Holland defines positive law as “a general rule of human action, taking cognizance only of external acts, enforced by a determinate authority, which authority is human, and among human authorities, is that which is paramount in a political society.”
An analysis of the above definition reveals that law is a general rule of human action. Laws, the author and upholder of which is superhuman, are not within the scope of the term law as understood here. They are within the province of quite a different science. The use of the term ‘law’ here does not express the uniformities of the physical world, but is confined to the world of human beings.
Law as a rule of human action is a general rule. A rule applicable -to a particular individual commanding has obedience is not law within the definition of Holland.
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The term law as defined by Holland is again distinguishable from morality. We have seen above that law is a general rule of human action. Such general rule of human action is again external. Law is not concerned with thoughts, motives and inner feelings as such unless they are manifested in external actions.
Law, therefore, deals with a general rule of external human action such actions which are exhibited externally. In this sense law is quite distinct from morality, which considers what a man thinks and feels along with what he does.
Then such general rules of external human action are enforced by a determinate authority. Law is thus distinguished not only from all rules which, like the principles of morality and the so-called laws of honour and of fashion, are enforced by an indeterminate authority, but also from all rules enforced by a determinate authority, which is cither, on the one hand, superhuman, or, on the other hand, politically subordinate. Such determinate authority is human, who is a sovereign political authority. Rules set by such ah authority are alone properly called laws.
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In order to emphasise the fact that laws, in the strict sense of the term, are thus authoritatively imposed, they are described as ‘positive laws.’
Hobbes also distinguishes positive law in this sense from external law by observing that positive laws are those which have not been from eternity, but have been made laws by the will of those that have had the sovereign power over others.
Holland’s approach to law is in keeping with the Auslinian tradition’ of the analytical school and the same criticisms which have been levelled against Austin’s theory of law apply with some force to Holland’s concept of law. In the first place, it is historically inaccurate to regard Jaw as commands of the sovereign. It ignores customary law.
From early times law has been obeyed as a divine command or as a custom of the land. In the second place, it ignores ethical aspect of the law and makes no reference to the end and purpose of law. The aim of law is lo secure the ends of justice, which aspect has been excluded from Holland’s definition of law. In the third place, obedience to laws cannot always be attributed to fear.
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Law is primarily just and it is obeyed in a large measure because it is right and just. And, lastly, Holland imputes the capacity to frame laws only to sovereign political authority; denies the full connotation of the term ‘law’ to not-full sovereign States. This is inaccurate.