A law, which actually exists, is a law, though we happen to dislike it, or though it vary from the text, by which we regulate our approbation and disapprobation.
A law, which actually exists, is a law, though we happen to dislike it, or though it vary from the text, by which we regulate our approbation and disapprobation.Austin defined law by saying that it is the “command of the sovereign”.Holmes made a description of what positive law is in the realm of the courts.
Prior to the American Revolution, English political thinkers John Austin and Thomas Hobbes articulated the command theory of law, which stood for the proposition that the only legal authorities that courts should recognize are the commands of the sovereign, because only the sovereign is entrusted with the power to enforce its commands with military and police force.
Thomas Hobbes argued that “it is improbable for any statute to be unjust”.
There are many versions or interpretations of legal positivism.
But perhaps, the most popular version or interpretation would be that of the Separation Thesis.
According to him, “before the names of just and unjust can take place, there must be some coercive power to compel men equally to the performance of their covenants …
and such power there is none before the creation of the commonwealth”.The fact that a policy is just, wise, efficient, or prudent is never a sufficient reason for thinking that it is actually the law; and the fact that it is unjust, unwise, inefficient or imprudent is never a sufficient reason for doubting it.According to positivism, law is a matter of what has been posited.Positive law consists of those commands laid down by a sovereign (or its agents), to be contrasted to other law-givers, like God’s general commands, and the general commands of an employer to an employee.The “sovereign” is defined as a person (or determinate body of persons) who receives habitual obedience from the bulk of the population, but who does not habitually obey any other (earthly) person or institution.Austin thought that all independent political societies, by their nature, have a sovereign.Positive law should also be contrasted with “laws by a close analogy” (which includes positive morality, laws of honor, international law, customary law, and constitutional law) and “laws by remote analogy” (e.g., the laws of physics).However, the merits of law do not determine whether a law or a legal system indeed exists.The existence of a legal system in a society can be inferred from the different structures of governance present, and not on the extent to which it satisfies ideals of justice, democracy, or rule of law.Another famous advocate of legal positivism in America’s history is probably Justice Oliver Wendell Holmes, Jr.He wrote that the “prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law”.