3.2.3 Positive Law
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- Working definition
- Examples of how ‘positive law’ is used
- The meaning of ‘positive law’ in terms of MoE, affordance and LPbD
- Positive law is the entirety of legal norms that are in force in a specified jurisdiction, derived from the sources of law.
- As explained under legal norms, this includes both primary rules (regulative, i.e. legal norms that directly regulate) and secondary rules (constitutive, i.e. legal norms that define how primary rules can be made)
- Being in force refers to (1) the binding character of positive law, (2) the state’s actual power to enforce the law and (3) a decision by a legislator, public administration or court whereby they enact legal norms in the sense of issuing, interpreting and/or applying them. All three points relate to the nature of legal effect as opposed to causal effect.
- Legal certainty depends on the ‘positivity’ of the law
- Positive law is informed by the moral principles that constitute its implied philosophy and simultaneously informs the moral practices of those subject to its normativity
- Positive law differs from morality in (1) that it does not depend on the moral inclinations of an individual decision-maker, and (2) that it is in principle enforceable against those under its jurisdiction
- Positive law differs from politics and policy in that it does not determine the purposes of a polity but determines what legal effect is attributed based on the fulfilment of what legal conditions. The rule of law implies that political decision-making depends on the attribution of a legal power to do so, meaning that the legal effect of primary legal norms depends on the legal effect of secondary legal norms.
- Positive law assumes the existence of a sovereign state and simultaneously constitutes and regulates that same sovereign state
- The rule of law as well as the protection of human rights depend on positive law
- Positive law is often opposed to ‘natural law’, which may refer to divine law (medieval period) or the law of reason (enlightenment period), both of which claim universal application and an objective truth-value; positive law is human-made (it is ‘posited’), depending on the social contract that defines a particular jurisdiction
- Though some authors restrict the meaning of ‘positive law’ to legislation, we use the concept to refer to all legal norms, whether enacted by a legislature or a court, whether written or unwritten, as long as they derive from the sources of law.
- Positive law should not be confused with ‘legal positivism’, which refers to a specific conception about the nature of law, its making and its validity. Recognizing the importance of positive law does not imply ‘legal positivism’.
Examples of how ‘positive law’ is used
Not taking one’s hat off in certain circumstances might be sanctioned by public disapproval, signalling the violation of a moral obligation. Such a breach of diffused expectations, however, does not amount to a violation of positive law. By contrast, an action which might be indifferent or tolerable from a moral point of view, i.e. not to stop at red lights in a desert, constitutes a violation of positive law where that is provided by a legal norm expressed into the sources of law and the effects produced by such a violation might be enforced by public authorities invested of the power to exercise public force.
It may be contrary to positive law to enter a vehicle into a park. A data-driven machine trained on thousands of pictures of vehicles might accurately classify new pictures as either representing vehicles or non-vehicles.1 Whatever the performance that the machine achieves in such task, however, the machine output does not automatically produce performative legal effects,2 in that the machine processing does not amount to positive law. To count as a legal decision, the outcome output by the machine must satisfy the set of normative requirements provided for by positive law. If the decision is disputed, the fulfilment of such requirements must be proven through the articulation of a justification which, in turn, complies with the standards of legal reasoning which distinguish legal practice.
The meaning of ‘positive law’ in terms of MoE, affordance and LPbD
Mode of Existence
An approach informed by the lenses provided by the concept of mode of existence affords to highlight how positive law comes to exist through the normative practices performed by jurists on the basis of legal text. This perspective brings to fore what it means for law to be “positive” by showing how law can achieve a distinctive kind of objectivity which is both depended on and itself productive of a specific materiality but, at the same time, cannot be accounted for through a reifying vocabulary: such objectivity is indeed the objectivity of meaning which is reached into language.
The norms expressed in positive law are not causes of behaviour, but reasons which justify certain action.
In this respect, the mode of existence of positive law differs from that of the laws which can be formalized in order to provide a causal or statistical explanation of either natural phenomena or human behaviour.3 The concept of positive law, indeed, refers to the set of legal norms which result from the sources of law. The intelligibility of such concepts depends on a set of institutional linguistic practices which constitute the locus within which normative judgments concerning the correct or incorrect application of norms can be meaningfully performed. Such normative assessment involves a vocabulary of explanation which differs from that employed with respect to phenomena governed by positive laws: the norms expressed in positive law are not causes of behaviour, but reasons which justify certain action.
At the same time, as emphasized especially by positivist jurisprudence, positive law is distinguished from other normative phenomena as, for instance, politics, religion, moral, or games.4 In this sense, the “positive” character of law has been explained with reference to the artificial, men-made character of law and by highlighting the specific features which distinguishing law as a system of norms. On one hand, in a normativist perspective,5 legal positivism has put the emphasis on the systematic hierarchical relations between legal norms and specific procedures of enactment and enforcement, determines the legal validity of a law-making act. On the other hand, in a voluntaristic perspective, the ultimate source of validity has been traced to the will of the sovereign which posits the legal order.6
Other approaches offer an understanding of the “positive character” of law which either contrasts with or rearticulates the essential elements of legal positivism. Some have openly adopted an anti-positivist stance, emphasizing the inherent limitations which distinguish enacted law7 or contrasting it with the positive character of legal orders which grow spontaneously from interaction.8 Other perspectives, on the other hand, afford to dissolve the apparent irreconcilability between such views by addressing the way in which the positive character of law is constituted in the context of legal practice. By configuring the relations between law-making power and positive law as mutually constitutive,9 such approaches shift the emphasis from the question of “who posits positive law” to the practices within which the reference to something as positive law is licensed, accepted (or contested) and produces its effects.
The reception of a legal text is a continuous process, performed by a plurality of actors in different circumstances.
Such approach to positivity enlarges the perspective from the acts through which texts are enacted to the con-texts in which they are received and appropriated as positive law. In this way, the concept of positive law is situated into a wider horizon: the reception of a text, indeed, is a continuous process which is performed by a plurality of actors in different circumstances. On the other hand, the understanding of “positivity” which emerges from such perspective does not deny the responsibility that comes with the human authorship of positive law, nor does it diminish the importance of enacted law: on the contrary, by framing the positive character of law in the light of practices performed on the basis of legal texts, it actually extends such responsibility and acknowledges how, through the acts of writing, reading, speaking law, the community of jurists plays a constitutive role in the “positivization” of law. Questions such as what constitutes a valid source of law, the correct performance of a procedure of enactment, or an authoritative precedent, or what is the scope of the binding force of a legal norm, etc., are addressed by looking at the standards of reasoning and argumentation which jurists set and enforce within the linguistic interactions informed by the common frame of reference afforded by the language of positive law.
A practice-based account of the concept of positive law emphasizes the distinctive affordances which enable the normative force of law. The concept of affordance is in this respect particularly apt to give an account of the shared understanding and agreement in judgments with respect to “what counts as positive law” which jurists achieve through their text-driven interactions. Crucially, such a shared understanding is not limited to the theoretical knowledge of the relevant concepts informing positive law, but it involves the reciprocal recognition of what amounts to their concrete application.10 Due to its linguistic character, the reaching of such agreement enables the institution of a common framework of reference which affords law to be stable without standing still.11
The language of positive law provides legal subjects with grounds for anticipating the consequences of their actions, enabling them to develop and rely on mutual expectations. Such form of certainty and predictability is qualified by the very nature of that which is considered certain or predictable, i.e., not a phenomenon that occurs according to statistical or causal laws, but an act of application of a legal norm: the grounds on the basis of which the consistency and predictability of normative action are assessed are represented by the reasons which justify such action. Did the court decide the present case in the same way it did before? Will this reading of a legal text be considered correct? Is this act correctly qualified under such norm? Answering these questions implies the capacity to detect a form of meaningful regularity which can only be grasped from a normative standpoint, that is, by making reference to the categories and vocabulary which inform positive law. As the meaning of acts, facts and norms is entrenched by their use,12 so their regularity depends on the constancy and sharedness of a certain understanding within the community of jurists.
The linguistic nature of the interactions between jurists affords the possibility of coming to an understanding.
Especially the classic common law tradition has stressed how the stability and binding force of law is enabled by jurists’ capacity to institute a common language by mastering the “artificial reason” — or better, reasoning — “and judgment of law”.13 Such abilities result from and manifest jurists’ partaking to a joint enterprise distinguished by the use of common techniques which are learnt through a training requiring “long study and experience”.14 The latter is gained through the immersion into the body of positive law: the fluency in the language of law is afforded by the critical appropriation of the schemes of interpretation guiding the past controversies and the capacity to reformulate and adapt them to the needs of the present.
As the reaching of a stable understanding of what counts as positive law affords the entrenchment of its normative force, the linguistic nature of the interactions between jurists also affords the possibility of coming to an understanding, i.e., to perform a continuous stabilization and re-articulation of legal meaning: through the exchange of arguments, the reading of the latter in the light of new contexts, the reinstatement and discussion of the similarities and dissimilarities between cases, etc., the meaning of human action and legal norms can be defined and redefined through an ever more tailored vocabulary.
Legal Protection by Design
As discussed with respect to the concept of the rule of law, the fact that positive law constitutes the medium through which government is exercised provides a safeguard against unruly and potentially arbitrary power.
In order to produce legal effects, power has to be expressed into the language of positive law and satisfy the conditions of veridiction, assertibility and felicity which govern the performance of legal speech acts. The need to justify one’s action in terms of positive law, i.e., the need to identify a valid source of power, the relations between different competences and authorities, the import of formal requirements, etc., implies the anticipation of the shared understanding which consolidates through the text-driven practices performed by jurists. Through the interplay between the anticipation of meaning and the application of legal norms, the shared repository of legal understanding informs ex ante and recursively that which can be said through the language of positive law.
Positive law provides the vocabulary necessary for envisioning the very possibility of legal protection.
As it restraints power, positive law simultaneously affords legal subjects different forms of protection. On one hand, as emphasized especially by the liberal tradition15 and by formal accounts of the rule of law,16 it safeguards a form of negative liberty, that is, it affords protection from the illegitimate interference of the State in the spheres of action which are not regulated by law and, simultaneously, it makes the exercise of legal power predictable. On the other hand, positive law lays the foundations for the enjoyment of a positive form of legal protection. Indeed, it enables legal subjects to demand that the State complies with those positive obligations whose fulfilment is essential for ensuring a comprehensive protection of subjective rights.
The language of positive law offers legal subjects the tools and techniques to claim protection either by contesting an unfavourable application of legal norms or by advancing a favourable reading of law. But, before all, positive law provides the very vocabulary which is necessary to even envision the possibility of being entitled to legal protection. Due to its linguistic nature, positive law enables a dynamic form of protection: through the role of mediation played by the community of jurists, the reading and interpretation of positive law affords to give recognition to the needs emerging in social interaction and to fashion them into a form capable of producing legal effects. Positive law both informs and is informed by the array of human interactions it aims at governing: the constitutive relation it entertains with “human affairs and conversation”17 affords to constantly enrich that which can be said and understood through the language of positive law.
P. Gowder, ‘Is Legal Cognition Computational? (When Will DeepVehicle Replace Judge Hercules?)’ in R. Whalen (ed), Computational Legal Studies. The Promise and Challenge of Data-Driven Research (Edward Elgar Publishing 2020), pp. 215-237; M.A. Livermore, ‘Rule by Rules’ in R. Whalen (ed), Computational Legal Studies. The Promise and Challenge of Data-driven Research (Edward Elgar Publishing 2020), pp. 238-264. ↩
M. Hildebrandt, ‘Law as Computation in the Era of Artificial Legal Intelligence: Speaking Law to the Power of Statistics’ (2018) 68 University of Toronto Law Journal 12. ↩
See, P. Winch, The Idea of a Social Science and Its Relation to Philosophy (Routledge & Kegan Paul 1990); H. Kelsen, Pure Theory of Law (M. Knight tr, Lawbook Exchange Ltd 2009), chapter 3. ↩
In this sense, Austin distinguished between “laws properly so called” and “positive morality”, see John Austin, The Province of Jurisprudence Determined (Cambridge University Press 1995); see also, A. Ross, On Law and Justice (The Lawbook Exchange 2007); H.L.A. Hart, The Concept of Law (Clarendon Press 1994). ↩
Kelsen (n 3). ↩
As Hobbes highlights, “[t]here must be law-makers before there were any laws”, see A. Cromartie and Q. Skinner (eds), Thomas Hobbes: Writings on Common Law and Hereditary Right: A dialogue between a philosopher and a student, of the common Laws of England. Questions relative to Hereditary right (Clarendon Press 2005), p. 34. Austin accounted for the law-making power of the judiciary, as well as the latter’s power to turn customs into positive law, as a faculty exercised under the authorization of the sovereign, see Austin (n 4). ↩
As, for instance, Coke and Blackstone, see G.J. Postema, Bentham and the Common Law Tradition (Oxford University Press 2019), pp. 15ff; or the anti-formalism movements spreading in Continental Europe at the turn of the Nineteenth century, as the German Free Law Movement (Freirechtslehre), see P. Grossi, A History of European Law, (Wiley-Blackwell, 2010), p. 119. ↩
F.A. Hayek, Law, Legislation and Liberty: A New Statement of the Liberal Principles of Justice and Political Economy (Routledge 2012); B. Leoni, Freedom and the Law (3rd edition, Liberty Fund Inc 1991). ↩
In this perspective, a common thread unites perspectives which going from the Medieval ius commune, the classic common law, historicist schools and, more recently, institutionalism. See, S. Romano, The Legal Order (Routledge 2017); N. MacCormick, Institutions of Law: An Essay in Legal Theory (Oxford University Press 2007). ↩
L. Wittgenstein, Philosophical Investigations (G.E.M. Anscombe tr, Macmillan Publishing 1953), § 242. ↩
R. Pound, Interpretations of Legal History (Cambridge University Press 1923), p. 1. ↩
N. Goodman, Fact, Fiction, and Forecast: Fourth Edition (4th Revised ed. edition, Harvard University Press 1983). ↩
E. Coke, Prohibitions Del Roy, 1607, Michaelmas Term, 5, James I, in Id., Reports, volume 12. ↩
Montesquieu (n 21), Book XI; J. Locke, Two Treatise of Government (Cambridge University Press 1988), p. 284. ↩
F.A. Hayek, Law, Legislation and Liberty: A New Statement of the Liberal Principles of Justice and Political Economy (Routledge 2012); J. Raz, The Authority of Law: Essays on Law and Morality (Oxford University Press 1979). ↩
G.J. Postema (ed), Matthew Hale: On the Law of Nature, Reason, and Common Law: Selected Jurisprudential Writings (Oxford University Press 2017), p. 193; G.J. Postema, Bentham and the Common Law Tradition (Oxford University Press 2019), p. 32. ↩