POSITIVE LAW

Imagine a powerful sovereign who issues commands to his or her subjects. They are under a duty to comply with his wishes. The notion of law as a command lies at the heart of classical legal positivism as espoused by its two great protagonists, Jeremy Bentham and John Austin.

Modern legal positivists adopt a considerably more sophisticated approach to the concept of law, but, like their distinguished predecessors, they deny the relationship proposed by natural law, between law and morals. The claim of natural lawyers that law consists of a series of propositions derived from nature through a process of reasoning is strongly contested by legal positivists.

The Age of Reason – an intellectual movement in the 17th-century Europe that emphasized the logical analysis of philosophical problems. Philosophers began to analyze human nature and society without relying on religion. Many new philosophers began to challenge Natural law.

POSITIVE LAW Developed in England during the 16th and 17th century following a period of widespread religious, political, and social upheaval. This period of violence, fear, and confusion affected the way thinkers of the time viewed the origin and purpose of law. Civil War & Charles the 1 st is beheaded

Positive law: The theory that law is a body of rules formulated by the state, and that citizens are obliged to obey the law for the good of the state as a whole. It had no moral purpose other than to ensure the survival of the state, and obedience to it was no longer a matter of conscience.

Law is simply what the political authority or law maker commands. Justice means conformity to the law.

THOMAS HOBBES ( ) Leviathan Fled to Paris in 1648 after witnessing the violence of the civil war. Leviathan- Book which put forth a new purpose of law. He believed that law was necessary to curb the greed, fear, and violence that were part of human nature.

All people must obey the law at all times. To not follow the law would only lead the world into chaos. The weakness of natural law is that it allows people to find their own meaning of the law. This makes law ineffectual and legitimizes tyrants.

The state of nature is a state of perpetual war where the strong prey on the weak. In the state of nature life is “solitary, poor, nasty, brutish and short.” In order to survive, people must give up their rights to the state. The sole purposes of law is to maintain order and strengthen government.

John Locke ( ) Locke’s synthesis of natural and positive law theory would influence political and legal philosophers for hundreds of years

Jeremy Bentham ( ) His analysis of human nature led him to believe that people tried to achieve the maximum amount of pleasure and happiness in their lives. He proposed a new way to judge whether a law was good or bad: the law should be evaluated by its utility to society as a whole. A truly just law provides “the greatest happiness for the greatest number” of people- this became known as utilitarianism

John Austin ( ) While he agreed with Bentham, he separated law completely from morality. He believed that natural law and individual morality are too subjective to secure the happiness of the majority.

To judge laws using a moral or religious code would mean that each person in society had his or her own interpretation of the law and therefore could obey those laws they judged to be good and disobey those they thought were bad and no society can function like this. Positive law, on the other hand, provided an objective measure of judgment- every law set had to be obeyed and there was a concrete consequence based in tradition (Precedent).

H.L.A. Hart ( ) The father of modern legal positivism Hart argues that law is a system of rules and that all societies have social rules. These rules are divided into Primary Rules and Secondary Rules

Primary Rules – What an individual can and cannot do Secondary Rules – Rules addressed to officials to administer primary rules (enforce them) – Secondary rules are divided into: 1.Rules of adjudication -to resolve legal disputes 2.Rules of change -allowing laws to be varied 3.Rule of recognition -allowing laws to be identified as valid His goal was to take morality out of law