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Positivists: The Validity Of Law

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The interpretation of what is law is looked into by legal positivists like Kelsen and Hart. Kelsen says that law is an “instrument of social control”1. They are thought of as rules which are formed in order to compel performance of individuals. The effect of law is such that it can also prohibit an individual from performing a certain action. Kelson also says that “law is a social phenomenon, it is a social institution, and therefore, what the law is, is basically a matter of social facts”.2 Those theorists who are for this theory or in support of this theory are concerned with whether or not the law exists, whether or not the relevant authorities recognise the law rather than whether it is good or bad.Then comes HLA Hart who makes a distinction …show more content…

We can say that these legal positivists are concerned with the fact of whether or not it derives its validity from or is created by the sovereign.To them, morality does not play a central role , in fact it is irrelevant . A law is valid if the sovereign says so.
The roots or historical aspect of the law matters,that is , proper procedures must be followed by the sovereign in order to make law.How can the validity of the law be detected or judged ? Positivists answer this in the form of two parts or questions; the first part being if the law was established by the right authority and the second part being if true or correct procedures were followed by the authority.If these two questions are answered with a 'yes ' then only can one say that the law is valid.
Then came the command theories according to which, law exists only if the commands came from the sovereign.If there is failure to act in accordance with a command then this must be supported or backed up by punishing those who don 't comply with the commands .By punishing, we mean that a threat of sanction must …show more content…

Kelsen says that Grundnorm can only be changed by a political revolution .5We can say that ,There was a revolution which resulted s change in the sovereign head from UP constitution to Ananlasian constitution making Ananlasia the Grundnorm. We can also say that article 20 gives validity to the Ananlasia Constitution

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Kelsen defines law as a type of norm. Therefore, it is subject to a normative order, which makes the “the specific meaning of an act of will directed at a definite human behavior”. Afterwards, Kelsen prescribes two conditions, which if fulfilled by any legal norm, it “is” a proper positive norm. The first condition is that: this norm should be “posited” to be created by an act of a human being, subsequently, any norm created by a god, by nature or by a superhuman being is not “positive” law. The second condition is: the legal norm must be effective which means that people should obey the legal norm and if not obeyed at least applied to them.

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