austin where the law is command of a sovereign backed by a threat of sanction. Both of these classical positivism looks at the sovereign powers to command and obedience that can be ascertained without looking at specific criterions of the sovereign. The description of the sovereign and the law backed up by sanctions are therefore divided into three aspects that is, it has to be of certain form a command, or an order, it must come from a sovereign and not any other body of persons or institution and it has to be backed by a threat of sanctions. This means that sanctions is the most important criteria for law to be distinguished from other commands of sovereign that is present in a society. Classical positivism is divided into two and these two positions have different interpretation to what is a sovereign. In Bentham’s idea of what is sovereign is then interpreted broadly, for him “by a sovereign I mean any person or assemblage of persons to whose will a whole political community are supposed to be in a disposition to pay obedience and that in preference to the will of any other person” this means in his definition of sovereign, Bentham puts on emphasis on a person that has or manifests obedience towards a political community and the sovereign whether a single person or assemblage will have a monopoly of obedience and does not have any competition with any other similar forms of political authority. For Austin, his definition of a sovereign is where sovereignty exist …where the bulk of a given political society are in the habit of obedience to a determinate common superior, and that common superior is not habitually obedient to a determinate human superior. This means that for Austin, a sovereign is a person is his own power and does not follow anyone else, the sovereign is firm in power and sits on political supremacy. The obedience by people are in a form of habit and this can be seen commonly with countries with kings or queens. In Bentham’s view however, the notion of command is relatively broad and open. He gives out romantic ideals on the king giving out commands not only through words or commands but through any other means. In Austin’s case, a command from a sovereign is specific, in his words command is “an evil to proceed from the former and be incurred by the latter, in case of disobedience. It is an expression or intimation of the wish by words or other signs.” Which in this case is a clear directive given out by the superior power. Issue of commands looks at whether there should be clear directive on a dead superior which the notion of obedience is looked upon into. In sanctions, for Bentham, he proposes that sanctions under his command theory of law, albeit being utilitarianism, mostly depends on the matters of pain and pleasure, inciting that coercive powers is needed for a rule to be followed, his rationale to this method is that human nature would choose pleasure than pain and where the his concept of sanctions equals to rewards or punishment. His methods looks on where

command alone is not enough and sanctions in form of pain (punishment) or pleasure (rewards) is needed. Different from Bentham, Austin idea of sanctions are more towards punishments, it needs to be painful in nature in order to give life to a sanction. Austin rejects the idea of reward which does not fit in Austin’s command of theory law. The most important thing to look at in classical legal positivism is that it does not separate the law with politics, with politics being defined by both earlier. The important contribution by legal positivism would be that law must be free from moral or natural evaluation where the criteria of identification set up by both theorist are different and vast but one thing that is similar that is the power of sovereign to make the law. (739 Words)...