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This chapter continues to explore the rabbinic conception of Mosaic Law in an attempt to discern the extent to which and the manner in which that conception may have been informed by Greco-Roman discourses of natural law and positive law. Because the primary discourses of natural law in the Greco-Roman tradition underscore the rational character of the law, it takes up the question of the rationality of the Mosaic Law as represented by the rabbis. The chapter examines rabbinic sources that shed light on a constellation of questions that address the matter of the Law's essential rationality: Is the Law depicted as rational in the sense that it is not arbitrary and contains no contradiction or absurdity, no illogical or paradoxical claim, or does it defy logic and natural reason? Is it depicted as possessing intrinsic rationales or only an extrinsic utility of some kind? Is the Mosaic Law represented as rationally accessible or inaccessible? And does it derive its authority from its rational character or from a coercive sovereign will?

This chapter places the arguments of the rest of the book into philosophical context. It distinguishes between liberty and licence, identifies the natural law method of given‐if‐then reasoning, and distinguishes natural law ethics from natural rights. It argues that a respect for natural rights contributes to the obligatoriness of positive law. This ‘hypothetical imperative’ form of argument is identified as consequentialist but not utilitarian.

This chapter reviews seven basic categories of thought in Western social and legal theory on the relationship between law and society: classical legal theory, natural law tradition, legal positivist tradition, custom-culture tradition, law and social organisation tradition, selective mirror tradition, and instrumentalist tradition. It appears that the Greeks conceived of positive (or ‘written’) law much as we do, in term of authoritative declarations of the state (keeping in mind that theirs was primarily a city-state, not the nation state of today). Their views are forerunners of the command theory of law, given its definitive formulation by John Austin in the early 19th century. Both Plato and Aristotle believed that the fundamental function of law is the maintenance of social order.

The term ‘law’ is usually taken to refer to forms of what is typically called ‘state law’ or ‘positive law’, including constitutional law, enacted legislation, law arising from or associated with the courts, and, from many perspectives, elements of international law. This chapter proposes an understanding of ‘law’ as those judgments and choices that in recurrent kinds of circumstances are generally accepted and approved in a particular community. This is referred to as the ‘living law’, the communal law, or the communal moral tradition. The chapter introduces the Roman law definition of justice given in Justinian's Corpus Iuris Civilis — the giving to each what is due — and traces the links between ‘law’ and ‘justice’ in light of these understandings and with particular reference to the thought of Aristotle, St Thomas Aquinas, and Michel Villey. An overview of the book's contents and structure is also included in this chapter.

This chapter examines Thomas Aquinas' account of law's positivity. For Aquinas, there is a strict analogy between divine law and human law: both kinds of law are deliberately imposed by a legislator and both kinds of law include precepts whose content is natural and positive. God, on Aquinas' account, both lays down law and lays down particular determinations of natural law. To attempt to understand his account of law's positivity apart from his account of divine law is just as anachronistic and misleading as to attempt to understand his philosophical analysis of law apart from its theological context.

This chapter examines John Austin's discourse of positive law. It shows that although Austin was in some respects a disciple of Jeremy Bentham, he strays furthest from his master in his discourse of “positive law,” which brings him closer to the concerns of Thomas Aquinas and Thomas Hobbes than to those of Bentham.

This chapter discusses Cicero's positions on legal matters. After a survey that brings various facets of this complex and complicated topic into view, the analysis focuses on how he deals with the perceived non‐coincidence, or even conflict, between (positive) laws or legal institutions and justice. Case studies include his philosophy of crime and punishment in the in Pisonem, which serves as a rhetorical substitute for malfunctioning law courts; and his appeal to the authority of natural law as a benchmark and justification of political action, above all in the Philippics.

This chapter applies the three principles of equity to the practical domain of positive law. In such applications they transmute into the principles of ‘society, property, and commerce’. Human beings do not mutually observe such basic duties as not to kill or harm or defame or steal from each other, they cannot together sustain a peaceful community. Yet we need to live in society, hence we need institutions to back up the basic duties using adjudication and coercion when necessary. Property is the necessary domain for the exercise of liberty. People cannot act freely save with access to physical space and to material resources. Property regimes secure this. Commerce then follows naturally as the engagements people make enable them to engage in exchanges of all sorts with each other, each in pursuit of some reasonable life plan.

This chapter begins with a detailed history of the emergence of the term ‘positive’, in relation to law, in the 12th and 13th centuries, most richly and subtly in Aquinas, whose texts are described and analysed in detail. A concluding purely theoretical section sets out, illustratively, the basic reasons why the alleged debate between ‘natural law theory’ and ‘legal positivism’ is misplaced and futile, through inattention to ambiguities which, once noticed, enable it to simply dissolve. Though human law is largely artefact and artifice, not a conclusion from moral premises, neither its positing nor the recognition of its positivity can be understood without reference to the moral principles that ground and confirm its authority or challenge its pretention.

This chapter examines Thomas Hobbes' account of language and law. Hobbes inherited from the medieval Scholastics a discourse about language and law that is already quite “positivisitic,” in the sense of focusing on the deliberate imposition of meaning and validity. Hobbes often explicitly compares law to language, and legal validity to linguistic meaning. However, it is argued that Hobbes' deeper understanding of law and of language is not purely positivistic or relativistic or skeptical. In fact, his account of legal and linguistic stipulation rests on his account of natural signs.

Fundamental changes have occurred in the way in which theorists talk about and understand the relationship between law and society, changes that have taken centuries to develop and are the result of a cluster of philosophical, political, economic, social, and cultural factors. This chapter elaborates on several key changes. The instrumental tradition is a product of and has contributed to these changes. The chapter presents a theoretical challenge to the mirror thesis based on a law-society framework consisting of the following elements: custom/consent, morality/reason, and positive law.

Morality is differentiated from law above all in being normative but not institutional. According to one approach, morality has the important character of enshrining and depending upon the autonomy of moral agents. This then indicates a fundamental distinction between morality and law, even though both focus often on essentially similar questions. This chapter presents an argument to this effect.

In this chapter, the three types of law are discussed. Natural laws are intrinsic to reason and are never inapplicable. The second type of law refers to that whose relation to natural law is intrinsic, direct and immediate, but is at times inapplicable in some situations. The third are positive laws, which are defined as the product of human deliberation and choice. The second and third types are linked back to the natural law, having an intrinsic relation to it. To understand legal positivism, the operation of the types of laws stated must first be understood. The term ‘positivity’ is also defined in this chapter, to mean a concept of organizing the reflection on law, legal rights and legal justice. The discussions of Thomas Aquinas and Aristotle about law are used as support for this chapter.

This introductory chapter begins by considering the meaning of positive law. It then discusses debates over the relative importance of nature and convention in explaining many kinds of human conduct; how the discourse of positive law takes its starting point from theories that have already transcended the nature-convention dichotomy; the logic of nature, custom, and enactment; positive language and positive law; the quandaries of positive law; and legal positivism and the end of positive law.

A formidable threshold task in the project to construct a general jurisprudence is to come up with a characterisation of the law-society relationship. This relationship is too complex and unruly to capture fully in a single formula, and can be approached from too many different perspectives. This chapter describes a working framework for the relationship between law and society, pared down to two basic components. The first component consists of two core themes about the relationship between law and society: the idea that law is a mirror of society and the idea that the function of law is to maintain social order. The second component consists of a breakdown of connections between three elements: custom/consent, morality/reason, and positive law. Every theory about law and society encompasses one or another or both of these components.