Legal Positivism
Legal positivism is the thesis that the existence and content of law depends on social facts and not on its merits. The English jurist John Austin (1790-1859) formulated it thus:
"The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry." (1832, p. 157)
The positivist thesis does not say that law's merits are unintelligible, unimportant, or peripheral to the philosophy of law. It says that they do not determine whether laws or legal systems exist. Whether a society has a legal system depends on the presence of certain structures of governance, not on the extent to which it satisfies ideals of justice, democracy, or the rule of law.
What laws are in force in that system depends on what social standards officials recognize as authoritative; for example, legislative enactments, judicial decisions, or social customs.
The fact that a policy would be just, wise, efficient, or prudent is never sufficient reason for thinking that it is actually the law, and the fact that it is unjust, unwise, inefficient or imprudent is never sufficient reason for doubting it.
According to positivism, law is a matter of what has been posited (ordered, decided, practiced, tolerated, etc.); as we might say in a more modern idiom, positivism is the view that law is a social construction. Austin thought the thesis "simple and glaring." While it is probably the dominant view among analytically inclined philosophers of law, it is also the subject of competing interpretations together with persistent criticisms and misunderstandings.
Many thinkers, most notably Hans Kelsen, have argued that law and justice are two different things, each unrelated to the other. Since Kelsen wanted to achieve a "pure science of law," in which law was ascertainable and predictable, that goal seemed to him to preclude infesting law with anything as indeterminate as justice. Justice is indeterminate, according to Kelsen, because the statement: something is just or unjust, is a judgment of value referring to an ultimate and, and these value judgments are by their very nature subjective in character, because based on emotional elements of our mind, on our feelings and wishes.
This is the reason why in spite of the attempts made by the most illustrious thinkers of mankind to solve the problem of justice, there is not only no agreement but the most passionate antagonism in answering the question of what is just.
Kelsen calls for a "clear separation" of law from justice. To be sure, Kelsen acknowledges that some laws can be called just or unjust, but he relegates the "problematic task" of "justifying" laws to "religion or social metaphysics. "Never-theless, Kelsen acknowledges a role for justice under the law, "Justice under the law,"Kelsen savs, "means legality, it is 'just' for a general rule to be actually applied in all cases where, according to its content, the rule should be applied. It is 'unjust for it to be applied in one case and not in another similar case.
"Kelsen thus has made three points in furtherance of his claim that justice should be separated from law:
(a) Law is determinate but justice is indeterminate;
(b) Whether or not a law is "just" is a consideration that is external to the legal system; and
(c) Justice under law simply means that a rule of law must be applied to all cases that come within the rule,
Although for the realization justice, it is dependent upon law, but then justice is not the same as law. They are interrelated concepts but have their own distinct spheres and are not dependent. Statutes are made in order to provide the requisite justice i.e. law serves the purpose of justice. In simpler words, it may be said that justice gets help from the law but justice is not fully dependent on the law but other things and elements also. Justice is an ideal, founded on the mortal nature of man.
Law is mere an instrument to serve the purpose of justice. Justice is provided by the judges according to the laws made on certain issues. But, then judges can use their discretion and as necessary can do justice without these fixed laws. It is a simple system leaving the final authority to decide the matter to the discretion of the particular judge to lead the simplicity and to avoid undue complexity and delay which are the dangerous evils of the present system of administration of justice according to fixed rule of law. This is the simple and convenient way of justice. For judges justice is superior and not the principles of law. Law is only a support system to be used to reach justice. Therefore, justice can be said to be dependent on law but is not the same as law. Justice is done by judges by the use of their discretionary powers to avoid undue delay and complexity in providing justice.
The theory of dependency on law is to establish the fact that justice only promotes stability by the instrument of law and that law does not govern justice. It is all together upto the Judge to provide justice by the use of his discretionary powers.
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