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Theories of Law: Natural and Positive Law

Aristotle - Athens, Greece

John Austin

Thomas Hobbes

St. Thomas Aquinas

According to Aristotle, it is our ability to reason that separates us from the natural world. Our reason is what guides us into performing good actions, but if our desires get in the way, we will follow our desires even if they are not of the good. Instead, it should be the fear of punishment that guides people into doing the good. Laws should be designed to help guide our reason, which is the spark of the divine.

Austin was a noted philosopher for removing morality from law, stating that morality was subjective and based heavily upon religious influence, something that changes with culture. He argued that the only way to guarantee the happiness of the majority was if the state designed the laws and that individuals were forced to conform accordingly. This was the only way to ensure maximum societal happiness.

Aquinas devised four separate categories of natural law:

1. Eternal law: is the law God followed in order to create the universe; impossible for humans to fully understand.

2. Natural law: is parts of eternal law that our reason allows us to understand.

3. Divine Positive Law: is parts of the eternal law given to us from the sacred texts and scriptures.

4. Human Positive Law: is the law that humans created for the proper functioning of society.

One of the first positive law theorists, he believed that human nature was evil and full of greed based on the corrupt rulers of the time. Law should not follow nature, but instead, law should be made by rational men, with the purpose of maintaining strength and order in society.

384 B.C.E.

Athens, Greece

1224 A.D. - Naples, Italy

1859 A.D. - Suffolk, England

1679 A.D. - London, England

470 B.C.E.

Athens, Greece

Positive Law

1832 A.D. - London, England

Jeremy Bentham

Morality and Laws

The phrase positive law is used to describe humans who posit the law, who place the law or create it themselves, without sourcing it from a god as it is through natural law theory.

Around the 16th century in England, many people believed the system of law based on natural law was unjust because their leaders were corrupt and manipulating the laws for their own personal gain.

A theory for law was first proposed by Socrates & Plato that laws should be designed with the idea of promoting the 'good life' for the whole. Laws have a moral foundation and avoiding evil

is how we should design our laws. Morality came from understanding

the divine, the natural order of

things.

As an extension to Hobbes, he believed human nature was for humans to seek the greatest amount of individual pleasure and happiness at any cost. Therefore, he argued that laws should be judged good or bad based on whether they provided the greatest amount of happiness

for the greatest

number of people.

For hundreds of years, laws were designed with the idea that human beings are moral, rational and social and that our laws should develop and promote these behaviors.

The greeks believed in reason deriving from the divine of the cosmos, but what about cultures who held different moral ideas and social norms? This suggested laws were not fixed and changeable based on who's moral code it followed.

Positive law was a theory of law designed to remove morality and god out of the law, and focus on human reason with purpose of maintaining order in society.

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