Legal Positivism

Legal Positivism

Law = social fact, separate from morality. Austin’s Command Theory

Austin’s Command Theory (norm to be considered a Law)

1. Must be a COMMAND

2. Must be backed by a SANCTION

3. Must be issued by a POLITICAL SUPERIOR/SOVEREIGN (determinate person/body that is habitually obeyed but does not itself habitually obey anyone else)

4. Must be GENERAL in form (classes of people and situations, not individuals)

Moral Justification of Legal Positivism

NONE

African Counterpoint to Legal Positivism: Mbitit’s Kinship Society

• African Societies traditionally kinship-based

• Social Organisation = relational, not political

• built extensively on blood and betrothal

African Kinship Systems

1. NORMATIVE (governed by customs)

2. Rationale-Based (validity of custom depends on whether it reinforces and nurtures overall Kinship system and relationships- DISTINCT from Austin’s source-based validity)

3. Communal & Inter-dependent (Ubuntu) (Austin’s sovereign absent- authority is diffuse and based on seniority and social role, but rules apply to all for the better of all)