Transcript File positive law

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 1st 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 (1588-1679)
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 (1632-1704)
• Locke’s synthesis of
natural and positive law
theory would influence
political and legal
philosophers for
hundreds of years
Jeremy Bentham (1748-1832)
• 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 peoplethis became known as
utilitarianism
John Austin (1790-1859)
• 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 (1907-1992)
• 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