What makes a law a law?Since the beginning of humanity, people have lived in communities. The reason for this is the realization by people that communal living was more advantageous than single living. Being a member of a community was and in many was still is essential for a persons survival. Being amongst other human beings allows us to share thoughts and skills, develop new ideas and technologies, better protect themselves and their families from predators, the elements, other people, and allows for the weaker, such as children, the elderly and the ill to be protected within the community. Soon after the realization that communal living was essential for survival another realization dawned on people, promises made to each other on issues of who is entitled to what and what should and should not be done were too fragile without having some type of governing body in place to enforce rules made by members of the community. In order to maintain peace within a community it was realized a governing body was needed. This gave birth to what is today known as positive law.
Positive law can be put into three different categories which evolved over time. The first is known as primitive law. Primitive law was born with the realization by human beings that, though communal living was favorable to single living, there was a lack of civil order. In order to fix this, people instituted a set of principles which were used to resolve civil disputes. One of the earliest sets of rules we have as an example of primitive law today are Hammurabi’s code. Following primitive law came archaic law which dominated civil society from about the time of Rome. Archaic law can be put into two categories: the first are codes of substance. This sets forth penalties for violations of the laws put in place in the society. The second category is known as codes of procedure. This set forth how a person was to be dealt with upon violating the law. Archaic law is responsible for the institution of administration and order in the court system. The third version of positive law is matured law. Matured law is seen as the father of Modern law, the system of law making we use today. There are three prongs of positive law: the first is the law of is. This describes the social phenomenon, which is what actually exists, such as crime. What follows the law of is is that of ought, or what should be. This is the law of man and proscribes laws against certain conduct such as rape and murder. The third prong is law as form. This is the law we put in effect through legal statutes. These statutes do not eliminate the conduct in which we believe should be prohibited; these statutes indicate we believe the conduct will occur but hope the statute will act as a deterrent from the behavior by putting into place punishments for the breach of the statute. This also grants legal officials the power to enforce the laws put on the book.
So where does positive law come from? Positive law as I have just discussed is a set of legal rules that are binding on all people living in a state. The laws are made by the governing body through socially accepted norms and morals. But who is to say what ought to be and what conduct should be prohibited and how are these conclusions reached? This has been debated for as long as civil society existed. From this debate came the theory of natural law. Natural law is the belief that a higher being, such as God or nature has built into the world a set of principles which human beings are to obey. These laws are to be found through human reasoning. This discussion though brief should be of particular interest to those seeking to obtain law degrees, however, I think it is important for all of you reading this to reflect upon what has here been written. After all as a member of civil society you too are bound by the rules put on the books. Haven’t you ever stopped and wondered why you have to obey them and who decided these practices are restricted?