JURISPRUDENCE 2.11 SOME ADDITIONAL POINTS TO NOTE
ADDITIONAL ROUGH NOTES.
Criticism of Positivism: Dias notes
Austin confused de facto sovereign with de jure sovereign. Who is this sovereign. Is it vested in one or many bodies? As in Powell V Apollo Candle Co the court noted that the Legislature can delegate its power to Legislate.
Austin’s straightforward assertion is too simple.
Sovereign boides cannot be said to have limitless power as they may not even be able to arbitrarily change the constitution.
In realithy, the uncommanded commander has to obey international law and respect fundamental human rights.
People still obey unwritten laws. Buckland notes that it is not Austin’s definition is not reasoning at all.
Praise: contributed to analytical discipline. Helped to propagate the positivist doctrine. Salmond spoke of rules. Why did he disregard international law? State obey international law on the basis of comity, reciprocity and self interest.
On Natural Law: in Golak NAth V State of Punjab, that an unjust law is no law. There are a host of cases in this regard.
Thrasymacus: that the law existed to defend and protect the few rich.
Heraclitus: that the law existed to protect the many poor. Callicles held a similar view.
Criticisms of Historical School.
Is there such a thing as “common conscience” especially in modern societies.
Utilitarianism: what does the law impact in society. Which sociological looks ar what should the law impact? Ctiticism that it assumes that all humans are rational. Good for helping us quantify law.
Realism criticism: on the point that judges must operate within certain parameters.