Jurisprudence Essay Positive Law vs. Natural Law
“A man's conscience and his judgment is the same thing; and as the judgment, so also the conscience, may be erroneous.” (Hobbes 1651) When involving human instinct in the process of human law making, human emotions will undoubtedly be involved, thus causing mayhem. Positive law, on the other hand, allows a sovereign state to enact laws through a sovereign authority, stern punishments, and excluding morality, thus creating a proper balance.
Throughout history man has demonstrated it’s positional in terms of savagery. Therefore to control the actions of the public an authority needs to established to determine right from wrong. The ‘authority’ is the common view of the public, in other words the majority, a publicly elected official that grants a voice of society. This ‘authority’ creates laws pertaining to the demands/needs of the people. Thomas Hobbes was on of the first philosophers to support positive law. He believed that mankind would collapse without an authority figure. Hobbes experienced first hand the collapse of a society during the 1642 Civil war that broke out in England. His observation was that people needed to be guided in order for peace to be established. Now today we have elected representative that allow the voice of the people to be heard, but still control society through enforcing laws made for a specific population.
In order for citizens of society to live in peace they must follow the laws set in their society, and in order to enforce these laws is to encourage citizens through punishment. Because of the strict measures of positive law it truly determines what is just or unjust. Legal philosopher, John Austin, believed that laws were commands, and when one of these command was violated that would determine weather a person committed a just or unjust acted. Austin gained this militaristic mentality after serving for the British army through the early...
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