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