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:
- 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.
- 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
- 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.
According to Austin, the only two directives that meet the requirements for an actual law are those made by God and the positive laws. God as a sovereign is essentially a given in Austin’s theory, however to determine whether a human is a sovereign, thus capable of issuing commands to subordinates, he must be recognized. The sovereign (either individual or aggregate body) must be a determinate and common superior who the bulk of society are in the habit of obedience or submission. Austin summarizes his thoughts on superiority in the following, “whoever can oblige another to comply with his wishes, is the superior of that other, so far as the ability reaches: The party who is obnoxious to the impending evil, being to that same extent, the inferior.”
Positive morality rules are not laws because there are no punishments if one doesn’t choose to follow the rules. A command is distinguished from a rule in that one is liable to endure an evil if they do not comply with a command, therefore the subordinate is duty bound to obey it. Any time there is a reward offered for some service there is no law, as Austin declares that one is not obliged to follow said rule, they are simply induced into competing the action. There is no threat of an evil coming your way should one fail to complete the task.
Laws must also be permanent and specific in order to be valid. Should there be a non-specific regulation or sanction, Austin would find that to be a rule as opposed to a law. The lawgiver must determine a class or description of acts that are prohibited generally and indefinitely, should they be broken there must be general and specific punishment.
According to positivists, when a judge attempts to make a law they are simply applying the limited power that was delegated to them by their superiors. They are acting as “ministers” of the superiors by issuing specific commands as opposed to generalized rules which apply to an entire class. The superiors are able to reverse the rules made by judges. When a judge applies a customary law, they are issuing a tacit command (signified by conduct as opposed to express commands which are spoken or written). These customary rules which are turned into legal rules by judges become tacit commands that are permitted by the sovereign legislature, “the state which is able to abolish, permits its ministers (judges) to enforce them: and it, therefore, signifies its pleasure, by that its voluntary acquiescence, “that they shall serve as a law to the governed.”
- Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law. Toronto: Pearson Education Canada, 2002 at 35.
- Ibid at 37.
- Ibid at 44.
- Ibid at 48.
- Ibid at 48.