What Is Positive Law?

Abstract

The following notes attempt a brief introduction to the mature works of Nietzsche that speak most pointedly and most explicitly to the fundamental questions of jurisprudence.The main texts upon which it relies are contained in Jenseits von Gut und Bdse, first published in 1886, immediately after Also Sprach Zarathustra; and Zur Genealogie der Moral, first published in 1887.1 By Nietzsche's own instructions, these last two books are to be read as a single work, since the latter was written as an "addition intended to complete and clarify" the former.Oddly perhaps the title of this Essay does not even allude to the work of Nietzsche.It only asks the question: what is positive law?Wrongheaded as it may seem, the omission is deliberate.The task before us indeed calls upon us to think through the question of the essence of positive law.To study Nietzsche is not to ascertain the historical record of "what Nietzsche said," nor to seek mastery of that mass of materials in the construction of tidy "nietzschean" doctrines.Great thinkers demand that we let their words draw our attention to the matter at issue in their thought.At issue in Nietzsche's thought is the question of the essence of positive law. L POSITIVE LAW AS WILL TO POWERWhat is positive law?We may begin with the familiar account that the word "positive" suggests immediately: positive law (Nietzsche calls it Gesetz) is law that exists by virtue of being posited (gesetzt), laid down and set firmly, by a will empowered so to will.Such law "exists" in the sense that it has validity

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