Positivist Theory

Question 1

What is the principle of utility according to Bentham?

Answer 1

Law should aim to diminish pain and maximize pleasure for the governed.

This principle evaluates laws based on their impact on public utility.

Question 2

How should every law be measured according to Bentham?

Answer 2

By the yardstick of public utility, assessing the pain it causes and the pleasure it provides.

This reflects Bentham’s utilitarian approach to law.

Question 3

What case illustrates the application of legal positivism?

Answer 3

KAOMA v PARMAR (1975) Z.R. 9 (H.C.)

This case involved the liability of a dog owner for injuries caused by their dog.

Question 4

What legal principle was established in KAOMA v PARMAR?

Answer 4

Scienter is proved by showing the dog has a mischievous propensity to bite mankind.

One known bite is sufficient to establish this knowledge.

Question 5

What does legal positivism claim about the validity of law?

Answer 5

It can be traced to an objectively verifiable source.

This contrasts with natural law theories that see law as independent of human enactment.

Question 6

Who is credited with modern legal positivism?

Answer 6

H. L. A. Hart.

Hart applied analytical philosophy to the study of law, emphasizing the meaning of legal concepts.

Question 7

What are the three key constituents of Austin’s concept of law?

Answer 7

• Political sovereign
• Command
• Sanction

These elements define law as commands issued by a sovereign with consequences for disobedience.

Question 8

What is the ‘felicific calculus’?

Answer 8

A quantitative comparison of pleasure and pain to determine what promotes individual interest.

This concept is central to Bentham’s utilitarian philosophy.

Question 9

What does Austin mean by ‘law properly so called’?

Answer 9

It includes human laws laid down by men for men.

This distinguishes between laws made by sovereign authority and other forms of rules.

Question 10

What is the distinction between ‘ought’ and ‘is’ in legal positivism?

Answer 10

‘Ought’ refers to what is morally desirable, while ‘is’ refers to what actually exists as law.

This separation is crucial for the study of law without moral bias.

Question 11

True or False: According to legal positivists, unjust laws must be obeyed.

Answer 11

False.

Legal positivists acknowledge that disobedience to unjust laws can be legitimate.

Question 12

What does Hart’s concept of law emphasize?

Answer 12

The separation of law and morals.

Hart argues that legal validity does not depend on moral considerations.

Question 13

What is the significance of codification in law according to Bentham?

Answer 13

It aims to reduce the indeterminacy of common law and provide clear, accessible legal standards.

Bentham believed codified laws would simplify legal processes and reduce the power of judges.

Question 14

Fill in the blank: Austin argued that anything that is not a command is _______.

Answer 14

not law.

This highlights his strict definition of law as commands issued by a sovereign.

Question 15

List two categories of laws according to Austin.

Answer 15

• Laws of God
• Human laws

Human laws are further divided into ‘strictly so called’ and ‘improperly so called’ laws.

Question 16

What is Bentham’s critique of the common law?

Answer 16

It is vague and uncertain, requiring systematic codification.

Bentham believed common law could not reliably guide behavior without formal codification.

Question 17

What does legal positivism reject in terms of law?

Answer 17

The idea that law exists independently from human enactment.

This is a key tenet that distinguishes positivism from natural law theories.

Question 18

What does the term ‘positivism’ derive from?

Answer 18

The Latin term ‘positum’, meaning law as it is laid down or posited.

This reflects the focus of legal positivism on established laws.