classes is sometimes referred to as a populist. Margaret Thatcher was often
described as populist because she voiced traditional moral outrage in areas like
law and order or the family, or stressed patriotism and British national
sovereignty, in ways which were much more popular with working-class
voters than with the more liberal attitudes of most Conservative members of
parliament.
Positive Law
Positive law is a term found at least as early as ThomasHobbes, and used to
describe a concept apparent much earlier. Basically it is often necessary to
distinguish, when talking about laws, between those that exist in some
theoretical or moral sense, as withnatural law, and those which exist in a
practical sense. The latter are considered as ‘positive’ laws, and the term refers
to legislated rules that are observed and enforced in a particular society. There
may, but need not be, overlap: a particular statute (or diktat of a ruling e ́lite)
may also be seen as morally or theoretically desirable or necessary, but equally
the two realms may be totally opposed. Whether or not some rule is a positive
law is an empirical question. There is no inconsistency, for example, in holding
that Hitler’s laws depriving German Jews of their property were certainly laws
in the positive sense, but were ‘illegal’ in terms of moral or natural law.
The more extremely pragmatic of legal theorists, especially the school
founded in Britain by John Austin (1790–1859) and called ‘legal positivists’,
wanted to restrict the whole of legal study, and the whole legitimacy of law, to
positive law. A law, for Austin, was simply the command of a sovereign (that is,
anyone powerful enough to enforce it), and no other sort of law was anything
more than metaphysical speculation. Until fairly recently a modified version of
this doctrine was probably the majority view in Britain and in some American
law schools, but increasingly it is losing out to a revivified ‘natural law’ school.
The distinction is, nevertheless, intellectually useful, though also much harder
to apply than was once thought. The main problem lies in identifying the
sociological evidence required to establish that some rule indeed exists as a
positive law. Most modern legal philosophers would rely on something rather
like the ideas of one of Austin’s successors, H. L. A. Hart (1907–92), who
argued that there was in any legal system a primary ‘rule of recognition’ which
identified what were the positive laws, and that this rule of recognition could
be observed in the behaviour of those who were involved with law, such as
judges, police, parliamentarians and so on. The main theoretical difficulty with
the positive law/moral law distinction is that any legal system leaves a large
amount of room for discretion by judges, and it is difficult to differentiate
between a judge who feels bound by a natural or moral law higher than
Positive Law