Aliran Positivis

There were two reactions to the natural

law school: (1) Historical school, and
(2) Positivism. (Hari Chand, p. 66)
The historical school and positivism
condemned natural law theories. In
their opinion they were entirely
inadequate to explain the phenomenon
of law (p. 66).
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What Is Positive Law?
Positive law was thought to be posited in the
will theory: it was the expression of the will of
the law giving authority (p. 66).
Austin: the laws which are properly and
strictly speaking laws are those commands
which are issued by a political superior to
whom the majority of people in the society
are in the habit of obedience, and which is
enforced by threatened sanction. In short
Austin’s view of law is one of orders backed
by threats
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Austin: Of the human commands which are
properly speaking laws, the ones which do
not strictly qualify are those which have
neither legal authority nor backing; an order
from master to servant or from parent to
child does not count as law
Olivercrona says that legal positivism
connotes the view that all law is positive in
the sense of being an expression of the will of
a supreme authority (p. 66).

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Characteristics of Positive Law
according to Pound
Pound lists the following characteristics of the
analytical school:
 They consider developed system only
 Law is consciously made by legislators or judges
 Sanction is necessary
 The typical law is statute
 Their philosophical view are utilitarian or
teleological
 They are not willing to examine the premises or
square law with social needs.

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Characteristics of Positive Law (1)

Other jurists add to the list the

following characteristics of positivists:
 They keep law and morals separate
 They are opposed to natural law theories
 Positivism thrives on stable conditions of
societies. It tends to lose ground when the
society is undergoing radical changes.
 They emphasize on the formal study of law

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Characteristics of Positive Law (2)

 Positivists hold that the analysis of legal

concepts is worth pursuing as distinct from
sociological and historical enquiries or
critical evaluation
 They also hold that decisions can be
deduced logically from predetermined rules
without recourse to extraneous ideas like
social aims, purposes or policies or morality
 Positivism stands for analysis, love or order,
precision, systematic study of law

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Characteristics of Positive Law (3)

 They do acknowledge the influence of

ethics and morality on the development of
law but they want to separate them just
for the sake of study.

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Positive Law: Incongruence between
Morality and Law

The Nazi Nuremberg laws, the laws

establishing and upholding apartheid in
South Africa and the US racial
segregation laws have all been taken as
outstanding example of manifest
incongruence between morality and law
(Tebbit, 5)

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Positivist
Moral relativist tend to argue that what
usually happens is that with the
advance of civilization, the law has
comes into conflict with evolving moral
norms, as these practices are
increasingly perceived to be wrong; and
that the law continues to protect
outdated moral beliefs until it is
reformed
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Positivist
The positivist separation thesis insists
that law is one thing and morality, or
the moral evaluation of law is another.
This means the connection between law
and morality is contingent; laws do not
always coincide with moral values or
moral codes

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Positivist
The legal positivist finds at the basis of law a
human convention, something decided or
stipulated at a determinate time, by flesh and
blood individuals, for a particular purpose,
with a specific function in mind. Law thus
interpreted as an agreement in the sense that
it is an outcome of decisions, rather than the
issue of something beyond human control (p.
11).

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