- During the 16th and 17th centuries, England was consumed by religious, political, and social upheaval that included a civil war and the beheading of a king. It was a period of extreme violence, fear, and lawlessness. The theory of natural law – that law is based on divine revelation and that it was put in place for moral improvement – did not seem to accord with the contemporary reality of life. Out of this chaos developed a new theory about justice and the law.
- Philosophers such as Thomas Hobbes and John Locke recognized that in order for stability and order to return to England there must be a new definition of law. This theory would eventually become known as positive law.
- Positive law is the belief that law is established by the state, for the benefit of the state as a whole.
- Positive law has no moral purpose other than to ensure the survival of the state and its citizens.
- Obedience to the law is no longer a matter of conscience, as it had been for Socrates or Aquinas. To disobey the law was a crime and anyone who broke the law was subject to punishment.
- In positive law there is no distinction between law and justice – justice means conformity to the law. Law and justice are one in the same.
- The condition that human laws conform to certain standards of morality and justice in order to be valid is abandoned. The only real morality is in human obedience to state law.
- There was no longer a debate over who had authority over the law, the church, or the state. From this point forward the church would always be subservient to the laws put forward by the state.
- Hobbes was interested in the nature of man, and what effect this had on society.
- Hobbes concluded that the state of nature was nothing more than a state of perpetual war, and man was a nasty, brutish, and violent creature.
- In the interest of survival and self-preservation, people were forced to surrender their natural rights to a king or sovereign. The king alone should have the power to create laws. This could be the only way to ensure survival.
- People would obey these laws because refusing to do otherwise would mean a return to chaos and a state of perpetual war.
- In his book Leviathan, Hobbes advocated a strong leader who could rule over society and therefore prevent the return to man’s natural state of greed, violence, and anarchy.
- Like Hobbes, Bentham was interested in the nature of man.
- Bentham felt that humans were motivated by the desire to achieve pleasure and avoid pain.
- Therefore it made sense to judge laws on their ability to provide happiness to citizens.
- For Bentham, it was clear that for a law to be just it would provide “the greatest happiness to the greatest number of people”.
- This theory became known as utilitarianism. Laws would be evaluated by their utility (usefulness) to society.
- Austin was a contemporary of Bentham and was influenced by the concept of utilitarianism.
- He used utilitarianism as the basis for his ideas, which would lay the foundation of modern positive law theory.
- Austin felt the law should be completely separated from morality. He argued that judging laws on a moral basis was subjective (based on personal feelings/emotion) and would potentially lead to anarchy because individuals would be free to select those laws best designed to meet their needs while disregarding the others
- Positive law provides an objective standard for human conduct: a legal norm applying equally and impartially to all individuals. Rule of Law.
- This concept left little room for civil disobedience, but for Austin “the mischief inflicted by a bad government are less than the mischief’s of anarchy”.
- For Austin, laws could not be judged on whether they were bad or good but on useful they were to society – their social utility.
- Feminist jurisprudence came out of the women’s liberation movement in the 1960s.
- FJ believes that the law is an instrument of oppression (in this case, oppression of women).
- Historical examples of inequality
- Persons Case 1929
- Women’s Franchise Act (21 years can vote in federal elections, 1918)
- 1925 men can file for divorce for adultery but women could not.
- Unequal Representation in Law (example: insurance plans not applying to pregnant women)
- Bias in allowing men to rise to the top, where women cannot attain positions of power/prestige.