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The Philosophy of Positive Law

The Philosophy of Positive Law: Foundations of Jurisprudence

James Bernard Murphy
Copyright Date: 2005
Published by: Yale University Press
Pages: 256
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  • Book Info
    The Philosophy of Positive Law
    Book Description:

    In this first book-length study of positive law, James Bernard Murphy rewrites central chapters in the history of jurisprudence by uncovering a fundamental continuity among four great legal philosophers: Plato, Thomas Aquinas, Thomas Hobbes, and John Austin. In their theories of positive law, Murphy argues, these thinkers represent successive chapters in a single fascinating story. That story revolves around a fundamental ambiguity: is law positive because it is deliberately imposed (as opposed to customary law) or because it lacks moral necessity (as opposed to natural law)? These two senses of positive law are not coextensive yet the discourse of positive law oscillates unstably between them. What, then, is the relation between being deliberately imposed and lacking moral necessity? Murphy demonstrates how the discourse of positive law incorporates both normative and descriptive dimensions of law, and he discusses the relation of positive law not only to jurisprudence but also to the philosophy of language, ethics, theories of social order, and biblical law.

    eISBN: 978-0-300-13801-6
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Preface
    (pp. ix-x)
  4. Acknowledgments
    (pp. xi-xii)
  5. List of Abbreviations
    (pp. xiii-xiv)
  6. Introduction: Natural, Customary, and Positive Law
    (pp. 1-23)

    Legalism pervades Western culture. Whenever we wish to honor some pattern or regularity that we discover in nature, or any rule or norm we discern or devise in society, we call it a law. We call causal relations in the natural world physical, chemical, or biological laws, just as we call precepts we frame for human conduct moral or civil laws. We even call the rules governing the technical arts the laws of logic, or of grammar, or of engineering. Given the prestige of law in both the Hebraic and the Hellenistic sources of our culture, we should perhaps not...

  7. Chapter 1 Positive Language and Positive Law in Plato’s Cratylus
    (pp. 24-47)

    The English expressionpositive lawis by origin a direct translation of a variety of Latin expressions, such asius positivumandlex positiva;¹ these Latin expressions, however, do not have their origin as translations or even paraphrases of any Greek expressions.² Instead, as Kuttner and others have shown, these Latin expressions for “positive” law find their origin in Greek debates about whether language is natural (phusei) or positive (thesei). The source of the new discourse of “positive” law and justice among the theologians and canonists of the twelfth-century cathedral school of Chartres seems to have been the rediscovery of...

  8. Chapter 2 Law’s Positivity in the Natural Law Jurisprudence of Thomas Aquinas
    (pp. 48-116)

    According to Thomas Aquinas, the methods and logic of every science must conform to the inherent order found in its specific object of inquiry. Indeed, Aquinas even defines rationality as the capacity both to establish and to discern order. As he says in the prologue to his commentary on theNicomachean Ethicsof Aristotle: “To be wise is to establish order. The reason for this is that wisdom is the most powerful perfection of reason, whose characteristic is to know order.”¹ The student of Aquinas who completed his commentary on thePoliticsof Aristotle certainly understood the hierarchical structure of...

  9. Chapter 3 Positive Language and Positive Law in Thomas Hobbes
    (pp. 117-168)

    Historians have long pointed out that the discourse of “positive law” arose from Latin translations of ancient Greek debates about Language. Recall that Hermogenes, in Plato’sCratylus,argues that names get their correctness from the shared expectations of speaker and listener, that is, from social consensus (kata synthēkēn). Aristotle goes further when he tells us that words get their meaning, and laws their validity, from the consensus of the community (kata synthēkēn).³ We saw earlier that Boethius’s fateful translation of kata synthēkēn as “according to the pleasure [of the name giver]” (secundum placitum) radically shifted the understanding of the authority...

  10. Chapter 4 Positive Law in the Analytical Positivism of John Austin
    (pp. 169-211)

    John Austin occupies a unique position in the history of the discourse of positive law: no legal theorist makes more use of the expressionpositive lawthan does Austin. Although Austin was in some respects a disciple of Jeremy Bentham, nowhere does he stray further from his master than in his discourse of “positive law,” which, as we shall see, brings him closer to the concerns of Thomas Aquinas and Thomas Hobbes than to those of Bentham.¹ Bentham, after all, insisted above all upon sharply distinguishing the enterprise of expository jurisprudence (the science of law as it is) from the...

  11. Conclusion: The Rise and Fall of Positive Law
    (pp. 212-226)

    We have observed that, although the norms enforced by courts form only one small part of the larger universe of factual regularities and norms we call “law,” nonetheless the norms enforced by courts are themselves quite heterogeneous in source and in content. The precise list of sources and the relations among them vary over time and place. Practical lawyers and jurists simply accept a fundamental heterogeneity in the various sources of the law enforced by courts, ranging from commercial customs, to statutes, to precedents, to learned commentary. Lawyers must learn how to identify, interpret, and apply norms from each of...

  12. Index
    (pp. 227-240)