The Two Theories of Law

The Two Theories of Law

All history of legal progression, reformation and rejection has been influenced largely by the sources of such laws. At some point during the inception of civilisation when mankind could identify the difference between ‘right’ and ‘wrong’, ‘good’ and ‘bad’. The author of these reckoning relied upon personal and subjective revelations by a supernatural entity. This was the birth of morality from the womb of religion. The function to tell right from wrong entered into an incessant conflict during the clash of civilization, tribes were exposed to different tribes who had very little in common culturally, this clash eventually led to the clash of morality (the clash between ideal of right and wrong). The right for one turned out to be wrong for another and a general consensus could not be met. During this time the role of Monarch was much more broad and powerful giving birth to the essence of the hegemony of the state over its subjects. The monarch or the king was seen as the ‘Leviathan[1] and was advised by the priest or the clergy in matters of morality which was thereby imposed by the monarch on the subjects, this process of imposition was the first understanding of “legislation” or the law making.  The process by which such laws were made came to be known later as The natural Theory of Law which implies that morality was precursor to such law and sources of such law was (i) religious scriptures (ii) laws of nature. The defining feature of natural law theory was the association of morality and law.

As social evolution took a turn at and the human mind was exposed to the brilliant utility of the scientific method and the value of reason and rationality, it inevitably started to question the authority and utility of religious doctrines as the source for morality and law. It became abundantly clear to man that certain principles and customs were unfounded and needed replacement on the foundation set by reason and intellect. This was also coupled with the fact that the traditional monarch’s centre of power had been dismantled and subjects were gaining more and more power in the form of information and skills developed by revolutionized education and technology, this is characterised by the term ‘Enlightenment’ in western thought. The monarch yielded and was replaced with system called the “State” with features like ‘the separation of power’ and a ‘Constitution’ .This dialectic of intellectual revolution and political liberation resulted in a dissociation of morality and law and the definition of law changed from being right or wrong to command of a sovereign which is either valid or invalid and free of subjective morality, values and ideals. This was the birth of Positive Law. It proposed that law has nothing to do with being right or wrong, just or unjust and moral or immoral, it was just a command of a sovereign and this was the only test of its validity, in this way there was a severance between law which was public in nature and morality which was subjective in nature. The state as a functionary was concerned with making laws on the basis of the principle of utilitarianism- “the greatest good for the greatest number.”

Positive law has found its justifiable place in jurisprudence and legal theory. Academicians like Bentham, Austin and H.L.A Hart have used the philosophical ideas from logical positivist to add to the theory of positive law. They gave precedence to analysis, logic and language in determining the scope and function of law. Much of what we see today in the form of substantive and procedural law has been inspired by legal positivism. The style of drafting and precision of presentation owes it to positivism. The major impact of legal positivism is to rule out unfounded morality as a part of law and bring about precision in legal thinking. it provided us with clear, definite and scientific terminology, it fulfilled the objective of “clearing the heads and untying knots[2]. It deliberately excluded all external considerations which fall outside the scope of law. Julius Stone observes: “Analytical jurisprudence as a study of logical relations within the law serves a useful purpose. Its main tasks are to deter and define the terms actually employed.”[3] The terms like intelligible differentia used in reference to Article 14 of the Constitution of India is an example of positive law making because it means nothing more or nothing less than what is posited by the lawmaker (in this case a Judge). Other terms like office of profit, powers of the President and public order are all examples of positive law making.

Positive law has been found inefficient in certain respects such as a total disregard of public morality and a dissociation from being right or wrong which may inevitably lead to the public questioning the veracity and authenticity of such a law. As a cold and calculative theory of law it is often accused of giving the state or the sovereign undue authority to impose laws which are unjust. As Mahatma Gandhi said, “There are just laws and there are unjust laws, just like there are just men and unjust men.” Positive law by distancing itself from ideals of justice, equality and liberty has attracted disobedience, both civil and violent.

[1] Thomas Hobbes’ metaphor for the Monarch

[2] Austin

[3] The Province and function of law, pg. 52