Gavin Howe
The positive law tradition of constitutional development refers to the idea that a constitution should define and delimit the powers of authorities, thereby securing fundamental rights for persons or groups. Positive law, in this context, refers to the law that is actually enforced in a community, as opposed to natural law, which is a set of universal principles and rules that govern moral human conduct. The concept of positive law is deeply rooted in Western political philosophy, with Greek philosophers arguing that positive law must reflect the principles of a superior, ideal natural law. The development and interpretation of a constitution are influenced by the political community's evolving understanding of its principles, resulting in a living constitutionalism that goes beyond the explicit text and decisions formally adopted.
| Characteristics | Values |
|---|---|
| Positive law is the law actually enforced in a community | Positive law |
| Positive law is enacted by a duly authorized legislature | Statutes |
| Positive law is distinguishable from natural law | Natural law |
| Positive law is enacted as a statute | Positive law title |
| Positive law codification bill is introduced in Congress | Congress |
| Positive law includes explicit meta-norms on the creation, change, adjudication, and enforcement of primary rules | Legal orders |
| Positive law includes norms that impose duties or refrain from certain actions | Norms |
| Positive law includes secondary rules that determine legal powers, procedures, and legal personalities | Legal powers |
| Positive law includes general principles that future interpreters must constructively interpret | General principles |
| Positive law includes more than explicit text or decisions made in accordance with accepted procedures | Written constitutions |
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What You'll Learn
Positive law vs. natural law
Positive law, also known as man-made or enacted law, is derived from human authority, such as legislation, constitutions, and legal systems established by governments or other governing bodies. Positive law is based on human-constructed legal systems, and its legitimacy comes from authoritative human institutions. It is often considered morally neutral, and its validity is determined by its source rather than its inherent moral quality. Examples of positive law include traffic regulations, tax laws, and criminal codes.
Positive law typically consists of enacted law, such as codes, statutes, and regulations that are applied and enforced in courts. In the context of the United States Code, a positive law title of the Code refers to a title that has been enacted as a statute. To enact a positive law title, a bill is introduced in Congress to repeal existing laws on a subject and restate them in a new form. Positive law, in this context, is distinguishable from natural law, which is not created or enacted by human beings.
Natural law, on the other hand, is rooted in moral principles derived from nature and reason. It posits the existence of a higher, universal law that is inherent in nature and accessible through rational analysis. This law is considered pre-existing and independent of human-made legal systems. Natural law theorists argue that certain moral principles or fundamental rights are part of a higher, natural order, transcending positive laws created by governments. Natural law often has a strong moral foundation, asserting that laws should reflect ethical principles, and an unjust law is not a true law.
The relationship between natural law and positive law has been a subject of ongoing debate in jurisprudence. While positive law focuses on laws created by human authorities, natural law emphasises universal, moral principles. Positive law can change over time based on legislative decisions, while natural law is relatively stable and enduring, reflecting timeless principles.
The concept of positive law is relevant to the idea of a higher law in constitutional development. Constitutions define the authorities endowed with powers and may also delimit those powers to secure fundamental rights. The notion of limiting state powers is deeply rooted in Western political philosophy, with Greek philosophers advocating for positive law to reflect the principles of a superior, ideal law known as natural law. Later, Church Fathers and Scholastic theologians held that positive law is binding only if it does not conflict with divine law, reflecting the influence of natural law thinking on constitutional development.
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The role of the state
The State as a Legal Person
In international law, states are considered legal persons, akin to natural persons in civil society. This means that states have legal rights and obligations, and they are subject to international law, although international law is not considered positive law in the strict sense as there is no higher authority to enforce it.
The State as a Legislator
The state plays a crucial role in enacting and enforcing positive law. Positive law refers to the codes, statutes, and regulations applied and enforced by the courts and enacted by a duly authorized legislature. This is in contrast to natural law, which refers to universal principles and rules that govern moral human conduct and are discovered through rational analysis.
The State and Constitutional Development
The state is responsible for developing and maintaining a constitution, which serves as the fundamental body of rules that govern the state's institutions. The constitution may define the authorities endowed with powers and delimit those powers to secure fundamental rights for persons or groups. This idea of limiting state power is deeply rooted in Western political philosophy and can be traced back to Greek philosophers and the concept of natural law.
The State and Scientific and Technological Advancement
Modern governments, including Thomas Jefferson's drafting of the first Patent Act in the United States, have turned to science and technology to discipline citizens and secure their assent to state rule. States have used projects in vaccine development, space exploration, and military advancements to demonstrate their effectiveness and gain public support.
The State and Social Practices
Legal norms, including positive law, emerge from actual social practices within a particular collectivity. The state, as a representative of the political community, shapes and is shaped by these social practices, which in turn influence the development and interpretation of the constitution.
The State and Constitutional Interpretation
The state, through its judicial system, interprets the constitution's abstract rights provisions. This interpretation process is similar to how judges develop common-law notions. While precedent and past practices are important, constitutional interpretation must also accommodate previous attempts to interpret and apply the abstract rights provisions, creating constitutional precedents.
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The limits of government power
The idea that there should be limits on the powers of the state is deeply rooted in Western political philosophy. Positive law, or the law actually enforced in a community, should reflect the principles of a superior, ideal law, known as natural law. This concept of natural law is based on the belief that there is a set of universal principles and rules that govern moral human conduct. It is argued that these principles are inherent in human nature and belong in every legal system.
In the context of constitutional development, the positive law tradition recognises that a constitution may do more than define the authorities endowed with powers. It may also delimit those powers to secure fundamental rights for persons or groups. This is where the concept of higher law comes into play, taking precedence over all other laws and serving as a limit to government power.
The English philosopher John Locke (1632-1704) was an early proponent of the theory of natural law, which is based on the "inalienable rights" of individuals. Locke and his followers asserted that every human being possesses certain rights, such as the right to worship according to one's conscience, to express opinions publicly, to acquire and possess property, and to be protected against unfair punishment and criminal procedures. These rights, they argued, are inherent and cannot be taken away by governments because they did not originate from governments.
Constitutional scholars also recognise that there is more to a constitution than just constitutional law. For example, Dicey proposed that the British constitutional system contains constitutional conventions that effectively limit government power, even in the absence of legal limitations. These conventions are social rules that arise within the practices of the political community and impose important, non-legal limits on government powers.
In summary, the positive law tradition of constitutional development acknowledges the importance of limiting government power through various means, including the recognition of natural law, the delineation of powers in a constitution, and the existence of constitutional conventions that impose non-legal limits. These concepts work together to safeguard the rights of individuals and groups within a political community.
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The development of general principles
The idea of positive law has a long history in Western political philosophy. Positive law refers to the law that is actually enforced in a community. It is distinct from natural law, which is a set of universal principles and rules that govern moral human conduct and are discovered through rational analysis.
Constitutions play a crucial role in defining and delimiting the powers of authorities, ensuring the protection of fundamental rights. They are considered the fundamental body of rules that govern a political community and every state operates according to such a set of rules. The interpretation of a constitution's abstract rights provisions is an ongoing process, similar to how judges develop common-law notions. This interpretation is influenced by the political community's evolving understanding of the underlying principles, resulting in the development and improvement of the constitution over time.
Constitutional scholars argue that constitutions consist not only of constitutional law but also of constitutional conventions and social rules that impose important limits on government powers. These unwritten rules and principles, which emerge from the practices of the political community, contribute to the development of general principles within the positive law tradition.
The positive law tradition, in its broader sense, includes enacted law such as codes, statutes, and regulations applied and enforced by courts. In the context of the United States Code, the term "positive law" has a specific meaning, referring to statutes enacted by a duly authorized legislature. The distinction between positive law and natural law is important to understand, as natural law is seen as a higher law that takes precedence, with its principles of morality and justice.
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The role of precedent
Positive law is a broad term that generally refers to enacted law—the codes, statutes, and regulations applied and enforced in courts. It is distinguished from natural law, which is based on universal principles and rules that govern moral human conduct and are discovered through rational analysis. Positive law, in the context of constitutional development, includes explicit rules and decisions found in statute books, judicial decisions, and written constitutions.
The interpretation of a constitution's abstract rights provisions is a dynamic process that evolves as the political community's understanding of its principles develops. This process involves judges interpreting and applying these abstract rights, creating precedents that guide future decisions. According to Strauss, the U.S. constitutional system has become akin to a common law system, where precedent and past practices hold significant weight alongside the written Constitution.
Precedent plays a crucial role in shaping the development of constitutional law. Interpretive decisions made by judges serve as constitutional precedents, influencing how abstract rights provisions are understood and applied in future cases. This process of interpretation and re-interpretation allows the constitution to adapt to changing social and political contexts, ensuring its relevance and effectiveness over time.
In conclusion, the role of precedent in the positive law tradition of constitutional development is essential for maintaining a dynamic and adaptable legal system. By interpreting and applying abstract rights, judges create precedents that guide future decisions, ensuring that the law remains responsive to the needs and values of the political community it serves. This process of constitutional interpretation and development through precedent plays a pivotal role in the positive law tradition.
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Frequently asked questions
Positive law is law that has been enacted by a duly authorized legislature.
Natural law is a set of universal principles and rules that govern moral human conduct. It is thought to be the pre-existing law of nature, which humans can discover through rational analysis. Positive law, on the other hand, refers to the codes, statutes, and regulations that are applied and enforced in courts.
Positive law is a crucial element of a community's legal system, including its constitutional law. It includes explicit rules and decisions adopted or made in accordance with accepted procedures, often found in statute books, judicial decisions, and written constitutions.
The positive law tradition recognizes the state as a legal person in international law, with rights and duties similar to those of a natural person in civil society. However, international law is not positive law in the strict sense as there is no higher authority to enforce it.
Positive law relies on social practices for its existence. Without a supporting social practice, positive law ceases to exist. It is also limited in its ability to address issues of moral conduct, which are primarily governed by natural law.
