BOOK CHAPTER REFLECTIVE NOTE

ON

CHAPTER 4

‘ENGLISH ANALYTICAL POSITIVISM’

Ian McLeod

Legal Theory. London, UK: Red Globe Press London.

1999. 186 pp. ISBN: 978-0-333-67490-1

ZARANA ACHARYA

22BBL120

(1493 Words)

INTRODUCTION

1. Ian McLeod’s chapter- "English Analytical Positivism," in his book "Legal Theory,"

provides an important perspective on legal theory and jurisprudence. It emphasises on

the vast analytical positivist school of thought focussing on the contributions of

renowned English scholars and academicians like John Austin and H.L.A Hart. This

chapter deftly studies the limitations of earlier theories and shows how Hart’s work on

analytical school address these topics. The author also highlights common issues

relating to the essence of law, its history, and the extent of authority’s functions in his

work, which is located to the intra broader framework of legal philosophy and
 jurisprudential debates. McLeod’s work is a precious tool for legal scholars,

academicians, philosophers, and all those interested in the development of legal ideas

and its developments for modern legal systems, as legal positivism and its critics are at

the core of controversies and disputes. This chapter is an interesting piece of literature

for upcoming research and discussions in the atmosphere where debates and

discussions about the concepts of law and the nuances of legal reasoning always take

place.

UNDERSTANDING THE ANALYTICAL POSITIVISM

This chapter provides a brief historical background along with a solid basis for the issues that

follow by tracing the origins of English analytical positivism to the works of Jeremy Bentham

in the beginning.

McLeod with delving into John Austin's Command Theory of Law, which seeks to outline the

scope of jurisprudence by defining the nature of law. Austin adopts a positivist stance, asserting

that jurisprudence deals with positive law, i.e., laws created by political superiors for political

inferiors. He further refines this by stipulating that the political superior must be a sovereign

and introduces the concept of a command, which can be conveyed directly or indirectly.

‘The ideas or notions comprehended by the term command are the following. (1) A wish or

desire conceived by a rational being, that another rational being shall do or forebear. (2) An

evil to proceed from the former, and to be incurred by the latter, in case the latter not comply

with the wish. (3) An expression or intimation of the wish by words or other signs.’ (p.66)
To qualify as law in Austin's theory, a command must be both express and general, issued from

a sovereign to a subject, and non-compliance must result in the sovereign imposing a sanction

on the subject.

However, Austin's theory faces criticism and challenges in practice:

• The Nature of the Command: Though Austin demands orders expressly, sometimes,

the law is determined by interpretation. Courts have the authority to consider the factors

other than the explicit language of a legislation, such as judicial policy or the statute’s

objective, which can change the interpretation of an apparently clear legislative text.

• The Nature of the Sovereign: There are concerns about Austin's insistence that the

sovereign be a person and enjoy the society's regular obedience. What occurs, for

example, if a Parliament is dissolved without a new one being called? Austin's thesis,

which contends that the voter possesses sovereignty, comes out as tense, and poses

questions regarding habitual compliance.

• The Nature of the Sanction: The need for a sanction or punishment is more suitable

for criminal law, but it creates problems in circumstances involving civil law. For

instance, nullity in wills or contracts could not meet the criteria for a penalty since they

frequently have fictitious or delayed effects and do not apply to humans.

Further moving with the chapter, the author discusses about a major work under analytical

school of jurisprudence that is H.L.A Hart’s “The Concept of Law” which was first published

in 1961 and later received a second edition in 1994.

Hart makes no effort to define law precisely, rather, he concentrates on identifying and defining

a collection of basic components that tackle important jurisprudential difficulties.

related to orders backed by threats? How does legal obligation differ from, and how is it related

to, moral obligation? What are rules and to what extent is law an affair of rules?’ (p.71)

Hart's analysis revolves around several crucial distinctions that form the foundation of his

analytical positivism:

1. Personal Habits vs. Social Rules: Social rules are characterized by a sense of

obligation and societal disapproval when violated. In contrast, personal habits, like

after-dinner coffee drinking, do not have the same obligatory nature.

2. Being Obliged vs. Being Under an Obligation: Hart highlights the difference between

being obliged (acting due to fear or pressure) and being under an obligation in the legal

sense. For example, a person handing over money to a gunman may be obliged, but

they are not under a legal obligation.

3. External vs. Internal Aspects of Rules: External aspects can be observed from the

outside, while internal aspects are apparent only to those subject to the rule. These

internal aspects encompass critical reflection, demands for conformity, and normative

language like "ought," "must," "right," and "wrong."

4. Primary vs. Secondary Legal Rules: Primary rules impose obligations, which cover

a wide range of actions, both positive and negative. Secondary rules, categorized as

rules of recognition, change, and adjudication, address issues of uncertainty, change,

and dispute resolution within the legal system.

Lastly, he acknowledges a "minimum content" of natural law consisting of widely accepted

norms rooted in fundamental human needs, including prohibitions on violence, demands for

compromise, property protection, and conflict resolution channels. It challenges conventional

ideas.

ANALYSIS

The author, in this chapter skilfully traces the fundamental distinctions at the core of analytical

positivism. They clarify the differences between personal habits and social rules, highlighting

the societal obligations associated with the latter by wonderfully explaining that while personal

habits, like after- dinner coffee drinking, often stem from individual preferences, the essence

of social rule, such as standing up for the national anthem, lies in its capacity to inculcate a

sense of societal obligation along withs societal disapproval. It also explores the nuances of

being obliged and under an obligation, emphasizing the complexities of this concept.

Furthermore, the chapter delves into the differentiation between external and internal aspects

of rules, underscoring that the internal aspects extend beyond subjective feelings and

encompass critical reflection, conformity demands, and normative language usage like "ought"

and "must." Moreover, the introduction of the key concepts of primary and secondary legal

rules, categorising them as rules of recognition, change, and adjudication, forming the

cornerstone of our understanding of legal rules and obligations within the legal system provides

a great understanding of the concept.

In my opinion, the author's work in this chapter is persuasive, catchy and informative. It offers

a thorough examination and exploration of English Analytical Positivism, effectively blending

analytical positivism with elements of natural law. The distinctions outlined in the chapter are

both thought-provoking and challenging to conventional perceptions of legal rules, habits, and

obligations. The complexities presented reflect the depth of the subject matter and encourage

readers to reflect on the multifaceted nature of the legal system.

law based on universal moral principles inherent in mankind which are essential for societal

existence has particularly fascinated me. From this point, readers are urged to unravel the

complexities involved in the law system and investigate its basic doctrines as part of a

noteworthy effort towards legal philosophy.

The chapter resonates with well-known scholar on legal theory – Hans Kelsen who is famous

for his Pure Theory of Law. Kelsen’s investigation of the construction of legal systems

relates with the English analytical positivists who treat law as a unit composed of norms.

Although Kelsen’s methodology is highly systematic and considers the hierarchy of norms,

he agrees with positivism which implies the difference between law and morality. It provides

an extra dimension when one is attempting to understand the essence of analytical positivism

as well as its place in legal philosophy.

Through this chapter, the author enables the readers to interpret the key features of Analytical

Legal Positivism such as interpreting the first principles of law, systematic expositions of

legal ideas accurate and intimate understanding of the basic working concepts of all legal

reasoning, treating a law as the command of sovereign and emphasising legislation as the

source of law.

CONCLUSION

Finally, McLeod’s chapter,” English Analytical Positivism,” is a valuable contribution to legal

theory and jurisprudence. Studying analytical positivism and its branches by Austin and Hart

McLeod brings us more knowledge about legal field and jurisprudence. The present chapter is

in a wider discussion concerning the essence of the state of law in history and modernity. The
chapter by McLeod forms a lighthouse in the dynamics of legal theory and philosophy, inviting

professionals and scholars to reassess the basics of law. It firmly places itself at the centre of

contemporary scholarly discussions and arguments, contributing perspectives and enriching

discussions on progress in the area.