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.
- Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law. Toronto: Pearson Education Canada, 2002 at 35.