We start our exploration of positivism with a description of utilitarianism.

Utilitarianism

This philosophy proposes that the function of morality and justice is to promote happiness. Utilitarianism is a consequentialist philosophy. Consequentialism holds that the rightness or wrongness of an action may be judged by its consequences. So when Robin Hood stole from the rich to give to the poor, consequentialists might have held this to be a good thing since the outcome increased the happiness in society (the rich are a little unhappy but the poor are very very happy). The opposite of consequentialism is deontology.  In this philosophy, an action is judged by itself without regard for consequences. So Robin Hood's theft would have been judged wrong because stealing is inherently bad. The motto of deontology has be said to be "Let justice be done though the heavens fall."

Two great utilitarians were John Stuart Mills and Jeremy Bentham. Bentham developed a felicific calculator to try to determine the amount of pleasure an action might cause.

A major criticism of utilitarianism is that it does not take into consideration the distribution of happiness. So if one person has 100 units of happiness, and the other nine people have zero (total=100), this is considered better in utilitarianism than if all 10 persons had 8 units of happiness (total=80).

Utilitarianism has seen a decline in recent years. It has given way to the similar philosophy of economic analysis of law. Instead of maximising happiness (which cannot be measured), this philosophy maximises wealth (which can be measured).

Bentham

Bentham was a great reformer whose work revolutionised the common law system. However, his body of works was lost for two hundred years, and it was his student Austin who gained more prominence.

Bentham campaigned for codification of law. He saw the common law of his time (late 1700s) as a great consipiracy of judges, lawyers and conveyancers to mystify the public and solidify their own power base. They kept laws out of the reach of the populace, and used unwritten laws such as "equity", "natural law" and "custom" to justify decisions which were really based on their own private opinions. Bentham believed that all law should be written. This did not come to pass, but because of his and Austin's work, various procedural reforms occured and lawyers came to a different understanding of their function in the common law.

Bentham defines law as the will of the sovereign. He sees laws as having two parts: penal and civil. Some laws do not have a penal part, e.g., the rules laying down the formation of contracts. He argues that unjust laws lost their power to bind, but felt that law and morality should be studied separately.

Austin
Austin defines law as the command of a sovereign backed by a sanction. He defines sovereign as one who the society habitually obeys but who is not in the habit of obeying anyone. His model is not very satisfactory because there are many laws which are not commands and which do not have sanctions, for example, the laws relating to the formation of marriages, wills and contracts. Austin tries to get around this by saying that there are tacit sanctions, i.e., if the contract is improperly formed, then it is not valid, and this is akin to a sanction. We will look more at the criticisms when we study Hart.

HLA Hart
Do you stand: When a woman stands at your table? When a teacher enters a classroom? When a judge enters a Courtroom? when the national anthem plays? What about the national anthem of another country? Would you expect other people to stand in those situations? Would you teach this to your children?

Do you always sit in a specific chair in the classroom? Do you always sit in a specific place in an exam room? Do you always drive on the same side of the street? Would you expect other people to do the same? Would you teach this to your children?

Do you always make your bed the same way? Put on your clothes in the same order (eg, socks first? underwear first?) Would you expect other people to do the same? Would you teach this to your children?

Hart says that there is a difference between a rule and a habit. A habit is behavior you adopt for yourself. A rule is behaviour you expect from other people. You criticize them if they do not follow it, and they accept your criticism. There is pressure for conformity.

A person might not accept a rule, but may still be able to evaluate and obey it. For example, you might go to a foreign country and stand when their national anthem is being played, even if you do not feel a sense of patriotism.

Hart argues that it is rules and not commands which explain the concept of law. He takes Austin's work as his starting point, criticizes it, and tries to improve on it.

Recall that Austin defines law as the command of a sovereign backed by a sanction. A sovereign is someone whom people are in the habit of obeying, but who is not in the habit of obeying anyone.

Hart points out that if this were the case, the sovereign would simply be a gunman saying "hand over the money, or I'll shoot" when this is clearly not how society operates.

In the first place, law is a general command -- it is not addressed to a specific person. Will the sovereign really punish every one who disobeys?

Indeed, there are many laws which are not actually addressed to the population. Instead, they are addressed to officials. For example, there is no law saying "Do not kill". Instead there is a law saying that a person who kills shall be arrested by the police, prosecuted, and tried and sentenced by a judge and jury. It is for the population to decide that they would be better off not killing.

Also note that law is a standing order, not a one-time order. Why are we still obeying laws which were laid down fifty, a hundred or even a thousand years ago? In R v Duncan [1944] 1 KB 213, a woman was convicted under the Witchcraft Act of 1735 http://en.wikipedia.org/wiki/Helen_Duncan).

Furthermore, there cannot be a mere habit of obedience to a sovereign. As soon as a new sovereign comes into power (change of government, death of monarch, etc), they can start making laws and people obey. There is not enough time to get into the habit of obeying.

There are many laws which do not have sanctions. There are formalities for contracts, marriages, wills, etc. There are laws which enable public powers, eg, which enable the sanitation service to collect the garbage, which enable judges to adjudicate or parliament to legislate. Are these orders backed by threats?

Hart answers all of these criticisms with his theory of rules.

For example, there is a rule of obedience. Individuals feel that they should obey the sovereign and that others should as well. Furthermore there is a rule explaining why a new sovereign should be obeyed, (eg he is to be elected, he is to be oldest living descendent in direct line of Rex I.)

In Hart's theories, there are primary rules: eg, do not kill, do not steal. If there was nothing more, then these would be like our rules of etiquette. They would be static (no way to deliberately introduce or eliminate rules), inefficient (each person would have to enforce breach), and uncertain (no procedure for settling doubts). Thus, Hart posits, there are also secondary rules. The CAR: rules of change, rules of adjudication and rules of recognition.

The rules of change are perhaps the most confusing. Hart uses this to refer to the rules which empower introduction and change of other rules (so they are not static). But he also uses this concept to refer to rules which empower individuals to change their legal position, eg by making wills, contracts, etc. [Many commentators are also confused by this, so don't worry if you don't understand it -- more power to you if you do. :)]

The rules of adjudication empower individuals to determine whether a primary rule has been broken. These rules define concepts such as judges and courts. This helps the primary rules not to be inefficient.

Finally the rules of recognition enable individuals and officials to recognize which primary rules they are bound by (so they are not uncertain). In our society rules of recognition include: The constitution, any law passed by Parliament since Independence, any law passed before Independence which has been saved by the Constitution, any judgment made by a judge which has not been overturned on appeal, etc, etc.

Hart describes rules as having an internal and external aspect. Internal refers to how rules are interpreted by people who believe in them, or consider themselves bound by them, e.g, the patriots of a country or followers of a religion. External refers to how they are viewed by people who do not believe in them. For example, a visitor to a country who still obeys the law to avoid sanctions, or an outsider to the religion who does not wish to offend. (Remember the example of standing for another country's national anthem?)

Finally, Hart also talks about the two minimum conditions for a legal system: there must be valid rules of behavior which are generally obeyed by both private citizens and officials, and there must be secondary rules which officials accept as public standards. Those who reject the primary rules must be in a minority or loosely organized. Change in a legal system may occur through revolution, enemy occupation, government in exile or independence. 

Hart has been criticized by Dworkin, and on some exam questions who you will asked to compare their theories.

Positive Law in the Caribbean
Does any of these models give an accurate description of how law functions in the Caribbean? Do we have a sovereign in the sense defined by Austin? Our sovereign is elected by the people -- does this mean that the electorate is really sovereign? The concept of separation of powers means that the judiciary can strike down the legislature or executive. Does this mean that the judiciary is sovereign? Perhaps it is our Constitution that is sovereign (Hinds). Any changes made to it must be in accordance with its own rules. But can a paper be a sovereign?