Exclusion and the Identity of Law

Law is traditionally analysed as a positive phenomenon, meaning that it is constructed and laid down by the institutions within a given society and that it has an empirical dimension. The concept of positive law, or of rules and doctrines which have an affirmative empirical existence and which are posited by a lawmaking institution, reflects this preoccupation with the substance and reality of law. Parliaments, courts, law firms, public offices, law libraries and the internet are packed with the positive stuff of law: it seems endlessly to reproduce and permeate all dimensions of our social existences. Law appears to be everywhere we look, as Kafka’s painter, Titorelli, observes: ‘There are Law Court offices in almost every attic, why should this be an exception?’ Everywhere, law has a material presence, an undeniable quality of being which cannot be ignored. Thus, the identity of law (by which I mean its conceptual form and its everyday materialisations) seems to flow from law’s positivity: as an entity, law includes all existent rules, principles, institutions and decisions. The positivity of law can therefore be seen as consisting of three dimensions: first, law is a human creation; second, it has material form; and, third, its conceptual and practical identity is based upon the existing forms of legal positivity.