Positive Law

Tom D. Campbell

Following the original work of Jeremy Bentham (1748–1832), John Austin (1790–1859) popularized the term positive law , thus marking the emergence of classical legal positivism, which traces back to the work of Thomas Hobbes (1558–1679) and the origins of the modern state. Austin defined positive law as “the laws, properly so called, which are set by men as political superiors or by men, as private persons, in pursuance of legal rights” (1955: 9–10). He distinguishes positive law from the law of nature, that is, the laws set by God or divine law. Positive law (and positive morality), but not divine law, come into existence “by position” or human action. Positive law and positive morality both “flow from human sources,” but positive morality is distinguished by being “set by men, but not as political superiors (nor in the pursuance of a legal right).” Austin wrote, “The science of jurisprudence is concerned ...

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