Law

The theory of legal positivism states or maintains that there is no necessary condition between the conditions of laws and ethics or morals. It expounds that laws are made, implemented and followed necessarily by humans, deliberately or unintentionally. In jurist John Austins words, The existence of law is one thing its merit and demerit another. Whether it be or be not is one enquiry whether it be or be not conformable to an assumed standard, is a different enquiry.

Harts definition of law is simple. He says that law comprises of rules which are divided into primary and secondary rules. The primary rules are ones which are basically prohibitions on human nature. This paves the path for secondary rules. These are the ones which are on the primary rules. These again are divided into three  1) Rules of recognition  recognizing the rules which are necessary 2) Rules of change  identifying the primary rules which need to be changed and changing them if needed. 3) Rules of adjunction  settling the disagreements regarding any rule.

To quote from Harts work,
Nothing in my book or in anything else I have written supports a semantic account of my theory. Thus, my doctrine that developed municipal legal systems contain a rule of recognition specifying the criteria for the identification of the laws which courts have to apply may be mistaken, but I nowhere base this doctrine on the mistaken idea that it is part of the meaning of the word law that there should be such a rule of recognition in all legal systems, or on the even more mistaken idea that if the criteria for the identification of the grounds of law were not uncontroversially fixed, law would mean different things to different people .

Hart gives out three propositions in favor of judicial discretion which is in tandem with legal positivism. Firstly, he says that language is indeterminate. There are sometimes when words do not convey quite what they intend to. Thus, the discretion left by words for the judiciary is very vast.

Secondly, very general standards are used in the rules. Very often, we find words like fairness, reasonableness or justice in the rules which impose very general standards to all different kinds of situations. . It is quite natural that there would be uncertainity and lack of clarity because of lack of preciseness in the standards. Thirdly, there is no set rule of selection of these governing bodies.
Finally, its onto the judges to narrow or widen down any set of rules.

 Harts propositions give assumingly large powers to the judges. This is not always a wise decision. It can be considered as a valid theory in some cases only. It might not hold good for some very integral cases. It makes the judges the sole proprietor of law and legal system which is not always agreeable to.