Positivism in the High Court of Australia

Running head: POSITIVISM IN THE HIGH COURT OF AUSTRALIA
POSITIVISM IN THE HIGH COURT OF AUSTRALIA
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Author Note

POSITIVISM IN THE HIGH COURT OF AUSTRALIA1
Introduction
Positivism is a method of thoughts, rationalism and sophistication. It is considered to be
an epistemology that pursues elucidations of events that might be helpful in discovering the
fundamental laws related to such events. The discovery of the laws are necessary in order to
envisage the future events of similar types and the future events may be measured by applying
the related laws and the favorable objectives might be achieved and the unfavorable
consequences might be eradicated1.
Positivism is a theory provided in the subject of Jurisprudence. The term ‘Jurisprudence’
may be referred to the implementation of the decision making functions, both in public and
private circumstances, in relation to the utilization and management of the structure of law of a
specific dogmatic or political civilization. Jurisprudence also means the discharge of the above-
mentioned functions based on making these decisions, the criticisms of the scholars regarding the
actions and applications, and the understanding and ability from which these actions proceed.
The above-mentioned concepts are regarded as the conventional ideas of jurisprudence.
Positivism is a term which has been used to describe the communal and scholarly crusade
that showed the eagerness to learn from the errors of the Project of Enlightenment that
transpired, first, during the Reign of Terror after the French Revolution in the year of 1789, and
second, during the irrationalism or illogical behavior of the Weimar Republic after the defeat of
Germany in World War I2.
The study of jurisprudence involves several theories. Positivism is one of those theories.
Hence, jurisprudence is the study of law and the involvement of positivism in jurisprudence
1 Bix, Brian. "On the dividing line between natural law theory and legal positivism." Law and Morality. Routledge,
2017. 49-60.
2 Morrison, Wayne. Jurisprudence: From The Greeks To Post-Modernity. Routledge-Cavendish, 2016.

POSITIVISM IN THE HIGH COURT OF AUSTRALIA2
gives rise to the concept of legal positivism. Legal positivism is the theory or the proposition that
describes that the actuality and containment of law depends on communal truths, it does not
depend on the merits. Thus, according to John Austin, an English Jurist, it might be said that the
existence of law can be described as a specific concept, however, the demerit and merit of law is
a different notion. According to the various jurists of analytical theory also called the positivists
theory, law should be considered and understood as it is, and not as it ought to be. The theory of
positivism do not undermine the merits of law as not important, or incomprehensible, or
marginal to the philosophy of law. It simply states that whether there is a presence of legal
system in a society depends on the existence of specific edifices of governance, and it does not
depend on the degree to which it gratifies the essence of justice, the rule of law or democracy.
The laws that might be enforced in a particular arrangement, depends on the social values
acknowledged as imposing and commanding by the officials of the arrangement. For instance, it
may depend on the customs of the society, or the enactments of legislations or the decisions by
the courts and judges. The matter is that the justness, wisdom, efficiency or prudency of a
particular policy can never be adequate reason for the realization of that particular policy as law.
Similarly, a given policy cannot be doubted as law, if it is unwise, hasty, unjust, incompetent and
unproductive. It might be said that in accordance to the concept of positivism, law is something
that is posited, that is, decided, ordered, practiced or abided. According to this concept, law is
considered as a construction of the social norms. Austin’s thought about the theory was “simple
and glaring”. This theory possibly holds a dominant position in the legion of analytically
motivated philosophers of the law3.
The history in relation to legal positivism is long and the influence of this theory is
enormous. Even the philosophers of the ancient world involved the concept of positivism.
3 Haac, Oscar. The Correspondence of John Stuart Mill and Auguste Comte. Routledge, 2018

POSITIVISM IN THE HIGH COURT OF AUSTRALIA3
However, the positivism theory of the modern world is the result of the modern thinkers,
primarily of the seventeenth and the eighteenth century. Its significance is based on the
philosophies of Hume and Hobbes. The first proper elaboration regarding this theory was
provided by Jeremy Bentham. The works of Bentham was adopted, modified and popularized by
John Austin. Later, for a major number of years, the merged views of both Bentham and Austin
subjugated the English philosophical image of the law. The views of these two positivists stated
that law is the command of the sovereign that is backed by or sanctioned by force4.
Each and every society consisting human beings follows a method of social command
and directive. It follows a system of marking and inspires accepted conduct and discourages
condemned conduct. The distinctness as well as the commonness of the regard.
Australian Securities and Investments Commission (ASIC) v Kobelt [2019]
HCA 18
In the aforementioned case, the Australian High Court, by a decision provided by a
majority, dismissed an appeal that was raised from the Federal Court where the decision was
provided by a Full Court5. In this particular case, Mr. Kobelt was the respondent. It was decided
in this case that the system of “book-up” credit as provisioned by Mr. Kobelt, is not
contradictory to the prohibition regarding “unconscionable conduct”, as provided in sub-section
4 Ray, Christopher. "Logical positivism." A companion to the philosophy of science (2017): 243-251.
5 Australian Securities and Investments Commission (ASIC) v Kobelt [2019] HCA 18