Positive Theory of Law and Arguments Against It

Positive Theory of Law

The concept of the ‘Positive Theory of Law’ is not a difficult one to understand.

Well, if it is given the simple explanation it deserves.

And for this sake, it is important that the main words that makeup the concept be broken down.

This is to aid our understanding.

The Positive Theory of Law is one of the most popular theories of law.

What is a Theory of Law?

A Theory of law is a codified explanation on what the law should be. Or what we should regard as such. Its origin, its background, its past, its present, and perhaps, its proposed future.

The idea of law itself has contributed more controversies and diversities than clarity in semantic analysis.

I regard a Law, in general terms, as that which expresses, indicates, or imposes a consistent reality.

For details see: Law Definition and Meaning

Once anything that we can perceive by the rational capacity or senses of man is consistent, or consistent by natural phenomenon, that which expresses, indicates, or imposes it is a law.

That is, the main attribute of a Law is what I call ‘consistent reality.’

Legal Positivism: Positive Theory of Law

The word ‘Positive’ is also as ambiguous as it can get.

We can take it to mean having optimistic emotions and involvement, being sure and having no doubt. Something conclusive and irrefutable, encouraging good behaviour, affirmative, having electrical charge, among others.

But as regards the ‘Positive Theory of Law‘, the word positive can be taken to be an offshoot of or closely related to the word ‘posit.’

And in simple parlance, posit means ‘to place’ or ‘to put’.

Hence, making a good use of the knowledge of relating ideas we can say:

“Positive Law’ is that which is put or placed on the people by an authoritative ruler, or a body of rulers.”

The main principle of positive law, and one of the reasons why it is different from the natural law, is that we place it on something or somebody, while the latter is innate and inherent.

Another name for The positive theory of Law is Legal Positivism.

John Austin (1790-1859): Definition of Legal Positivism and Elements

The theory of Positive law is majorly and commonly attributed to John Austin (1790-1859). He is a British legal scholar of jurisprudence analysis.

Austin propounded his highly celebrated but controversial ‘Command Theory of Law’ in his book ‘The Province of Jurisprudence Determined’.

He published the book in 1832. In it, he defined law as:

“A command set by a superior being to inferior beings and enforced by sanction.”

There are elements we can identify from John Austin’s explanation of the concept of law.

First is the identification of a particular ruler, who is sovereign – the superior being.

This sovereign ruler is without legal limitations in his exercise of power. No legal rule binds him whatsoever. He is a dictator.

We can regard the superior being as the ‘uncommanded commander.’

Another element to note is that the subjects of this ruler must accept the act of obeying ‘him’ because of his coercive power to impose sanction.

So, the subjects give their alliance to the ruler out of the fear of punishments.

Positive School: Theory of Legal Positivism

Let’s leave the lapses of John Austin’s principles out of this. And divine The Positive law in simple parlance.

Positive law is simply that law made by anybody, body or bodies, vested with the power to make such law, which is enforced by sanction and have binding effect on the members of the state or society.

See also: Meaning of Motion in Law: Prayer and Summons

From this definition, devoid of any philosophical approach, it can be deduced that the laws and legislations made by the state to govern the affairs of the citizens, noncitizen inhabitants, domestic organizations, and its relation in the international circle are positive laws.

That is to say, the laws that the state makes are positive laws. If a law is not natural, it is most likely positive.

Authorities sanction laws to command prompt and adequate obedience. To create the reality of ‘what is’, and not just ‘what ought to be’ like natural law.

Arguments against Legal Positivism

A concept that possesses merits is prone to relative disadvantages. The positive theory of law is not an exemption.

One of the arguments against the positive theory of law is that it stresses validity rather than rightness.

According to the theory of positive law, a rule is a law once it is made by one vested with the power to make it. Without considering its goodness or badness, rightness or wrongness, or its consequences.

For this reason, the positivist legal method is a ready tool for totalitarianism and authoritarianism.

And if we adhere strictly to the principles of the Positive theory of law, then we make open our doors for dictatorial rulers.

2# Argument against Positive Theory of Law

Another argument against the John Austin’s school and the positivists’ is that law is not always couched with imperative languages, like ‘shall’ and ‘shall not’.

There is no doubt that some aspects of constitutional law appear like commands to favour the positivist.

See also: Pure Theory of Law

But this does not dispute the fact that some other does not.

Laws about making wills and marriage contracts are certainly not forced on anyone.

A person may choose to or not to make a will, or get married.

Moreover, to postulate that everybody obeys the law just because of the fear of sanction may be a pathetic error.

Legal Positivism: Conclusion

Let me wrap it all up with an authority, Uwaifo V A.G Bendel State.

In this case, some of the plaintiff’s landed properties were forfeited by an edict made by the state military governor.

The Supreme Court of Nigeria held that the court cannot inquire into the validity of decrees and edicts and the competence of the government to make them, nor inquire into whether a decree or edict was a legislative judgement.

What more, than this, could be said of justice by positive law?

See also: Comparison and Contrast between Natural and Positive Theory of Law

Nevertheless, the principle of common law and doctrine of equity exist still.

Thanks for reading. Leave a comment.

Reference:

Nairaland.com

Law: Definition, Meaning, Legal Meaning of Law

What is Law? Definition of Law

“A law is an expression, indicator, or imposer of a consistent reality.” I’ll get to explain this definition in a while. Still on Law definition and meaning. (This is a general definition from me, however)

Definitions are essential. Law definition and meaning is not an exception.

And before we begin any subject, we love to give a definition of the subject.

This allows us to have a clue about the subject, and its scope. So, before we talk about law, let’s define it.

This post is on the definition of law, meaning, and more. Yes, definitions of law and meaning.

Complications in Defining Law?

Like some other subjects, the term ‘Law‘ is somewhat hard to define.

This is so because the scope of the word is not even easily understood. People talk about Law from different angles.

We have scientific laws, laws in Economics, human laws, eternal laws, divine laws, natural laws etc.

The large scope of the word ‘law’ has made it difficulty, and nearly impossible to define.

So many people across many field have tried and failed to give an absolute definition to law.

In this post, I would share with you some of the given definitions. And then I’ll tell you about my own definition. Stay tuned.

It should be of no astonishing effect to realise that the question of the definition for law is not a fascinating one to a practicing lawyer.

That is, a practising lawyer cares less about the definition of law. Well, this is not surprising.

What a lawyer would care about is what the law says about the particular situation of his client.

And possibly, how best to twist the wheel of justice to his side of the balance.

Lawyers care about ‘what does the law say about this’ and not really ‘what is law’.

Law: Meaning_Explanation

But even as insignificant as it may look, the quest for a rigid definition for law as followed us into our present age.

Like I said supra, so many people have tried to give a good to law.

The issue behind this quest is really a jigsaw because the word ‘Law’ is as all-embracing as it can get.

The word ‘Law’ may be as a general and loose term. And in another instance, a technical and professional terminology.

There is a saying, ‘Where there is no law, there is no crime.” Law is the bedrock of any society.

Families have laws, communities have laws, people have personal laws. The nation has a constitution – the foundation of all its laws, in most cases.

Laws are all around us, everywhere in different forms. So, a definition a person or group gives is often limited by many factors.

Law Definition and Meaning

How then do we fix this? The element of law is as old as man. I think the existence of man himself is an effect of a law-cause.

How can humans explain adequately through their senses a term that is in itself the root of their senses?

How can we define our definition?

If terms like economics, religion, philosophy etc., are difficult to define, what more can we say of law?

What really comes to our mind when we hear the word ‘Law’?

Some rules and regulations given by an authority, according to which our actions and inactions are determined?

Perhaps, some other terms like law of gravitation, identity, cosines, diminishing returns, double negation, excluded middle and energy, etc.

Whatever it is that comes to our mind, we can also give a definition to law, true and direct.

Defining law is a jigsaw, but jigsaws can be solved.

Some definitions of law

Let us consider some of these definitions.

According to The Oxford Advanced Learner’s Dictionary -9th edition.

“Law is the whole system of rules that everyone in a country or society must obey.”

According to Merriam Webster Dictionary.

“Law is a binding custom or practice of a community. A rule of conduct or action prescribed or formally recognized as binding or enforced by a controlling authority.

The whole body of such customs, practices, or rules, and the control brought about by the existence or enforcement of such law.”

According to Herman Max Gluckman (1911-1975). Law is, “The whole reservoir of rules on which judges draw for their decisions.”

Prof. John W. Salmond (1862-1924), defines law as: “The body of principles recognized and applied by the state in the administration of justice.”

Let me go a step further in defining Law.

Law is a body of official rules and regulations, generally found in constitutions, legislation, judicial opinions, and the like, that is used to govern a society and to control the behaviour of its members. (Microsoft Encarta Premium 2009)

Also, according to Abiola Sanni, in ‘Introduction to Nigerian Legal Method’.

Law is, “a rule or body of rules made by institutions, bodies, and persons vested with the power to make such rules which are binding and enforced among the members of a given state or society.”

Meaning and Definitions of Law

These definitions, as far I can guess, should serve goodly for institutional purposes.

But to satisfy philosophical tendencies (if possible), let me explain to you my own definition of law.

After my Lecturer talked of the complications in defining law, as well as the failures, I began to think. And to God’s glory, I came up with this definition.

Pay close attention to this definition of law. It is not of the regular approaches at all.

“Law is an expression, indicator, or imposer of a consistent reality.”

This could be proven or hypothetical, sanctioned or unsanctioned, true or mythical, harmonious or antagonistic. In whatever way, it is still a Law.

Here, the word reality is anything that may be perceived by human senses, or subject to rational deliberation.

Let me explain.

A law may state that anything thrown up, unsuspended in space, must come down.

This is a law because it is an expression of a consistent reality. If you throw something up now, it comes down. If you throw it tomorrow, it would still fall. So, the result/reality is consistent, therefore it is a Law.

More on ‘what is Law?’ Law Definition and Meaning

Another example of law as an expression of a consistent reality is this. “When there is increase in price, there is decrease in quantity demanded, and vice versa.”

This is the law of demand. Many other laws of like pattern can be used to explain this aspect of the definition.

The law that says, “He that is guilty of murder must also be killed,” is an imposer of a consistent reality.

The reality here is the death or punishment of the person that is guilty of such thing defined as murder.

If this law is followed, it is obeyed. It this law is not obeyed, it is abridged. In either way, it remains a law (perhaps, of the state.)

If the enactment ceases to command a consistent reality, then ‘it is’ no longer a law, but ‘it was’.

“Every metal affected by fire must turn hot.” This could be law, an expression of a consistent reality.

It seems one of the main attributes of a law is that it initiates a consistent reality.

Whenever this reality seizes to be consistent, then the law seizes to be a law. We may use the verb ‘was’ in such situations, as stated supra.

Most laws made by superior beings, superior bodies, or the state, are indicators and imposer of consistent realities.

I hope my definition is clear to you now.

Conclusion: Meaning and Definition of Law

There is no reason whatsoever to assert that this definition may not be defective in some sense and situations. I do not affirm that its 100% yet.

But until one of these situations is brought to my realisation and justified adequately with sufficient rational evidences, I guess this definition satisfies all propensities to be regarded as a reasonable all-embracing definition of LAW.

According to Professor Okuniga, nobody including the lawyer has given. Nobody including the lawyer is giving. And Nobody including the lawyer will ever be able to give a definition of law to end all definitions.

But we do rest our hopes on these word? For what lies behind and before us, are tiny matters to what lies within us. If you get my gist.

So, there you have the definitions and meaning of law.

I hope I’ve been able to help your research in someway, or increase your knowledge.

Thanks for reading. Leave a comment.

References:

Wikipedia

Merriam Webster Dictionary

Oxford Advanced Learners Dictionary

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