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The Philosophy of Positive Law The Philosophy of Positive Law Foundations of Jurisprudence James Bernard Murphy Yale University Press New Haven and London Copyright © by Yale University. All rights reserved. This book may not be reproduced, in whole or in part, including illustrations, in any form (beyond that copying permitted by Sections and of the U.S. Copyright Law and except by reviewers for the public press), without written permission from the publishers. Set in Adobe Garamond and Stone Sans types by The Composing Room of Michigan, Inc. Printed in the United States of America. Library of Congress Cataloging-in-Publication Data Murphy, James Bernard, – The philosophy of positive law : foundations of jurisprudenrce / James Bernard Murphy. p. cm. Includes bibliographical references and index. ISBN - - - (hardcover : alk. paper) . Legal positivism. I. Title. K .M . —dc A catalogue record for this book is available from the British Library. The paper in this book meets the guidelines for permanence and durability of the Committee on Production Guidelines for Book Longevity of the Council on Library Resources. Matri Patrique Contents Preface, ix Acknowledgments, xi List of Abbreviations, xiii Introduction: Natural, Customary, and Positive Law, 1 Positive Language and Positive Law in Plato’s Cratylus, 2 Law’s Positivity in the Natural Law Jurisprudence of Thomas Aquinas, 3 Positive Language and Positive Law in Thomas Hobbes, 4 Positive Law in the Analytical Positivism of John Austin, Conclusion: The Rise and Fall of Positive Law, Index, Preface At the foundation of philosophical jurisprudence, from Plato to Hans Kelsen, are three sets of concepts: natural law, customary law, and positive law. Each of these sets of concepts can be understood only in relation to the other two. They are united by a set of analogies and contrasts within a circle of interdefinability. Positive law is contrasted with both natural law and customary law; customary law is sometimes “second nature” and sometimes “unwritten law”; natural law (ius naturale) is sometimes described as inherent, like custom, and sometimes as externally stipulated (lex naturalis), like positive law. In other contexts, these three sets of concepts form a progressive hierarchy such that customary law presupposes natural law just as positive law presupposes customary law. All of these interrelations reflect the attempt to work out the relation of what is natural to what is conventional in law, of what has intrinsic moral force to what does not. In this book I explore the set of concepts known as positive law from Plato to John Austin; I show that there is a striking continuity in the discourse about positive law across the whole tradition of philosophical jurisprudence. In the future, I plan to write companion volix x Preface umes about natural law and about customary law, thus completing the foundations of philosophical jurisprudence. Unless otherwise explicitly noted, all translations and all paraphrases from the Greek, Latin, German, and French are mine. All the Greek is transliterated according to the standard conventions: long vowels have a macron, and iota subscripts are indicated by an i immediately following the long vowel. In all quotations, the emphasis is that of the original author. Acknowledgments I have had the privilege of presenting the various chapters of this book in faculty seminars at Dartmouth College, Yale University, the University of Chicago, Newnham College, University of Cambridge, and the School of the Ius Commune, Erice, Sicily. I have learned a great deal from these discussions. I have benefited