REDEFINING THE CONCEPT OF LAW; “ POSITIVE LAW TO LAW POSITIVE”
Sreejith Cherote, Advocate, Calicut.
The Word positive law in legal sense has only one popular meaning i.e. the offspring of Austinanian thought. The theory that the law is the command of sovereign enfor¬ced by him on his subjects and met with sanction if dis¬obeyed. Apart from this popular meaning attributed to the term "Positive Law" by successive legal luminaries and juristic genius, there is something which is very much positive about law, which has seldom been identified, sug¬gested or recognized. Positive in the sense, that which is something fruitful, something inspiring, something encouraging human action and conduct.
Our view of law is only from its negative angle that, which restricts, forbids, punishes or imposes conditions. We all know that the origin of law is out of practical necessity. It got its negative shape and restrictive phase in the period of human history where the creative ability of human brain was less developed when humans were driven by animalistic instinct, which created sense of fear for each other. The prey feeling subconsciously copied from the animals became the predominant part of the flow chart of human brain. The element of fear of each other was predominant just like what we see in un-domesticated animals and birds. There was always a sense of fear of each other; stronger was looked upon with fear and suspicion.
The lack of spiritual energy and inquisitorial out look made our brain sub-servant to this natural programme. Natural challenges of course, had in course of time helped to overcome this invisible code of human conduct of acquired behavior and characteristic semblance. This was the period when human worth lie buried in the depth of unfathomable ignorance. Human ignorance was the large-scale manufacturers of imitative fear, which has corroborated and camouflaged the walls separating human worth from the eyes of our minds.
Fear is a state of restlessness. Our mind is restless because it is in constant search for a station, rather a secured one. But, human mind is more advanced in the sense that unlike that of animals it wants to be free of eternal individual, vigilance, a laborious activity confining the creative scope of mind. The desire for freedom from this bondage was a self-induced challenge; response came in the form of co-operation for a desired goal of eliminating this fearful existence.
Co-Operation out of coercion, natural end manmade was the beginning of an idea called order. Order became rule, rule became Law. Human definition of order when expressed in words became rule and law. Rules were nece¬ssary to maintain order. The purpose behind these definitions was to tag some conduct as contrary to the concept of order. The authors of these actions violating definitions were confronted with a set of situations, so as to produce an element of fear for tail¬oring his mind and action to that of a defined and desired conduct. The cost for obedience to these rules was freedom. By sacrificing individual freedom and pooling it in system called rule, was the beginning of law. In this sense Law is self-imposed. Sacrificed individual freedom when pooled together gave a magnified reflection in the form of a body of rules. These restrictions were justified by the fact of a noble object of which it intended to achieve.
Human mind and its feelings is a mystery. We have only circumstantial evidence of its working. The unresolved puzzle of analyzing and realizing the Influence which ignites a human conduct has produced varying results. Results vary for a million reasons. Hence there cannot be a universal or eternal law for humans. That is why we have separate law for, group, society, state, country and continent.
As said earlier, Law was an invention for restricting individual excess. For controlling individual excess, there should be demarcation between excess and non-excess, conduct. These demarcation required definition, definition in turn gave a prospective idea of an expected behavior. Hence, Law essentially evolved carried with it a primitive presumption of an inevitable evil in human mind. The definition of excess had in mind the idea of regimentation of conduct. It was the beginning of institutionalization of thought and action. The intention was to restrict human action and instinct to permissive limits so that it may not encroach into the natural right of others.
Regimentation of human conduct based on demarcation of permissible limits was an invention of law, based on a universal presumption of evil human mind, for the purpose of establishing peace in society. The law developed by our ancestors for restricting presumed evil in human nature, in course of time developed into many branches and sub branches without diluting or adulterating the essence of its Character.
In the present day society, essence of law remains the same. While we humans have progressed and developed in every human field, the nucleus of law has remained unaffected. This situation is against the basic philosophy of evolu¬tion. If we, humans have shown progress in conquering ignorance, it is mandatory that there should be change in the basic, concept upon which edifice of law was built to serve.
The Myopia of human ignorance has been satisfactorily removed by intelligent operations. We have got the glimpse of human worth lying dormant inside. This progress has its practical reflection in the field of welfare legislations purposefully made for the felt necessities of time. A plethora of them to inspire and instigate our worth and potential. The change in the concept of liberty, human rights and natural rights are tangible evidence of the subconscious progress of our mind and it is high time that we should give express recognition to this subcon¬scious change.
The recognition of human potential and the desire to create circumstances for its development on a relative basis had pressed the necessity for a new concept in the process of law making. This modern thought about law has more affinity towards the concept of anarchy in its true sense. The present law should be given a face-lift, so as to give it an appeal to the finer spirit inside humans. For this the law should forsake its restrictive role and adopt an attitude of an inspiring coach, who shall instigate his pupil to exhibit and perform the best out of them.
This idea off law is very kin to a Utopian concept. But, it is also close to the present day reality. Today word liberty has attained a wider meaning. We no longer want an authority, which is imposed from external. The idea of law has to shift from obedience, which is enforced by exter¬nal pressure, to obedience, which is internally inspired. This concept can be practically utilized by enacting laws which will reward, recognize and acknowledge virtues acts of citizens, thereby inspiring the nobler feelings inside us without an external physical coercion. For example; if there is a law which recognizes and rewards a person who has hospitalized an injured person in a Road Traffic accident, it will help to encourage the attitude of citizens to voluntarily do good deeds and refrain from doing illegal and immoral acts without an external physical coercion. In this case, appeal to do a good acts and to refrain from doing an evil is from inside although it is aroused by an external source.
Obedience to law is not because of any positive sanction alone. Obedience can also be traced in emotions that have evolved from the basic feelings of human, such as pity, compassion honor, etc. Here, disobedience is not met with the wrath of any positive action or sanction. It only creates in the internet of human minds, an impression which is defined by the Law as something which is very much against the interest of the society and such impression creates a subconscious adherence to the general notion of the society which is collectively concealed. Here, there is no sanction. You are commanding to yourself to do a virtues deed or to show obedience to a particular feelings, that is collectively concealed in human minds. The inducement to do it is the, recognition by Law.
This concept of Law can be introduced in every legal field like Labour Law, Tax Law, Civil Law, etc. This concept is also perfectly in tune with the Reformatory theory in criminal Law. There should be positive legislation to rehabilitate and reward convicted criminals who had shown progress in foregoing their criminal activity. Such legislation will help them to realize the inward worth and potential and will also inspire their thought and action producing favorable results.
We should promote our law from its technical field to a creative sphere. The pressure from without should give way to a spring from within. Law should take the role of a snake charmer who by the music of his pipe should slowly arouse the nobler and moral feelings inside individuals.
In an era where self-conscience of individual seldom likes interference in his life from any corner, law should be designed in a way that the urge for obedience should come vo-luntarily. The voluntarily obedience to law induced by an array of positive advantages should be the basis of modern law. Law should become positive not by the power of the commander, but by the nature of its positivity and this alone Can be the true meaning of a positive law.
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