The nexus between Positive Law and Democracy

By Joan of Arc II

Democracy is a political system in which supreme power lies in a body of citizens who have the power to elect people as their representatives. Or in Abraham Lilcoln’s importal words “ of the people… for the people… by the people” And this is exactly what a novel concept of modernity i.e. Positive Law is all about in the books of modern jurisprudence.

Positive law is a man made law. It is about consituting a socio polical system where morality is to be separated from positive law. Because contemorary morality as it stands today is a bankrupt rule of the will of the aristrocracy or the previlidged class.

As it is, every individual has his/her own criteria of morality, and it is unjust to pursue the interest of a particular class.

However, if the law is based on collective moral appeal of a society, it will bring maximum happiness for a maximum number of people. A political setup will make a social contract between sovereign and subject by default.

Now let us consider Pakistan’s present political situation, where there is a lacuna between the government and the people, thereby no social contract.

Laws in Pakistan, are not made as per the will of the masses but to cater to the elite classes, namely feudal and industrialists. Hence, there is no political stability — change in govt every couple of years or so, throughout the 90s thanks to the game of ‘musical chairs’ played by the two main parties, ly ultimateculminating in martial law time and time again.

Such a democratic lagacy have bequeathed to us a “rich” history of martial law being implement once in every decade– the cycle began in the late 50s and active civil disobedience like mob attacks, vehement protests, resulting in roads being blocked and at times becoming veritable blood baths.

In a nutshell, it’s a “chaotic state” (no pun intended) of affairs. And that’s what Positivists feared the most.

A socio – political system helps in eradicating choas because it is formed by an enlightened population, and laws can only work when it is founded on the collective wisdom of all mankind.

Countries like Pakistan, Libya, Yemen, Egypt et el are prime examples of lack of utalitarianism or the will of the majority.

Without people’s mendate, organising human affairs can only result in the the world plunging into unrestrained choas.

In ‘Positive Law,’ just like in democracy, everybody is held accountable for thir own actions because every choice has consequencees due to the fact that government action is limited by and large on public endorsement.