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Positive Law

Positive Law

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Published by Geelyn Catindig

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Published by: Geelyn Catindig on Jun 10, 2013
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Positive law'Law', indeed, now usually refers to some national system of social regulation -- a system of socialregulation imposed by the rulers of a nation-state and otherwise coordinated by their agents andservants.
By extension, 'law' now refers also to regulatory systems to which the rulers and diplomaticagents of various nation-states have agreed. All of this goes under the academic label of 'positive law',which covers any one of the many particular imposed ('posited') systems of regulation by legal rules thatwe find in various politically organized societies.
Positive law consists of the elements of such a system, for example its legislative, executive,administrative, judiciary and military and police 'organs', its offices and officers, the rules they followand apply, and the decisions they make. Those systems have no necessary connection with naturallaw or justice. They define only what is legal in a particular society, not what is lawful among humanbeings.The positive law is not the natural order of the human world. It is the artificial order that somepowerful people (individuals and groups) in a particular society currently try to impose on others.
It isan order, not of relations among human persons as such, but of relations among social positions, rolesand functions. Thus the positive law of a particular country tells us what powers, immunities, rights,duties, claims and liabilities legally attach to the social positions, roles and functions of a general, aminister, a representative of the people, a citizen, a registered alien, a pensioner, a police man, and soon. In the same way, the rules of chess tell us what a king, queen, knight, pawn or other piece is or canor cannot do.Like a king or queen in chess, a general, citizen or police officer is not a natural person but a position orfunction in a particular sort of game (usually and grandiloquently referred to as 'a social system').Typically, the position is occupied and the function performed by a human natural person but that neednot be the case. It is a grave mistake to confuse the position with its occupant. Whatever the positivelaw [of this or that country] may tell us about what a citizen is, or can or cannot do, it tells us nothingabout what a human person who happens to fill that position at a given moment is or what he or shecan or cannot do.
Positive law, then, pertains primarily to 'artificial persons', to social positions, roles and functionswithin a particular social organization, especially one that is imposed by a state or a group of states. Itpertains to human beings only indirectly, to the extent that they are supposed to supply the physicaland intellectual labor that those positions require. In other words, it pertains to human beings asmeans or resources for organizing social activity.
However, it is conceivable -- in some cases, it already is a fact -- that automated machines take the placeof human suppliers of socially required labor. Conceivably, a social organization could develop so that itbecomes independent of the availability of human persons to supply particular skills. Then humanbeings are reduced to the status of mere objects to which social action can be applied. If and when thathappens the relations between human individuals and 'society' are analogous to the relations between
 cattle and a farmer or between a collection of pets and their caretaker. Such an outcome is in fact thewish of [philosophical] socialists, who accept at least one and usually both of the following propositions:1) Individuals belong to society, which therefore has the right to make them obey its prescriptions; 2)Society should take care of individuals because individuals are incapable of decently managing their ownlives and affairs.Positive law, when taken to its logical socialist extreme, is the scheme by means of which 'society'manages its human and other resources, analogous to the schemes a farmer uses to manage or takecare of his human and other resources.It follows that positive law has no logical or necessary connection with human life and action. Theconcept of 'positive law', as noted before, is the concept of an artificial order -- an order of artificialpersons.However, no matter how much social regulation there may be, as long as human nature is what it is andalways has been, the search for knowledge and understanding of the natural order of the human worldremains a valid objective.http://users.ugent.be/~frvandun/Texts/Logica/NaturalLaw.htm#NL-Positive law
Legal positivism, that is, the theoretical rejection of the natural law according to form
(as non-positivesource of valid law)
and content
(as law contained in no positive norm), maintains that the natural-lawdoctrine represents a dualism which is inimical to legal security; or that for fixed objective norms itsubstitutes subjective opinions concerning a juridical oughtness; or that in a dualistic fashion valid legalnorms are drawn from a system of norms which is set in contrast to the positive law (ethics, law of reason, reform proposals for new legislation, Roman law as written reason). Hence positivism regardsthe natural law as a non-law in the proper sense of the word. It refers, instead, to ethics, to fabricatedideal norms for new legislation, to politico-legal aims, and so on.Law, according to positivism, is only positive law, that is
, statute law and such customary law as isrecognized by the state
. More precisely,
positivism characterizes as law to be applied by the judge andalone to be considered by jurisprudence those norms only which are enacted as such by the factualand published will of the legislative organ in due conformity with constitutional law or which areexplicitly or tacitly admitted by it.
The positivist is ever seeking for the written or actually enforcedfactual decision of the will which converts a potential norm into an actual norm. Moreover, he isconcerned solely with this formal origin of law, with the source of the norm and its manner of formation, not with its content.
 Auctoritas facit legem,
law is will. The question of whether somethingcan be wrong in itself is meaningless for him. To him, right and wrong are not material qualities of norms; they merely denote the presence or absence of agreement with the factual will of thelawmaker. 
In contrast, for instance, to the Roman jurist, the positivist does not search for justice byway of the positive norm in which it is contained materially; he inquires rather for the norm which isderived from the will of the legislator. The establishing of this fact settles for him the question whether alegal norm lies before him. He presumes its justice, or he asserts that the question of justice is an ethicalquestion, not a juridical one.
 In constitutional states, however, the typical positivist runs into difficulties.
Particularly when it comesto applying the law, he must inquire not only whether the path of legislation prescribed by theconstitution has been followed, but also whether the law (including customary law) is not in conflictwith the higher norms of constitutional law.
And there the legal positivist readily runs afoul of naturallaw. To the positivist, many constitutional provisions are not genuine legal norms but ratherprogrammatic utterances of the constituent or constitution-making power. Take, for instance, such a
constitutional provision as “Property imposes obligations; its use must at the same time be a service of the common weal.” The positivist characterizes this provision as a mere guiding rule, not as a binding
norm for either lawmaker or citizen. He insists upon taking such a view even though this provision isaimed directly at the individualist concept of property, and though property and obligation obviously are juridical concepts. Here, in our view, lies the typical positivist short circuit. The positivist, who for thatmatter does not know what to do with such highly important constitutional preambles, perceives inthese cases invasion points for natural law to be applied by the judge. In the United States the judge, byreferring to the natural-
law foundation of man’s rights to liberty, has set himself not only above the
lawmaker but in theory even above the framers of constitutional law. For the real lawmaker is not theone who enacts the laws, but the one who sovereignly expounds them. But the interpreter refersprecisely to natural law and justice. This formalist method makes positivism possible even for Catholic
thinkers, when they regard ethics and the moral law as norms derived from God’s will. Such norms do
not indeed have legal validity, but they do have the moral force of oughtness.It is generally acknowledged today that positivism is inadequate from the standpoint of both legaltheory and legal philosophy. One of its bases, the theory of the completeness of the law or absence of gaps in the law, has been given up. The theory of legal monism has likewise been widely abandoned. Forgood faith, the principles of morality and the carefulness of the ordinary merchant are often used by the judge as valid norms not only beyond or in addition to the positive law, but even contrary to the positivelaw. That is, they are used contrary to the factual will of the lawmaker, even if generally on the basis of the unwarranted fiction that the lawmaker could have willed no wrong.
To look more closely into the matter, we may note several phenomena as sources of legal positivism. Inperiods of philosophico-ethical uncertainty and barrenness the jurist, who is of course concerned withthe practical settlement of legal questions, rightly holds to the positive law that is sure because it isenforced and applied. This is all the more true when the abstract speculations of rationalism have splitinto increasingly subjective views of various schools.
 At times when no natural order obtains, but, as inCommunist Russia, even the national community is viewed as a social mechanism to be organized alongengineering lines, positivism may well be congenial.The predominance of positivism or of the natural law is likewise connected with types of state or formsof government. Royal absolutism provides in itself a more favorable environment for positivism than doliberal democratic states in which the judge is more or less sovereign. Even forms of government aredetermined by the antithesis of reason and will, for governmental types are differentiated also by theirtypes of legislation.http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=676&chapter=67208&layout=html&Itemid=27 

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