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Legal positivism is one of the most influential jurisprudential ideas. The term “positivism” is derived from the verb “posit,” which means “to put down.” Positivism is also referred to as empiricism. Law


Legal positivism is one of the most influential jurisprudential ideas. The term “positivism” is derived from the verb “posit,” which means “to put down.” Positivism is also referred to as empiricism. “Law is a product of the human intellect, and legal positivism is concerned with facts.” According to legal positivists, the law is a “social reality,” which means that it may be found in actual practice and institutions. Legal positivists are concerned about what law it is not what law ought to be. Legal positivists reject theological and metaphysical approaches because, according to them, legal positivism is all about something that we can prove or disprove, which we can find in actual practice. For example, if we ask someone where the law comes from, that person may answer that law may come from some sources of law that differ according to different positivists, such as parliaments, monarchs, or other rulers, drawn from the legislation. So, here are some sources of law that we can prove or disprove, but if we look at the metaphysics and theological approaches, we can’t provide some proof whether God exists or not, we can’t find the same, and the same with metaphysics, because if one positivist says that natural rights exist because we were born as human beings and the other says that they don’t exist, then natural rights do not exist. That is why, to find solutions to their issues, legal positivists shifted from a metaphysical and theological approach to a scientific method.

There are many differences and disagreements among legal positivists, but they all share the same view of the law and morality. All legal positivists agree that there is no necessary connection, but there may be a contingent connection, which means that if we are going to define law, there is no need to engage with moral frames in defining the law, or we can say that there is no need for the investigation of law in defining law. Even if many legal systems are based on moral precepts, legal positivists believe that there is no particular association between the law and morality. A law doesn’t fail to be law simply because it breaches some moral principles that are not in and of themselves laws. A morally objectionable regulation, on the other hand, will be a law if it is adopted by the set methods and conditions for validity. The morality of a society can permeate the law in a variety of ways. According to legal positivists, morality has legal power only when it is converted into a legal rule by an appropriate authority, such as a legislature or a court. As Kelsen argued in his Pure Theory of Law that a legal rule and a moral rule are distinct, though they may often coincide in content.[1] Legal positivists have many ways of understanding what law is, but they all agree that what law is should be separated from what law ought to be. Jeremy Bentham is a well-known legal positivist who offers his philosophy on what constitutes law as well as a utility principle. In this essay, we shall discuss his legal theories, his concept of common law, and the principle of utility.

Bentham’s definition of law

Bentham is often regarded as the genuine founder of legal positivism. Bentham proposes two types of jurisprudence: a) Expositorial jurisprudence, which explains what law is, and b) Sensorial jurisprudence, which deals with the utilitarian concept. His legal positivism is based on sensorial jurisprudence, which is the idea or philosophy of utilitarianism. Bentham’s ideas on what constitutes law were disclosed in his book An Introduction to the Principles of Morals and legislation which asserts “law everywhere was regarded as the legislative will of a sovereign”[2].  Law, according to him, is not something found in nature. It is a social construct that legislatures have created. Bentham believed that a legal system based only on a sovereign’s expressed legislative will would provide better and more definite laws than the common law system. His inclination for the legislation was based on utilitarian moral philosophy, which he firmly believed in. According to Bentham, a law is “an assemblage of signs declarative of a volition conceived or adopted by the sovereign in a state, concerning the conduct to be observed in a certain case by a certain person or class of persons, who in the case in question are or are supposed to be subject to his power: such volition trusting for its accomplishment to the expectation of certain events which it is intended that such declaration should upon occasion be a means of brinkmanship.”

Nature has placed mankind under the governance of two sovereign masters, pain and pleasure[3]. It is entirely to them to both suggest what we’ll do and decide what we shall do. The standard of good and evil is fastened to their throne on the one hand, and the chain of cause and effect is fastened to their throne on the other. They control everything we do, say, and think, and any attempts to break free will only serve to demonstrate and reinforce it. He derived his famous concept of utility from this, which argues that an activity should be allowed or rejected based on its proclivity to increase or lessen the enjoyment of the party for whom the benefit is at stake. Bentham was satisfied that a legal system whose rules are derived only from the directives of sovereign authority is preferable to the common law system when judged by the criterion of public utility. In contrast to the former, which creates clear, authoritative, and specific legislation, the latter produces a convoluted and irrational mass of judgments that represent the interests of lawyers but not the public. Bentham was an outspoken supporter of the codification of all laws.

The will of the sovereign

The sovereign may establish the nature of the law through conception or adoption[4]. Conception occurs when the essence of the law is formed by the sovereign directly, such as when the Queen enacts a statute establishing a new rule of conduct in Parliament. Adoption occurs when the sovereign bestows legitimacy on a regulation written by another individual. This could occur in one of two different ways. First, the sovereign may embrace laws that already exist and were created by other people. This is referred to as ‘susception’ by Bentham. As a result, sovereigns may accept the laws established by their predecessors, maintaining the continuity of the legal system. Second, sovereigns may announce in the future that they will follow laws made by someone else. This is the circumstance where an Act of Parliament authorizes and legitimizes the creation of laws by an official. In Bentham’s words, such an official wields has the power of ‘imperative’.

Bentham’s disdain for common law 

Bentham’s definition of law is stipulative[5]. It links law only with legislation promulgated by a sovereign, even though, as he admits, this was not the prevailing idea at the time. Bentham approved this concept on the utilitarian grounds that it would please a greater number of people. According to him, judges have far too much freedom in deciding cases under the common law system, and laws are formed at their discretion. However, when legislators develop a piece of legislation, they must keep in mind that it must be full in design. If that formula is followed, we will have a fully codified legal system, and judges will have fewer opportunities to create law. He believes that laws should be stated and that the best-posited law is applicable. There is no room for utilitarianism after the law is adopted. Judges must simply obey. He prefers legislation over common law because common law is formed by judges, the facts of the cases are already in existence, and the courts decide what law is at that time. The issue here is that the parties have no opportunity to discover which laws govern them. Bentham prefers to establish legal standards first and then move forward. He wants the law to be codified. When we have legislation, the law applies to the entire public or a specified set of persons. However, under common law, the decision is only applied to specific parties. He prefers adopted laws over customary and judicially imposed laws.


There are many differences between legal positivists in terms of what law is, but they all agree on one issue: there is no necessary connection between law and morality but it may be contingent. Another topic on which legal positivists agree is that a difference should be made between what law is and what law ought to be. All legal positivists have their ideology when it comes to what law is. However, in this article, we went over Bentham’s definition of law and his thoughts on the common law system. So, according to Bentham, the law is something that belongs to the sovereign, and he was opposed to the common law system because, in this system, the legislatures have the power to make laws, and in individual instances that come before them, the authorities have the authority to dictate and proclaim relevant law.

Author(s) Name: Jyoti Dahiya (National Law University and Judicial Academy, Assam)


[1] Suri Ratnapala, Jurisprudence (1st Edition, Cambridge University Press 2009) 25

[2] Suri Ratnapala, Jurisprudence (1st Edition, Cambridge University Press 2009) 30

[3] Suri Ratnapala, Jurisprudence (1st Edition, Cambridge University Press 2009) 31

[4] Suri Ratnapala, Jurisprudence (1st Edition, Cambridge University Press 2009) 33

[5] Suri Ratnapala, Jurisprudence (1st Edition, Cambridge University Press 2009) 35