UNIT 6

GENERAL LEGAL POSITIVISM

Legal positivism is a school of thought in jurisprudence that holds that laws are rules made by human beings and that there is no inherent or necessary connection between law and morality. According to legal positivists, law is a matter of what has been posited (ordered, decided, practiced, and so on). See the case of Aoko v. Fagbemi (1961) which highlighted the principle that laws must be written and promulgated before they can be enforced, reflecting the positivist view that laws are human-made and the case of Oputa v. Nigerian Police Force (2010) where the court emphasized that law enforcement agencies must operate within the confines of the law, reinforcing the positivist principle of adhering strictly to enacted laws. See also section 1 of the Nigerian Constitution (1999) which establishes the supremacy of the Constitution, a principle aligning with the positivist view that law derives its authority from recognized social facts and institutions.

Key points on legal positivism includes the following;

1. Separation of law and morality: this is where legal positivism insists on a clear distinction between law as it is (de facto) and law as it ought to be (de jure). This means that a law’s validity is not dependent on its moral value.
2. Command theory: this is where legal positivism often emphasizes that law consists of commands issued by a sovereign and backed by threats of sanctions.
3. Social fact thesis: this is where the existence and content of law are determined by social facts and not by its merits.
4. Conventional nature: this is where law is viewed as a matter of social convention.

JOHN AUSTIN'S LEGAL POSITIVISM

John Austin is a foundational figure in legal positivism, best known for his "command theory" of law. He posited that laws are commands issued by a sovereign to whom the people have a habit of obedience, and are backed by threats of sanctions in case of non-compliance. See the case of Attorney General of Lagos State v. Attorney General of the Federation (2003) which discussed the division of powers, aligning with Austin's idea of sovereign authority within the constitutional framework and section 6 of the Nigerian Constitution (1999) which defines the judicial powers of the Federation, supporting the concept of a sovereign command structure within the legal system. Key points of Austin's theory includes the following;

1. Command: this is where law is seen as the command of the sovereign.
2. Sovereign: this is the authority who commands and is habitually obeyed by the majority.
3. Sanction: this is the enforcement mechanism or punishment for non-compliance.
4. Habit of obedience: this is where the populace must habitually obey the sovereign.

However, criticisms of Austin's theory also includes;

1. Complexity of modern states: this is where modern legal systems are more complex and decentralized than Austin’s model suggests.
2. Normative aspects: this is where Austin’s theory does not account for the normative aspects of law, such as rights and duties.
3. Customary law: this is where Austin’s theory struggles to explain the validity of customary law, which is not necessarily commanded by a sovereign.

HANS KELSEN'S LEGAL POSITIVISM

Hans Kelsen is known for his "Pure Theory of Law," which seeks to describe law as a hierarchy of norms, with each norm deriving its validity from a higher norm, ultimately tracing back to a basic norm (Grundnorm). See the case of Lakanmi v. Attorney General (Western Region) (1971) which addressed the issue of military decrees and their validity, indirectly reflecting on Kelsen’s hierarchy of norms and the ultimate authority of the constitution as the Grundnorm and section 1(3) of the Nigerian Constitution (1999) which declares any law inconsistent with the Constitution to be null and void, highlighting the hierarchical nature of legal norms in Kelsen's theory. Key points of Kelsen's theory includes the following;

1. Hierarchy of norms: this is where legal norms are arranged in a hierarchical structure, with each lower norm deriving validity from a higher norm.
2. Grundnorm: this is the foundational norm from which all other norms derive their authority.
3. Separation from morality: this is where Kelsen's theory strictly separates law from morality, focusing on the systematic and structural aspects of legal systems.

However, criticisms of Kelsen's theory also includes;

1. Abstract nature: this is where Kelsen's theory is often criticized for being too abstract and detached from the practical realities of legal systems.
2. Identification of grundnorm: this is where the identification of the basic norm can be problematic and somewhat arbitrary.
3. Dynamic nature of law: this is where the theory does not easily account for the dynamic and evolving nature of law.

CONCLUSION

Legal positivism, through the contributions of John Austin and Hans Kelsen, provides a framework for understanding law as a system of human-made rules. Austin's command theory focuses on the role of the sovereign and the obedience of the people, while Kelsen’s Pure Theory emphasizes the hierarchical structure of legal norms. Both theories have influenced legal thought and practice, including in Nigeria, where legal positivism underpins the interpretation and application of the law in various cases and constitutional provisions.