Thursday, April 28, 2011

Private vs. Government Positive Law

Been a while, but I guess there is no point in posting when I can't think of anything to post.  To whit, I have found something I want to post, namely, regarding private positive law.

Theologians mention positive law as any laws that are made in addition to God's laws.   A better definition may be that positive law is any law created be any human for the purpose of regulation of human behavior.   (Regulation = the causing of regularity)

The most obvious instances of positive law happen to be those laws that governments make and enforce.  Laws regarding how you may run your business, what medications you may manufacture, what plant fiber you may not ingest; the list is endless and endlessly absurd when it comes to government's positive laws. (seriously, who gives a crap if I have a sharp piece of metal in my pocket, I happen to collect sharp pieces of metal.)

Private positive laws are the most useful positive laws I have come across in my life time.   Businesses tend to write out the majority of private positive laws (I think), though individuals do write their own positive laws.   Contracts, whether between businesses, individuals, or both, provide for the most common form of private positive law, because, as I defined positive law above, a contract seeks to regulate human behavior.

When a singer signs a contract to sing so many songs for so much money, that singer has voluntarily chosen to cooperate with a business.   The signing of the contract results in both the business and the individual to act in a regular manner, as the contract describes; this regularity would not occur unless all parties to the contract were voluntarily interested in acting regularly.   This is the beauty of private positive law in the form of contracts, in that no amount of enforcement or coercion is necessary, so long as the government is no involved, of course.

Another form of private positive law is that of internal business policy.   Many businesses, like Google, have a privacy policy that basically says they will not provide private information to outside sources.  The sole and tragic exception to that simple policy is when the government starts asking for private information, at which point the privacy policy general accommodates the government totally by explaining the businesses willingness to comply with the government's positive laws (my words not their's).

As you can see, private positive law tends to be helpful in regulating human behavior so long as government does not become an issue.

Government positive laws started out as dictates from chiefs and kings.   When the king wanted something, like a tribute or tax, he would declare that all in his jurisdiction shall do or be punished.   This simple reliance upon violence (punishment) to regulate human behavior (pay your taxes) is the basis of every government positive law.   The possible exception is when a law tells a department of government to do something, as a punishment is not mentioned. (Maybe the government employees know they will lose their job if they don't do as the government positive law says.)

In short, positive law regulates human behavior; government positive law regulates behavior based on violence; private positive law regulates behavior based on mutual consent.  It is therefore sad that so many theologians look to government as the sole source of positive law, which is the most disgraceful form of it; maybe more people should be taught economics rather than merely the three R's.

I hope to expound more on private positive law in the future, as it shows how humans can live in tranquility without recourse to the wickedness of government.