Positive and Negative Terms
Chapter Nineteen
Syllabus topic 1.7, "positive and negative terms"
Pages 92 to 95 of 334
In one line
A positive term names the presence of an attribute; a negative term names its absence.
In the wording a student can write in an examination: a positive term signifies the possession of a quality, while a negative term signifies the want of it. The negative of a term is formed by prefixing "non" to it, and the two together exhaust the universe of discourse.
The division
Positive: "mortal", "competent", "registered", "lawful".
Negative: "non-mortal", "incompetent", "unregistered", "unlawful".
The test is not the presence of a prefix but what the term asserts. "Blind" carries no negative prefix and is a negative term, because it means wanting the power of sight. "Immortal" carries a negative prefix and is arguably positive, because it names a definite condition and not a mere absence. The prefix is a clue and not the criterion.
A third class is sometimes recognised. Privative terms name the absence of a quality that the thing in question would normally have: "blind", "deaf", "illiterate", "dumb". "Non-seeing" is true of a stone; "blind" is not, because a stone was never the sort of thing that sees. Privative terms therefore carry an implication that pure negatives do not, and legislative language uses them carefully for that reason.
The universe of discourse
The negative of a term is not everything in the world that lacks the attribute. It is everything within the field being discussed that lacks it.
If the discussion is about human beings, the negative of "adult" is every human being who is not an adult. It does not include tables, ideas or Wednesdays. The field being spoken of is called the universe of discourse, and it has to be settled before a negative term means anything definite.
This is not a philosopher's refinement. It is exactly what a statute does when it says an Act applies to establishments of a certain kind: it fixes a universe, and within that universe the negative term "establishments not covered by section 3" has a definite membership. Outside it, the expression would be useless.
Positive and negative terms together exhaust their universe. Everything in it is either A or non-A, by the law of excluded middle, and nothing is both, by the law of contradiction. That is why division by dichotomy, at sequence 650, can never be wrong.
Where the law prefers each
Statutes use negative terms deliberately, and in three recognisable situations.
To catch everything not enumerated. "Any person other than a member" and "premises not being a factory" are drafted negatively because the drafter wants the residue and cannot list it.
To impose a prohibition. "No court shall entertain", "no suit shall lie", "not being a registered document". Negative wording in a statute is the standard signal of a mandatory provision, and the courts have long treated it as such.
Positive and Negative Terms
To shift the practical burden. A rule that a thing may be done only if a condition is satisfied throws the work onto whoever asserts the condition; a rule that it may be done unless a condition exists throws the work the other way. The difference is a positive or a negative formulation of the same test.
There is a matching danger, and it is a drafting fault rather than a logical one. A double negative in a statute is very hard to read. "No person shall be disqualified unless he has not complied with sub-section (2)" takes several readings to unpick, and provisions of this shape have generated real litigation.
A worked example
Section 11 of the Indian Contract Act 1872 provides that every person is competent to contract who is of the age of majority according to the law to which he is subject, who is of sound mind, and who is not disqualified from contracting by any law to which he is subject.
Notice the three attributes. Two are stated positively, majority and soundness of mind. The third is stated negatively, not disqualified by any law.
Why the third is negative. Because the disqualifications are scattered across other statutes and cannot be listed in this one. A negative term is the only way to capture a class whose members are fixed elsewhere and may change.
Now form the negative of the whole. "Incompetent to contract" is the negative of "competent to contract", and it applies within the universe of persons. It is satisfied by failing any one of the three attributes, because the attributes are joined conjunctively. This is a small illustration of a general rule: the negative of a conjunction is a disjunction of negatives, which Module II states formally at sequence 350.
And notice the privative point. A minor is not "of unsound mind"; he is incompetent for a different reason. Using "unsound mind" for a minor would be using a privative term outside its proper universe, and it would misdescribe the ground of incompetence.
Distinctions that carry marks
| Positive term | Negative term | |
|---|---|---|
| Signifies | Presence of an attribute | Absence of it |
| Example | competent, registered | incompetent, unregistered |
| Test | What the term asserts, not the prefix | The same |
| Negative | Privative | |
|---|---|---|
| Means | Simply lacking the attribute | Lacking an attribute the thing would normally have |
| True of a stone | "non-seeing", yes | "blind", no |
| Legal examples | not registered, other than a member | illiterate, of unsound mind |
What this does not mean
A prefix does not make a term negative. "Blind" is negative without one and "immortal" is positive with one. Look at what is asserted.
Positive and Negative Terms
The negative term is not everything else in existence. It is everything else in the universe of discourse, and the universe must be fixed first.
Negative wording in a statute is not a drafting failure. It is the standard way of expressing a prohibition and of catching an unlistable residue.
Quick revision
Positive: presence of an attribute. Negative: absence of it.
The prefix is not the test. "Blind" is negative; "immortal" is positive.
Privative: absence of an attribute normally possessed. Not true of things that never had it.
Universe of discourse must be fixed before a negative term has definite members.
Together they exhaust the universe, by excluded middle, and overlap nowhere, by contradiction. This is the basis of dichotomy.
In statutes: negatives catch the unlistable residue, express prohibitions, and shift the practical burden. Double negatives are a known source of litigation.
Forward link: obversion at sequence 460 turns a positive proposition into a negative one by negating the predicate term, and it cannot be done without this chapter.
Test yourself
1. Distinguish positive from negative terms and state the correct test.
A positive term signifies that a thing possesses an attribute; a negative term signifies that it lacks one. The test is what the term asserts and not whether it carries a negative prefix. "Blind" has no prefix and is negative because it means wanting sight, while "immortal" has one and is best treated as positive because it names a definite condition rather than a bare absence.
2. What is a privative term?
A term signifying the absence of an attribute which the thing in question would in the ordinary course possess. "Blind", "deaf" and "illiterate" are privative: they can be predicated only of things capable of sight, hearing or literacy. A stone is non-seeing but not blind. Privative terms therefore carry an implication that pure negatives lack, and legal drafting relies on that implication.
3. Why must the universe of discourse be fixed before a negative term is used?
Because the negative of a term is everything within the field under discussion that lacks the attribute, not everything in existence. If the discussion is about persons, "non-adult" covers persons who are not adults and not stones or ideas. A statute performs this fixing when it states the establishments, persons or transactions to which it applies, and within that field its negative expressions have a definite membership.
4. Give three reasons a statute uses negative wording.
To catch a residue that cannot be enumerated, as with "any person other than a member". To impose a prohibition, negative language such as "no suit shall lie" being the standard signal of a mandatory provision. And to place the practical burden on one party rather than the other, since a rule permitting an act only if a condition is met operates differently from one permitting it unless a condition exists.
Positive and Negative Terms
5. Why do positive and negative terms together exhaust their universe?
Because of the two laws of thought. The law of excluded middle guarantees that everything in the universe of discourse either has the attribute or lacks it, so nothing falls outside the pair. The law of contradiction guarantees that nothing both has and lacks it, so nothing falls into both. Division by dichotomy relies on exactly this and is therefore always exhaustive and always exclusive.
6. Form the negative of "competent to contract" under section 11 of the Indian Contract Act 1872, and say what satisfies it.
The negative is "incompetent to contract", within the universe of persons. Since section 11 requires majority, soundness of mind and freedom from disqualification, all three together, the negative is satisfied by the failure of any one of them: a person may be incompetent by being a minor, or by being of unsound mind, or by being disqualified by some other law. The negative of a conjunction of conditions is a disjunction of their negatives.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.