Positive Law: What is it + Theorists + Examples in Canada

What is Positive Law?

Positive Law: the theory that law is a body of rules formulated by the state, and

that citizens are obliged to obey the law for the good of the state as a whole. (ie:

human made laws)

● is the working of the law through the authority of the state.

● A human creation

● Laws are established by the state for the good of the state as a whole

● Law has no moral purpose (other than survival of the state).

● It refers to written rules that must be followed to the letter regardless of circumstance

● Anyone who violates the law must be punished according to the written rules

Thomas Hobbes

• In “Leviathan”, he proposed new purpose to law –

  To rule over the state/people as to maintain law and

  order

• People were violent and disorderly – purpose of

  government is not to defend natural law rights, but

  control the people to avoid war and destruction

• People should surrender to king/monarch – The king

  alone had the power to enforce law/his will

John Locke

• If the king violated natural rights, then people were

  justified in rebelling – replace government with one

  that respected natural rights

• Natural rights – Life, liberty (speech, religion, and thought), and

  property – no person should deny these rights to another

• Through the consent of the people, government was

  given the authority to control the state and preserve

  these rights by enforcing rules/penalties

• Strong influence on Jefferson, American/French

  Revolutions

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