Analytical Positivism (Legal Positivism) is a school of thought that analyzes law as it is (posited by human authority), completely separating it from what it ought to be (morals/ethics).
1. John Austin's Command Theory
Austin, known as the father of English jurisprudence, asserted that:
"Law is the command of the sovereign, backed by sanction, and obliging a duty."
The three essential elements of Austinian law are:
- Command: A general instruction issued by a political superior expressing a desire and a consequence for non-compliance.
- Sovereign: A politically superior entity who receives habitual obedience from the bulk of society and does not habitually obey any other human superior.
- Sanction: The threat of punishment or evil implemented to enforce compliance.
2. H.L.A. Hart's Union of Primary & Secondary Rules
Hart criticized Austin's "coercive orders" model, defining law instead as a union of two sets of rules:
- Primary Rules: Rules that impose duties on citizens to do or abstain from certain actions (e.g., criminal law).
- Secondary Rules: Rules that confer powers on authorities to introduce, modify, or adjudicate primary rules. Hart identified three secondary rules to address the defects of primary rules:
- Rules of Change: Steps to legislate and alter primary rules.
- Rules of Adjudication: Empowering courts to resolve disputes.
- Rule of Recognition: The ultimate criteria to identify valid laws.
3. Hans Kelsen's Pure Theory of Law
Kelsen sought to keep legal science "pure" of external elements like politics, sociology, history, or morality.
- Law as a Normative Hierarchy: Kelsen defined law as a system of "oughts" (norms). A legal norm derives its validity from a higher norm.
- The Grundnorm: At the apex of this normative pyramid lies the Grundnorm (basic norm), which is the absolute, assumed starting point of a legal system (e.g., the Constitution). All lower norms must conform to the Grundnorm to be valid.