This article aims to understand the concepts of positive morality and analytical positivism.
Positive AND Morality AND Analytical AND Positivism AND John Austin AND Imperative Theory AND Analytical Positivism AND Apex Court
Positive morality and Analytical positivism are two concepts that were mainly deliberated by a well-known jurist, John Austin. John Austin in his book- The Province of Jurisprudence Determined discusses these concepts. The former is a legal theory also known as the Imperative Theory of Law. This theory explains law as a command by the sovereign. In case of violation of such a command, penalties are imposed on the wrongdoers. The latter, Positive morality is linked with Analytical Positivism because it is considered as one of the sources of law according to positive law despite imperative theory being devoid of morality. This is because morality in general sense is very different from the concept of positive morality.
Analytical school is a school of jurisprudence which is positive in nature. John Austin is the jurist who was instrumental in popularising this school of law.
Legal positivism in the conventional sense is that theory which is devoid of morality. Analytical positivism can be described as a legal theory that views the law as a command of the sovereign without taking into consideration the moral aspects. Customs are excluded from the purview of analytical positivism as a source of law. This is because the followers of Analytical Positivism do not place reliance on historical legal principles. They do not consider pedigree analysis to be an appropriate aspect in case of formation of laws. Furthermore, future predictions with respect to law are also considered to be irrelevant by them. Their focus is only on the law as it exists presently.
It is also known as the Imperative theory of Law.
The essentials of this school of thought are:
1) Command of the sovereign
2) Duty of the people
3) Sanctions imposed by the sovereign on the people in case of disobedience
Analytical school is very adamant that the laws imposed by the Sovereign must be obeyed. Thus, in case of disobedience sanctions in the form of penalty or punishment are imposed on the wrongdoers. In order to facilitate the Sovereign to impose sanctions, its powers are not restricted at all. Full-fledged independence is given to the sovereign without any making a provision for Separation of Powers, leading to lack of checks and balances. This is why judicial precedents are not considered as a source of law under this theory. This would mean that judicial review by the judiciary would also not be inculcated as a means of amending the pre-existing laws made by the sovereign?
Imposing sanctions, according to Austin is the only way to obligate people to follow laws which makes his theory fallacious to this extend. Negatively inducing in the minds of people the duty to follow certain laws tamishes the foundation and the basic idea of law as a whole; laws are framed in furtherance of the interest of people. Imposing a law on the same people goes against this intention of the framers of law.
The Apex Court in the case of Minerva Mills Ltd. v. Union of India discussed the theory of Analytical Positivism to some extent. The Apex Court expressed that if a law imposes a duty on the State, this duty cannot be disregarded merely because the law is not enforceable in a Court of Law. The Hon'ble Supreme Court gave the example of the Directive Principles of State Policy (hereinafter referred to as DPSP) in the Indian Context. The
Directive Principles of State Policy cannot unlike Fundamental Rights be enforced in courts. However, they create a duty of the State which needs to be acted upon. This makes such law a legal rule despite the people not having a right with respect to them. In case of any rule, if a right is not conferred on the people even though a corresponding duty is imposed on the sovereign the right would not cease to exist as a rule of law. Positive law and positive morality are two separate yet interrelated concepts. Positive morality is considered by the followers of legal positivism as one of the sources of law. It basically includes those customs which are actually practiced by different members of a society. According to Austin, positive morality is that which is free of any goodness or badness. The term morality when used without context would refer to human laws in general which have a goodness attached to them. When referring to positive morality, the facet of goodness or badness is absent. Positive morality incorporates those human laws which are disconnected from the right or wrong or the good or bad. They are simply those laws that opine on the conduct of human behaviour.
- Minerva Mills Ltd. V. Union of India, (1980) 3 SCC 625) 2. https://plato.stanford.edu/entries/legal-positivism/(last visited on 31 August 2023)
- https://www.legalserviceindia.com/legal/article-5691-analytical-school-of-jurisprudence.html(last visited on 31 August 2023)
- Austin's Theory of the Separation of Law and Morals by Samuel E. Stumpf (Volume 14 Vanderbilt Law Review, 1960)
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.