Author
Asst Prof Bhanu Pratap
Organisation/Institution
University of Lucknow
Country
INDIA
Panel
Miscellaneous
Title
Asian Legal Positivism: A Comparative Study of the Analytical Method
Abstract
The paper explores an ignored area of comparative legal philosophy. Legal Positivism is interpreted as the contribution of the European School of thought. Its conceptual roots have been traced to the philosophy of nominalism, but whether the anti-metaphysical school was present in Asia has not been explored. The recently published ‘ Cambridge Companion to Legal Positivism is silent on the Asian contribution. ( The Cambridge Companion to Legal Positivism, (eds) Torben Spaak, Patricia Mindus, Cambridge University Press,2021) The paper aims to explore the presence of legal positivism in India and Japan. An analysis of Carvaka’s ideas will dispel the myth that anti-metaphysics narration was the hegemony of Europe. The presence of the Positivist society in Bengal will be discussed to show that India was highly receptive to the positivist philosophy. In the same stride, it will be shown how the early legal education introduced by the British taught the method of Legal positivism to young legal professionals, especially with the publication of William Markby’s ‘Elements of Law’. (Willaim Markby, Elements of Law Considered Concerning Principles of Jurisprudence, Kessinger Publishing,1999) It will be shown that in post-independent India, the method of positivism was kept alive by jurists and the Supreme Court. A special mention will be made of the work of H.M. Seervai, who wrote in a positivist fashion. ( H.M. Seervai, Constitutional Law of India,2015) The paper will show that Japanese society was the most fertile ground for the growth of legal positivism. To support this argument, the paper will explore the philosophy of ‘soju’ and the modernisation of the Japanese legal system in the Meiji era. The last part of the paper will discuss the contribution of Kyoto School and Mitsukuri Rinsho to the cause of Legal positivism in Japan.
Biography
I am an Assistant Professor of Law at the University of Lucknow, India. My areas of interest are international law, legal philosophy, and comparative constitutional law. I have authored books on International Law and the International Court of Justice and published 27 articles in national and international journals. I am also a guest faculty member (online) at Harris Stowe University, Illinois, USA.
