What is theory?

Theory is a set of ideas intended to explain or elaborate on something

Meaning of Positive Law.

A set of ideas that explains something. The meaning of positive law is manmade law. There are different terms used for positive law, legal positivism, Austin’s theory of law, imperative theory of law, and command theory.

This theory explains what law is. john Austin and Bentham are the founders of this law or theory. John Salmond and Kelson are the followers of this theory.

What is positive of law?

It is divided into four ingredients/elements/essentials of positive theory.

“Law is the command of the sovereign backed by the sanction.”

• Command
• Sovereign
• Duty
• Sanction/Punishment.
• Positive law focuses on what law is. Not what law should be.
• Legal positivism separates things, what law is, and what it should be.
• Legal positivism said that the law has given to you that it is fixed; we cannot change it according to ourselves. We should follow as it is.
• Imperative theory is the subject of legal positivism. Imperative theory is just a subject, while legal positivism tells us about the conventional nature of law.
• Positive law based on the analytical school of thought. Mean analysis of law, what is law, what are the kinds of law, what is ownership and possession, what are rights and duties.

Criticism:

• Sovereign is not only the source of law.

According to Austin Sovereign is the only source of law, but according to other jurists sovereign is not the only source of law; besides the sovereign, customs, usages, and religions are also important sources of law.

• The judge-made law was ignored.

Austin did not include judge-made law in his definition of law; he ignored judge-made law, according to him, because that is not law.

• Convention ignored:

International conventions are ignored in the definition of Austin’s definition of law.

• International law ignored:

In Positive law theory, international law is also ignored.

• Overemphasis on physical Force: