THE LINKAGE BETWEEN POSITIVISM AND DOCTRINE OF CONSTITUTIONAL SOVEREIGNTY IN INDIA; A JURISPRUDENTIAL APPROACH
AUTHOR- KASHISH KHANNA, IILM UNIVERSITY, GURUGRAM.
BEST CITATION – KASHISH KHANNA, THE LINKAGE BETWEEN POSITIVISM AND DOCTRINE OF CONSTITUTIONAL SOVEREIGNTY IN INDIA; A JURISPRUDENTIAL APPROACH, INDIAN JOURNAL OF LEGAL REVIEW (IJLR), 4 (4) OF 2024, PG. 616-622, APIS – 3920 – 0001 & ISSN – 2583-2344.
Abstract
Analytical Positivism in jurisprudence centers on understanding the core concepts of law independent of their moral, historical, or societal contexts. Rooted in a systematic and scientific approach, this school focuses on “law as it is,” rather than “law as it ought to be,” analyzing fundamental concepts like sovereignty, justice, and legislative theory. Prominent figures, including John Austin and H.L.A. Hart, argue that law, crafted by political authorities, should be viewed as a factual system rather than a moral construct. Various Indian judicial decisions, such as those based on legal positivism, illustrate this approach, with cases highlighting the distinction between legal rules and justice. Hart’s theory, with its focus on primary and secondary rules, aligns with India’s legal framework, where the Constitution serves as the ultimate standard of recognition. Jeremy Bentham’s utilitarian influence and Hans Kelsen’s “Grund Norm” concept further underscore the importance of the Constitution as a foundational norm in Indian law. In India, the Constitution’s sovereignty echoes the various ideas of Analytical school’s emphasis on legal authority, establishing the Constitution as the supreme legal standard. While some aspects of Analytical Positivism do not fully apply to India’s diverse legal system, key principles continue to shape interpretations and applications of the Constitution. The enduring legacy of the Analytical School of Jurisprudence lies in its clear articulation of law’s role and authority within an organized legal system, contributing significantly to the foundations of Indian constitutionalism.[1] Thus, it becomes essential to answer some questions. What is the linkage between the theories of various scholars and the Indian constitution? Is it entirely a positivist idea? Does the Indian constitution act like a sovereign in India?
Keywords: Positivism, Grund norm, authority, Indian constitution, linkage, sovereign etc.
[1] Dr. Jai Mala, Seema Rani, Role of Legal Positivism in Democratic Governance in India, https://www.internationaljournalssrg.org/IJHSS/2017/Volume4-Issue6/IJHSS-V4I6P104.pdf, Last Accessed on 20th October 2024.