Positive Law Principles

‘Positive law’ means man-made law, created by governments and responsive to the needs of the state. However, many theorists believe that the positive laws should all be in conformity with the ‘higher’ principles of natural law.

Legal positivism denies the existence of natural law and accepts only the justice implied in the law of the state: it says that you can’t determine the law by looking for underlying rational or spiritual processes. The law is seen as a construction of the general will of the people of a state, and cannot be wrong, because a whole people can do no wrong in creating their own laws for their own state. Rights in positive law are freedoms or protections which are written down in statutes and legally enforceable.

This is no mere talking-point. For example, in Britain in 2006, the Al Qaeda terrorist campaign pushed the government into the making of laws that clearly threaten what many people consider their natural law rights of movement around the country. Other examples we have already mentioned (in Unit 1) include the Commonwealth choosing to sanction South Africa, albeit unevenly, so that it was forced to quit the organisation in 1961. Also, in 2002, Zimbabwe was suspended for a year from the Councils of the Commonwealth after the critical report by the Commonwealth Observer Group studying the presidential election. Both states insisted that, while their laws did threaten certain natural law freedoms, those laws were necessary for the well-being of the state i.e. that they were positive law principles.