Discuss the following statement with reference to the jurisprudential theories of legal positivism, Dworkin(TM)s anti-positivism and legal realism.

Authors Avatar

Law 3120.

Discuss the following statement with reference to the jurisprudential theories of legal positivism, Dworkin’s anti-positivism and legal realism.

“The more I think about these cases [on pure economic loss] the more difficult I find it to put each into its proper pigeon-hole. Sometimes I say: ‘There was no duty.’ In others I say: ‘The damage was too remote.’ So much so that I think the time has come to discard those tests which have proved so elusive. It seems to me better to consider the particular relationship in hand, and see whether or not, as a matter of policy, economic loss should be recoverable, or not.” per Lord Denning MR in Spartan Steel & Alloys Ltd v. Martin & Co. (Contractors) Ltd (1973).

Positivism is a theory which describes law as it is in a given time and place by reference to formal rather than moral or ethical criteria of identification.1  The leading legal positivists of the nineteenth century are Jeremy Bentham and John Austin. Contemporary legal positivists include H.L.A Hart (’soft‘ positivist), Hans Kelsen, Joseph Raz (‘hard’ positivist), etc .2 All positivists are concerned with solving problems of legal philosophy. However, it may be argued that positivism is limited in its ability to solve questions/problems within the law due to the fact that these theorists believe that;

 ‘the law as laid down should be kept separate…from the law as it ought to be morally.’ 3

Thus, discarding the tests set for cases of negligence as in the Spartans4 case, would be a more lengthy process when investigating the subject using a positivist methodology, particularly when given the legalistic nature of the concept ’parasitic damages.5 Indeed, deciding cases on their own individual merit would mean to pay less attention to the law set down in any given statute. Positivists look at what the law ‘is’ rather than what it ‘ought to be’ and therefore they are reluctant to take morality into account as this would create uncertainty in the law.6 The limited nature of the positivist approach can be demonstrated when we look at the mere five views that Professor Hart includes in his definition of positivism and what the theory encompasses. Most significantly, one of his views states that;

 ‘a legal system is a ‘closed logical system’ in which correct decisions may be deduced from predetermined legal rules…’7

The complicated nature of negligence cases is a good subject upon which to demonstrate how in certain circumstances the facts of a case may mean that it is not always morally justified to base a decision on predetermined rules. However, this concept does not phase the positivists.

Bentham’s model is designed to describe the law and hence claims to be not concerned with external factors such as moral and political issues.8 I will later compare his model to the essence of the realists’ belief that the law is actually, preoccupied with moral and political factors. Bentham is representative of classical notions of positivism and he firmly believed that to conform to the naturalists’ approach to solving moral disputes, could lead to;

‘…corruption and the manipulation by sinister interests of those who are subject to the law…’9

In this sense, Bentham believed that by looking at the moral dilemmas posed by cases on their individual merit, would mean to fail to understand and recognise the importance of the law itself, which has been introduced for a particular reason, I.e. the interests of society as a whole, rather than what is fair to the individual. So it would seem that by using Bentham’s approach, the fact that it may seem unfair to appoint liability to the defendant’s for all three amounts of damages would be irrelevant. However, if, after close scrutiny, it could be found that it is in the interests of society as a whole not to find the contractors liable to pay all three sums due to the fact they were doing their job,  perhaps even a positivist mind would come to the conclusion that what the law ‘is’ is not necessarily in the interests of society. And may find it necessary to abandon the tests.  

Join now!

Bentham also criticizes judge-made law as a part of the common law. Indeed, he believes that it is so easy to ignore precedents by applying the doctrines of natural law, equity etc, which fail to understand the law itself, and jump straight into criticizing it on the basis on individual cases.10 In an attempt to prevent judges from legislating, Bentham wanted to codify the common law to apply to all circumstances and hence reduce the power of judges.11 Indeed, he wanted to codify;

‘…what acts it is his duty to perform for the sake of himself, his neighbour or the ...

This is a preview of the whole essay