Course:Law3020/2014WT1/Group L/Positivism

Positive law is a breakaway from the approach of natural law. For a positive law theorist, laws are created without a view toward the moral implications that the laws produce. According to John Austin, a leading positivist thinker, “lawmakers may strive for congruence with morality, but – “law itself is the standard of justice.””(slides) Additionally, positivists believe that there is no conceptual requirement that law must meet some kind of moral end, although they do acknowledge there is the possibility that some laws may be unjust or immoral. However, if those laws are implemented in the correct fashion they are still a valid law. This is known as the separation thesis, which has three main features:

First, it allows us to make sense of the common observation that we are in fact familiar with immoral and unjust laws. Second, by separating law and morality it allows us to use morality as an independent standard against which we can assess the law…Morality and justice then provide an independent ideal against which we can just the law itself. Finally, the positivist position provides what seems to be a better description of the position of the average citizen facing an unjust or immoral legal requirement.

John Austin’s theory is known as “law as command”, a theory that is primarily concerned with relationships of power that are found in the world. In general, Austin believes that laws are defined in terms of commands issued by superiors to subordinates, which are backed by the threat of sanction should the subordinates fail to follow the laws, “A law… may be said to be a rule laid down for the guidance of an intelligent being by an intelligent being having power over him.” In order to delineate which rules need to be followed as law, Austin set out three directives that govern human behaviour:

1. God’s Law: purview of religion (some revealed, some not) for those that are not humans use the index of utility to determine as best they can what God’s commands are. God wants us to be happy (utilitarianism) in general, just pick what you think would make society the happiest.
2. Positive Morality: includes rules of clubs/voluntary associations, etiquette, common opinion on matters of right and wrong, international law and constitutional law. These are human made rules governing human conduct that lack one or more of the essential conditions of law
3. Positive Law: laws set by humans to other humans. Set by the boss of an independent political community to civilians in the community. Commands backed by threat of sanctions. Impose a duty of compliance on the civilians