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Legal Positivism

/ˈliːɡəl ˈpɒzɪtɪvɪzəm/

Jurisprudential Theory

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Definition

A school of jurisprudential thought holding that law is a social fact — it is what is enacted by a sovereign authority (legislature, court) and has no necessary connection with morality. Key proponents: Jeremy Bentham, John Austin (law is the command of a sovereign), and H.L.A. Hart (law as a system of primary rules + secondary rules of recognition). A law may be immoral but still valid if enacted through proper legal processes.

Examples

Under strict positivism, apartheid laws of South Africa were 'law' because they were enacted by the sovereign Parliament — their immorality did not invalidate them as law.

Hart's 'rule of recognition' in India is the Constitution — any rule recognised by the constitutional system as valid law is law, regardless of its moral content.

Case Study

In A.K. Gopalan v. State of Madras (1950), the majority took a positivist approach — Article 21 requires only procedure prescribed by law, however harsh. Any enacted law satisfies Article 21. Maneka Gandhi (1978) later departed from this strict positivism and adopted a natural-justice-influenced approach.

Key Cases

A.K. Gopalan v. State of Madras

1950

AIR 1950 SC 27

Early positivist interpretation of Article 21 — any procedure prescribed by law satisfies the constitutional requirement, regardless of fairness. Later overruled in spirit by Maneka Gandhi (1978). Classic example of legal positivism in Indian constitutional adjudication.

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Also Known As

positive lawcommand theory of law

Synonyms

positive lawlaw as it iscommand theory of lawanalytical jurisprudence

Antonyms / Opposites

natural lawmoral jurisprudence

Related Terms

natural lawjurisprudenceArticle 21due processAustin's command theoryHart's rule of recognition

Dictionary Entry

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