Chapter 3: Positive law and sovereign authority
In the previous chapter I dealt with the ultimate basis of a legal order: justice in political agency. I characterised the idea of justice and the concept of law in general terms, derived from the opposite principles governing social relationships. I showed how the two may be captured in one formula: justice is ‘the politics of openness’, i.e. the ability of a polity to acknowledge unconditionally what counts against its self- proclaimed identity without being coerced to do so. Law we may see as the institutionalisation of that acknowledgement. Therefore we should appreciate that it is governed by the double bind of proclaiming the identity of the polity while at the same time questioning it. In the remainder of this book I will show how this account allows us to understand three major ways in which law appears in society: as a phenomenon that is authoritatively set (in ways yet to be specified); as an object of (scholarly) knowledge; and as a practice of decision-making in compliance with rules. The present chapter aims at unravelling the first of these modes of appearance: law is always set, ‘posited’, or ‘positive’. What does that mean? And which implications, which presuppositions, which consequences, are entailed by this feature? Do they allow us to reverse the statement and say that positive law is law solely by virtue of its being positive?
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