Positive Law

“Positive Law” Laws that are simply what the government decides There are no standards that they must conform to in order to be valid Positive-Law Theory was developed in a period of violence, fear and confusion (civil war, behead a monarch, etc.); this affected the way thinkers of the time viewed the origin and purpose of law These theorists chose to instead believe that law was established by the head of the state and for the good of the state as a whole

Thomas Hobbes (1588-1679) The state of nature was nothing more than a state of perpetual war as the strong and intelligent plundered the weak The slow and weak would then band together to attack those they feared Because of this position, “men live without a common power to keep them all in awe” In the interest of self-preservation, people agreed to surrender to a sovereign/king/power Refusal to obey the law was absurd; it would only return society to its original state of perpetual war People formed governments to have a strong leader who would rule over them and maintain order

John Locke (1632-1704) Tried to incorporate more positivist thinking (in comparison to Hobbes) and natural law theory If the king violated the natural rights of the people, then the people were justified in rebelling and in replacing the unjust government with one that would respect their rights The Rights: life, liberty, property To people’s advantage to form a civil society in which the majority handed over to the state the authority to preserve their fundamental rights

Locke Echoed in the United States’ Declaration of Independence from its chief author, Thomas Jefferson: “That all men are created equal; that they are endowed by their Creator with certain unalienable [inviolable] rights; that among these are life, liberty, and the pursuit of happiness; that, to secure these rights, governments are instituted among men … that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it and to institute a new government”

Jeremy Bentham (1748-1832) Formulated the basic principles of positive law Law is simply that which the government pronounces and requires obedience Again, this is because of his worldview and context The only criteria for morality to judge the law was whether they provided “the greatest happiness of the greatest number of people” Otherwise known as utilitarianism

John Austin (1790-1859) Purpose of law is the “greatest possible advancement of human happiness” Separated law from morality: useless to judge law by a moral or religious code because these were subjective measures Means that each person has his/her interpretation of the law Positive law provides an objective measure of judgment Individuals had to bend their will to that of the governing body since the purpose of the law was to ensure the happiness of the majority

Austin The only way to judge a law is whether it maintains order and promotes social good Who/What/How is this determined? We cannot have standards outside of the law because then people might start questioning the law The law must be obeyed

Homework P. 77, Q. 1, 2, and 3 In your own words, differentiate between natural and positive law. According to the philosophers we’ve listed/reviewed, do people have the right to oppose what they see as unjust laws? Discuss. Identify one way in which Aristotle’s theory of natural law differed from Plato’s.