In continuation to the eight part special series on Nature of Legal Discipline with Prof. Dr. K. Parameswaran, Lex Witness brings to you the third part of the series which lays down special focus on the Positive Theory of Law and related aspects. Follow this section for the subsequent parts of the series.
Positive theory of law broadly explains law and order are sovereign-oriented and society-induced action. They are a manifestation in the state of nature exemplified by sovereign who acts as representative of social will that accepts a sovereign. As opposed to ‘immanent and transcendent’ aspect of natural law derived through ‘causative thinking and reason’, positive law is ‘passed, promulgated or adopted by legal authority’ whose capacity to make laws is expressly made, positively accepted. Positive law takes human will, social awareness and legal compliance to be the fulcrum of law and legal movements in contrast to God-given mandates and common morality of natural law and its legal secularization or sanitization in later developments. Positive law is simply ‘posited’ by an entity (government) or an official (sovereign) who is vested with legal authority by government system formed from collective and conscious social will to prescribe rules and regulations. Thus, positive law (‘lex posita’ or ‘ius positivum’) believes in an externally man-made set-in order created specifically for individual human nature and collective society for its birth, existence and dissolution. It opposes natural law and its ever-existent state of eternal dimensions of invisible order and common morality. It replaces them with human will (individual and collective), sovereign command and sanctioned action. It creates positive rights handed down to every human being by virtue of ‘being part and representative of society’ and, having taken part in the creation of legislative capacity attributed to sovereign. Positive law gives manifest legal justice through man-made legal systems that are logical in outcomes (law-input and justice-output) that gives form for an empirical basis of legal authenticity and realism for individual and collective order of everyone in society.
Theories of positive law, its justice and rights show phases of development since medieval to current times. With birth of human civilization and advent of rational mind coursing through pathways of religious, colonial and industrial developments in society, intellectual and social consciousness questioned basic tenets of natural law. It questioned as to what is ‘something imperative coming from a higher command of Nature or common morality for all’ which a heterogeneous society of divergent individual variables and liberties need to accept them as one common code for everyone? Other natural elements like ‘universal, essential, common imposition invisible of authority’ must be positively tested by their appropriateness to time, space, sense and context to a nonstatic society that continuously evolves –claim positivists. This according to positivists changes the very character of law making it continually moving, spreading and evolving to the growing needs and heterogeneous requirements of both individual human and collective social nature. A vibrant heterogeneous society cannot avoid this energetic and systematic positive legal processes and outcomes. Positivists feel bothered by naturalist’s claim of being something timeless and spaceless in the very state of nature. Positivists could not see human life and society frozen, immobile and stock-still. Hence they propagate a view that law ought to be consciously created, questioned and amended to changing orders of society where human will, awareness, motivation and intention become key partners of an integral legal system. This removes ambiguity of ‘invisibility and invincibility’ to law echoed from corridors where naturalists reside. This in turn checks non compliances and violations. It develops law-habits which legal systems see as foundations. Command, authority and sanction of positive law are part of this symbiotic process between State (sovereign) and society (individual and collective social will) who play their respective roles of feeding each other’s responsibilities. Positive law ‘gives’ rights and obligations as society creates them to be given and, hence they become subjected to collective social will. Law is to be accepted and complied through law-habits as a way of social order through which individual and collective awareness gets mutual and complementary relationships. Sanctions for non-compliances or violations are to be notified and acted upon so that individual and collective social awareness tries to understand as – ‘what it creates, so it must abide by’. Movement of law and social change becomes dynamic and realistic in positive law rather than idealistic or transcendental as seen in natural law. Positivists who oppose natural school must reason their opposition as to why ‘imperativeness, invisible universality, essentiality, commonality and morality’ of natural law have to give way for positive law at a given time, space and context when it comes to implementation. Failing which positive law might strangulate social and legal process which otherwise would get some benefit from natural law. With the emergence of neo-classicism and, consequent modernity and post-modernism in globalizing age, positive law theories, its justice and rights explain how human will, intellect, awareness, intention and motivation from individual and collective social nature become logical elements and partners in law-making systems to fulfil aims and functions of law. All rights and liberties (individual and collective), equality, justice, social and psychological crises of modern life ask for a new role for positive law whereby ‘deliberate and willed’ human thinking, awareness and implementation becomes tool to understand and solve the problems of globalizing community of lop-sided growth. This makes positive theory of law contribute to a new angle in the juris corpus of the nature of legal discipline.
The ongoing problems out of misunderstandings or lop-sided growth of religious, social, political, economic and psychological crises show a need to revive canons of positive law with an understanding of why natural law becomes vague in tackling these issues and how positive law becomes a safe refuge to legal movements to control these social illeffects. Though understanding and developments of positive law varies from divergent modern legal traditions across world, its core subject-matter is clear in these issues. The true substance of positive law in its assertiveness to make law, legal rights and obligations understand law from ‘order in externalized social reflections’ and to impact order ‘outward’, remains vitally relevant. Laws that result from conscious human will and awareness (individual and collective), sense of externalized social order must become new parameters of positive law for our current times. Especially in this globalizing age where laws made from instant agreements to satisfy only the interests of both parties cannot result in mere self-aggrandizement. It must include overall national and international life with collectivity and its order in harmony and integration. Instant self-satisfying or individual-centric agreements can override social fabric of collective development, equality and manifest justice in the long run except for interested parties to agreements. Poverty, growing terrorism and religious extremism that have disturbed our peace of individual and social well-being at present proves illeffects of self-aggrandizing parties-alone benefits. It shows us the need for ‘conscious human will, legislative decision and social implementation to benefit one and all’. Are not the extreme battles, bloodbaths and utter disrespect to collective peace and security nothing but a result of over glorification of individual self-liberties or party-autonomy of unholy contracts? This alarming situation has awakened human minds across different legal traditions to ‘consciously think and act’ and ‘will to implement’. This is bound to become a legal norm soon. Its welcome sign is visible in new international agreements and renewed impetus to aims and functions of international organizations performing supra-national responsibilities. Thus, positive theory of law fills gaps left by natural theory or by those who oppose natural theory and without being part of collective society. This has brought a crucial role for future world legal-order where positive theories step in, cancel limitations of natural theory and show a way forward. This makes legal reality visible, practical and effective in ensuring balance between individual liberties and collective order for everyone with equilibrial equality and just liberty. Thus,modern positive theory of law of conscious will, legislative decision and social implementation with individual and collective order, welfare, peace, development and security become an indispensable feature of the nature of legal discipline.
This comes from its core analysis of human will and its conduct born out of individualsocial- sovereign-State complex. What an individual want; how it affects society as a whole, individual being a part of society, State-sovereign which legislates and implements through rules and regulations, inter-relationships between these and their out comes are – what influences legislation of rights and obligations of people who become part of law-making and legal systems. Sole power of positive theory of law, its justice and rights comes through analysis of two factors though they are often misunderstood or not yet fully explored. They are ‘motivation, awareness and intention of human will’ and ‘liberties of individual and social collectivity’ in life and society. These factors with the understanding of reason, its how, cause and effect of all kinds of relationships turns them into positive obligations of life. These positive obligations if accepted by sovereign through collective will and consensual process give positive effect (legal regulations) to do’s and don’ts. This expressly-made and positively-recognized obligations based on intended, motivated human will and awareness, individual and social liberties bring positive law, its justice and rights. When legal obligations become law-habits through observances and compliances, legal systems are effectively established. In one way, externalized lawhabit of positive law can also be a part and parcel of silent and un-established nonlegal natural law. Thus, positive law can give support through logical outcomes of legal movements to what natural law wants but waits till the individual and social will understand and accepts it as norm for lawmaking. Positive law can give external, exterior and outer form to un-born natural law. Natural law gets effect through positive law. Natural law also compliments positive law by supporting silently from behind in one way, what was mysterious or abstruse in natural law, becomes vibrant and vivacious through positive law. A study of the Indian Constitution and the United Nations Charter can explain this dimension of double-impact and superimposed-effect of positive law with natural law when we analyze their provisions. For example; Three Lists such as Union, State and Concurrent Lists with numerous Entries under Seventh Schedule in the Indian Constitution or Rules of the Statute of the International Court of Justice as a part of its Statute appended to Charter. They are best examples of positive legal provisions of legislative capacities and implementation that are born out of intended or motivated will comprising of benefits to both individual and social collectivities.
Human will of conscious motivation and intention and, individual and collective liberties towards common welfare are indispensable elements of positive law propositions. With these elements positive law theories, its justice and rights between human beings and social collectivity become a faithful representative to the will of the wants of society. Law-habits become operative irrespective of the absence of natural law commanding the same. Ultimately what society wants in law, it does and fulfills through law-habits except that it ‘must’ benefit all. Core rationale behind social behavior in a society where heterogeneous complexity is an order of the state of nature is clearly seen. When we come to know how law is to be made and must serve one and all, cause and effect relationship in human will and awareness, intention and motivation, observance and law-habits, overall life in the society becomes predictable paving way for structured movement of growth and development from one phase to another without injustice or inequality. We understand why and how law is made, and the power to act according to what is conceived as right and wrong not just for oneself but for everyone around. A systematic and predictable development of individual and social awareness in society gets established.
Positive rights we fight in legal systems are a result of positive law. They protect people positively as they exist inside a time society- space framework which only a positive theory of law can voluntarily create and simultaneously support from all sides. Positive law exists because of its conscious human formulation and social existence. Human will, motivation, awareness, formulation and sustenance of positive rights support society to exist in balance with minimal or even without violations. Contributions of positive law is significant as it comes from conscious human will which gives values to human actions. It sets goals to social life. Irrespective of criticisms on positive law that it hyper-activates liberties to a great extent, it is still counter-able by the same mechanism of law-(re)making and (un)doing through legal systems! Even when two human liberties conflict resulting in contradiction where positive law is wordless and ambiguous, conscious individual and social will brings a positive legal way.
Positive law gives ability to law-making, power to question Governmental authority. It is a pure legal power, norm and identity out of positive social will towards logical positive legal systems. When natural law waits, positive law brings it with social acceptance as norms to become law. State’s (sovereign’s) duty to bring laws out of requirements of social contract suffixes existence of positive law. Human will, motivation and awareness, individual and collective liberty enjoys and fulfills their existence. In short, nature of legal discipline from positive law methods leads law to be practicable and empirical in existence and be rationale without baffling and moribund morality. When natural law seems to be vague, positive law sets forth light and vision for a legal path. When inner sense of natural law is left unfelt, social discomfort arising out of it can set positive law in motion to accommodate inner legal sense. The ‘ought and normative’ guides human will and social awareness. This positive intellect, productive logic and constructive sagacity brings fulfilment to life (law) energies of human being and nature which are endowed with awareness, motivation, will, decision, implementation and compliance. These pleasing faculties of human life evolved out of millennial evolutionary stages find a noble (legal) basis by which peaceful and progressive individual and social life can be developed through law and legal systems.
Positive law and its methods are miraculous if three concerns are addressed in legal research. One, its exaggerated anti-stand to natural law is because what is held to be moral and vague is only because of its untimely persistence to become a part of social norm which becomes law. What is moral and vague becomes easily a part of law when social time is ripe or, circumstances create extreme social discomfort. For e.g.; sustainable development, climate change or CSR were morally vague where individual self-liberties and industrialization were lauded few decades back without application of mind then to holistic life. And, now sustainable development, climate change or CSR are pressing legal paradigms of social collectivity across the world. Two, not all laws are observed through positive factors of command and fear all the time. Human nature, though otherwise selfish does become selfless at times. Man abides by laws beyond his personal and externalized interest for order sometimes. Altruism becomes part of life when human satisfaction reaches an optimal fulfilment from self-actualization. Neither natural nor positive law can absolutely command or guarantee this state of self-sacrifice that manifests without looking into books of legal do’s and don’ts. Three, when State (sovereign), individual and collective will, awareness, motivation, intention, law habit, social and common good are stressed (legal education) in their pure and essential state of forms towards collective benefit, positive law and its methods take a natural center stage in law-making, protection and implementation. Positive rights become natural. Or natural rights become positive with implementable processes for compliance
www.grandmasters.in | 8 Years & Counting
www.rcls.in | 8 Years & Counting
www.itlegalsummit.com | 8 Years & Counting
www.bfls.in | 8 Years & Counting
www.maels.in | 8 Years & Counting
www.plcs.co.in | 8 Years & Counting
Copyright © 2020 Lex Witness - India's 1st Magazine on Legal & Corporate Affairs Rights of Admission Reserved
