JURISPRUDENCE 2.8 POSITIVISM
POSITIVISM
is related with the love of order-Dias the ought and is may be related in that the judge in exercising discretion bring considerations of what he thinks ought to be law.
Analytical Positivism: law made by man for man. A rigid separation of law from morals. Law as it is is different from law as it ought to be.
The Primitive Positivism is the imperative school. See John Austin who saw law as the command of the uncommanded commander.
However, all commands are not lawful and law does not always consist of a command. This creiticisms gave rise to Analytical Positivism. H.L.A Hart in “Concept of Law” 1963. Who noted that a society should have secondary rules which can be subdivided into 3 viz
Rule of recognition: Which enables us recognise lawful commands. E..g the constitution voids inconsistent laws.
Power conferring rules: wherein individuals amend/change their status. E.g. law of contract, marriage and so on
Rules of adjudication: Addressed primarily to judges.
Analytical positivism thus analyses the legal system in the context of rules that apply. Hans Kelsen in “theory of norms” noted that law means doing things with rules. That law is a system of rules. This was criticised by Professor Dworking in “Taking Rights Seriously” who noted that the rules cannot function without certain fundamental standards and principles (which apply to subject specific areas) like duty of care, good faith, utmost good faith. Further that “principles” cut across the entire legal order. Principles like non-profit from wrong. See Riggs V Palmer, Re Sigworth. In essence the legal system is not just a system of rules… it should conform with the fundamental principles which override rules.
Criticism:
- Each law should have a minimum basic morality. As drafters of legislation usually have the “ought” at the back of their mind. i.e. they seek to make laws that makes the state what it ought to be.
- The question who is the sovereign? Is it the government, people, crown, king or who exactly? In Powell V Apollo Candle, the court held that the legislature can delegate its duties (See also R V Mwenya). The question then is; who is the sovereign?
- Austin tried to give the sovereign unlimited power. Meanwhile, in present day democracies and leaderships, it is difficult to exercise arbitrary power. E.g. it is difficult to amend the constitution. See Goodluck’s 6 year term bid.
- The Uncommanded Comander is still subject to international law. Further more, he must respect fundamental human rights.
- Dias noted that what happens when another person is sworn in? does the laws of the former sovereign cease to be law? Moreover, it would be difficult to erase and amend all the laws. (Military Of the 1999 Constitution amendment).
- What happens to customary law which has not be enacted or given by a sovereign? People still obey them.
Although Dias notes that they could be credited for helping to introduce clarity in law.
