According to Dias the positivist movement started at the beginning of the 19th century. It represented a reaction against the a priori methods of thinking which turned away from the realities of actual law in order to discover nature or reason the principles of universal validity. Hart pointed out that the term positivism has many meanings which one of them is that laws are commands. Law as command is associated with Jeremy Bentham and John Austin that both are the founder of the British positivism.
Positivists do not deny that judges make law. As matter of fact, a majority of them admit it. They also acknowledge the influence of ethical considerations of judges and legislators as a judge or legislators adopts proposition when is considered to be moral and just. What they maintain is that it is only incorporation in precedent, statute or custom that imparts a quality of law to precept. Even if an unjust proposition is embodied in precedent or statute, it will be law.
A total separation of the law as it is and the law as it ought to be cannot be maintained. However, there must be some degree of separation for practical purposes. Such a separation is desirable in the interest of society. A separation between is and ought is useful in providing a standard by which positive law can be evaluated and criticized. The importance of being able to tell as clearly and simply as possible whether this is or is not, a law at any given point of times is obvious. The introduction of morality will create difficulties. Morality is a diffuse idea and no one maintains that everything which is moral is law. As the area of law is bound to be narrower than that of morality, its boundary should be made as clear as possible.
Positivism is related to Analytical Jurisprudence which its renown chief exponents are Jeremy Bentham and John Austin. Bentham advocated an imperative theory of law which the key concepts are those of sovereignty and command. He expounded these ideas with far greater subtlety and flexibility than Austin. In addition, he illuminates aspects of law largely neglected by him. Sovereignty in Austin’s concept is postulated as an illimitable and indivisible entity, whereas in Bentham’s concept it is neither.
According to Austin positive law has four elements viz., command, sanction, duty and sovereignty. A law is a command of the sovereign backed by a sanction, whereas duty and sanction are correlative terms, the fear or sanction supplying the motive for obedience. In addition, Austin put international law under positive morality which means international law is not law as it lacked the main ingredient of sanction. However, nobody will accept the view that international law is not law.
Sovereignty defined by Austin is, “If a determinate human superior, not in the habit of obedience to a like superior, receives habitual obedience from the bulk of a given society, that determinate superior is sovereign in that society and the society is a society political and independent. The sovereignty may be an individual or a body or aggregate of individuals. Austin expounded that sovereignty must be illimitable, indivisible and continuous. As regards illimitability, he denied that it could be limited. Further elucidation, substantial areas of constitutional law do not consist of laws, but positive morality, because sovereignty cannot be under a duty as he cannot command himself.
Jeremy Bentham is a leading theorist of Analytical Jurisprudence who pioneered and be the founder of utilitarianism. He developed this idea of a utility and a utilitarian calculus in the Introduction to the Principles of Morals and Legislation in 1781.
Bentham believed that the end of legislation is the greatest happiness of the greatest number of people. He defined utility as the property or tendency of a thing to prevent some evil or to produce some good. The consequences of good and evil are respectively pleasure and pain.
In obvious explanation, the purpose of law in utilitarianism is to bring pleasure and avoid pain. Pleasure and pain are the ultimate standards on which a law should be judge. A consideration of justice and morality disappears from this approach. He further expounded that pain and pleasure are not only explain our actions but also help us in defining what is good and moral. He believed that this foundation could provide a basis for social, legal, and moral reform in society.
There are Bentham’s principles of utility viz.:
- It recognizes the fundamental role of pain and pleasure in human life;
- It approves or disapproves of an action on the basis of the amount of pain or pleasure brought about i.e, consequences;
- It equates good with pleasure and evil with pain; and
- It asserts that pleasure and pain are capable of quantification.