Concept & Positivism and Their Application of Making Rules in the WTO

Abstract

The question anybody could ask but rarely asked is – could positivism be applied in making laws? This question is fundamental because most of the positivist jurists have either left investigating this issue or have made only an impressionistic investigation. As a result, positivism mainly engages in explicating the nature or concept of rules, i. e. nature or concept of rules that are posited or manufactured. Further, it engages in analyzing the issue that what role should the judges play when the posited rules contain open texture? Within the positivist tradition alone, there is no uniformity in addressing these issues, consequently positivism has got a number of variations. On top of that the most persistent question is that why positivist jurists kept from analyzing the contents of rules at the stage of manufacturing? In other words, does positivism provide any methodology to settle the contents of rules while manufacturing or positing them? This paper revisits positivism with these questions in the context of making rules in the World Trade Organization (WTO) and explains that this reticence demands engagement of positivism in providing methodology of manufacturing contents of rules. This paper makes a modest attempt to get positivism also engaged in the domain of manufacturing rules.

Keywords: Concept, Positivism, Making Rules, WTO