Jurisprudence Module 1 – Classical Natural Law & Analytical Positivism

Vocabulary flashcards summarizing key thinkers, doctrines, and concepts from Module 1 on Classical Natural Law and Analytical Positivism.

Montesquieu (1689–1755)

French Enlightenment thinker who formulated the Doctrine of Separation of Powers in his treatise “The Spirit of Law” (1748).

The Spirit of Law (1748)

Montesquieu’s seminal work arguing that liberty depends on keeping legislative, executive, and judicial functions separate.

Doctrine of Separation of Powers

Principle that governmental power must be divided among legislative, executive, and judicial branches to prevent tyranny.

Legislative Power

Branch of government that makes laws; must remain separate from executive and judicial powers to safeguard liberty.

Executive Power

Branch that enforces laws; combining it with judicial power risks ‘violence and oppression,’ according to Montesquieu.

Judicial Power

Branch that interprets laws; if merged with legislative or executive power, citizens’ life and liberty are endangered.

Checks and Balances

System through which separate powers restrain each other, inspired by Montesquieu’s separation-of-powers doctrine.

Classical Era of Natural Law

Period in which thinkers like Montesquieu and Rousseau grounded legal theory on universal, rational moral principles.

Jean-Jacques Rousseau (1712–1778)

Swiss philosopher of the third phase of Classical Natural Law, famed for his Social Contract theory and idea of general will.

State of Nature (Rousseau)

Hypothetical pre-social condition where humans lived happily and equally before being corrupted by property and society.

Social Contract (Rousseau)

Agreement by which individuals totally surrender natural rights to the community, forming a body politic governed by general will.

General Will

Collective will aiming at the common good; obedience to it is, for Rousseau, equivalent to self-rule.

Popular Sovereignty

Doctrine that ultimate political authority resides in the people collectively, not in rulers or representatives.

Alienation of Rights

Rousseau’s concept of fully transferring one’s natural rights to the community to secure equality and civil liberty.

Civil Liberty (Rousseau)

Freedom secured within society by laws that individuals prescribe for themselves via the general will.

Majority Rule (Rousseau)

Practical mechanism for expressing the general will when unanimous consent is unattainable.

Legislative Supremacy (Rousseau)

View that law-making power, expressing the general will, stands above executive and judicial functions.

Direct Democracy

System in which citizens themselves draft and ratify laws; deemed by Rousseau the only true form of freedom.

Representative Democracy (Critique)

Form of government Rousseau criticized as reducing citizens to ‘slaves’ once they delegate law-making to representatives.

Natural Rights (Rousseau)

Inalienable rights inherent in human beings, forming the moral basis for legitimate governance.

Sovereignty (Rousseau)

Exercise of the general will; inseparable from the people and incapable of conflicting with their interests.

Analytical Positivism

Legal philosophy focusing on describing law ‘as it is’ through empirical and logical analysis, excluding moral evaluations.

Auguste Comte (1798–1857)

French thinker regarded as the founder of positivism; proposed studying society and law using scientific methods.

Positive Philosophy (Comte)

Comte’s multi-volume work outlining the evolution of human thought and advocating an empirical science of society and law.

Three Stages of Human Thinking

Comte’s schema: Theological (supernatural explanations), Metaphysical (abstract essences), and Positive (empirical science).

Theological Stage

Earliest stage where phenomena are explained by divine or supernatural causes.

Metaphysical Stage

Intermediate phase relying on abstract principles or essences rather than empirical evidence.

Positive Stage

Mature stage that rejects speculation, relying solely on observation, experimentation, and scientific method.

Legal Positivism

School holding that law’s validity depends on its enactment by recognized authority, not on its moral content.

‘Law as It Is’

Positivist focus on describing existing legal rules and structures, distinct from ethical judgments about law.

John Austin (1790–1859)

English jurist whose ‘command theory’ defined law as the sovereign’s general command backed by sanctions.

The Province of Jurisprudence Determined (1853)

Austin’s principal work systematically expounding analytic legal positivism.

Command Theory of Law

Austin’s view that a legal rule is a general command from a sovereign to subjects, enforced by threat of sanction.

Sovereign (Austin)

Person or body habitually obeyed by society and itself not habitually obedient to any earthly superior.

Positive Law

Law formally ‘posited’ or laid down by a sovereign authority, distinct from moral or divine law.

General Command

Rule aimed at classes of persons or acts; only such commands qualify as law in Austin’s theory.

Sanction

Penalty or coercive measure backing a sovereign’s command, giving it obligatory force.

‘Disjunction of Law and Morality’

Positivist insistence that the existence and validity of law are separate from its moral merit.

Jurisprudence (Positivist Role)

Scientific analysis and classification of legal norms; avoids evaluating their justice or ethical worth.

‘Law Must Be General and Equal’ (Rousseau)

Principle that laws should apply uniformly to all citizens, preventing privilege and arbitrary rule.

Government as Revocable Agency

Rousseau’s idea that government is merely an instrument of the sovereign people and can be modified or abolished.