Positivism in jurisprudence?, Austin's definition of positivism

Positivism

Definition:

Legal positivism is the view that law is fully defined by its existence as man-made law. Function of positive law is to define the natural law and make it explicit; to make it effective thru sanctions. The positivism approach has a recurring problem of the separation of law from moral law and natural law.

Introduction:

Legal positivism is the most powerful school of thought in jurisprudence. The positivism movement began at the beginning of the 19th century. The analytical school is positive in its approach. The jurists of the school consider that the most important aspect of the law is its relation to the reason, this school is also known as the imperative school.

Meaning:

Positivism is the name for the scientific study of the social world. Its goal is to formulate abstract and universal laws on the operative dynamics of the social universe. A law is a statement about relationships among forces in the universe. In positivism, laws are to be tested against collected date systematically.

The term ' positivism' has 5 meanings:

1. Law commands.

2. The analysis of the legal concepts is distinct from the sociological and historical inquiries and critical evaluation.

3. Pre-determined rules can deduce decisions.

4. Moral judgments cannot be accepted or defended by rational arguments.

5. Law, as it is (actually), has to be kept separate from the law that ought to be. ( associated with positivism)

Austin's work on Positivism:

The work of the English jurist John Austin (1790-1859) remains the most comprehensive and important attempt to formulate a system of analytical legal positivism in the context of modern state.

The first six lectures the most influential part of his work were published in 1832 under the title of " The province of jurisprudence Determined" and the rest was published posthumously in 1861. After his death he achieved greater fame and became the founder of what was popularly called the Analytical School.

John Austin (1790-1859) was born in the United Kingdom. He was the founder and father of the Analytical school of law.

He is known for his theory of sovereignty and legal positivism mentioned in his book "Province of Jurisprudence".

In his initial career, he has served in the army for 5 years and also in the chancery bar of the UK in 1826, he was appointed as the professor of jurisprudence at the University of London.

He spent two years in Germany thereafter, studying the ancient Roman law and civil law which later on become his very ideologies in the framing of Positive school of law. Austin abandoned teaching in 1833. After working for the government at certain reputed designations, he died in1859 in Surrey, UK.

He confined his field of study to the positive law. Prof. Allen thinks that it is proper to call the Austin's school as imperative school. This name he gave on the basis of Austin's conception of law. "Law is Command". Austin's initial task to be a critical analysis of the law as it is. In his first lectures he sought to elucidate law and his concept of law is an imperative one which is based on sovereignty. According to him law is only an aggregate of individual laws. In his views all laws are rules the majority of which regulate behavior.

Austin define:

Austin defined as a rule laid down for the guidance of an intelligent being having power over him. Austin defines law in two parts:

i. Proper Law

i(a). Law set by God to man

ii.(b). Laws made by man for man

ii. Improper Law

Human law is divided into two heads:

I. Positive Law

II. Positive Morality

These positive laws are set by political superiors as such or set by the man not acting as political superiors but acting in pursuance of legal rights conferred by the political superiors. Only these laws are are the proper subject matter of jurisprudence.