The perils of positivist thinking in public law

Abstract

In this article, Dr Tonio Borg reviews episodes and trends in the interpretation of our constitutional law that are underscored by the positivist method, highlighting the main dangers this developing approach poses in that field. The rest of the article can be found in Id-Dritt XXX. Introduction: The positivist approach to legal interpretation is based on a particular philosophical idea of law; namely, that law is a command by a superior to an inferior in the interest of society, a strict application of the law is a must and no further interpretation is necessary except the clear wording of the law. Naturally, this approach, laudable though it might seem, can create problems. Laws are created in a contest, historical, social or political. The law drafters cannot create perfect legislation, leading to loopholes and unclear provisions. But, above all, the reasonable interpretation of statutory provisions is necessary in order to prevent unreasonable consequences or conclusions. [excerpt from the Introduction]