Positive law

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Positive law (lat. ius positum) is the term generally used to describe man-made laws which oblige or specify an action. It also describes the establishment of specific rights for an individual or group. Etymologically, the name derives from the verb to posit.

The concept of positive law is distinct from "natural law", which comprises inherent rights, conferred not by act of legislation but by "God, nature or reason."[1] Positive law is also described as the law that applies at a certain time (present or past) at a certain place, consisting of statutory law, and case law as far as it is binding. More specifically, positive law may be characterized as "[l]aw actually and specifically enacted or adopted by proper authority for the government of an organized jural society."[2]

lex humana versus lex posita[edit]





Legal positivism[edit]

This term is also sometimes used to refer to the legal philosophy legal positivism, as distinct from the schools of natural law and legal realism. In this sense, the term is often used in relation to the United States Code, portions of which restate Acts of Congress (i.e., positive law), while other portions have themselves been enacted and are thus positive law.[citation needed]

With respect to the broader sense, various philosophers have put forward theories contrasting the value of positive law relative to natural law. The normative theory of law, as put forth by the Brno school, gave pre-eminence to positive law because of its rational nature. Classical liberal and libertarian philosophers usually favor natural law over legal positivism. Positive law, to French philosopher Jean-Jacques Rousseau, was freedom from internal obstacles.[citation needed]

See also[edit]


What supports what[edit]

  1. ^ Kelsen 2007, p. 392.
  2. ^ Black 1979.
  3. ^ a b c Flannery 2001, p. 73.
  4. ^ Voegelin 1997, p. 227–228.
  5. ^ a b c Murphy 2005, p. 214.
  6. ^ "Google Translate". Retrieved 19 June 2012. 
  7. ^ Heckel, Heckel & Krodel 2010, pp. 45,51,285.
  8. ^ a b Mackenzie 1862, p. 42.
  9. ^ Mackenzie 1862, p. 45.
  10. ^ Murphy 2005, p. 155–156,214.

Sources used[edit]

  • Kelsen, Hans (2007). General Theory of Law And State. The Lawbook Exchange. 
  • "Positive law". Black's Law Dictionary (5th ed.). West Publishing Co. 1979. 
  • Flannery, Kevin L. (2001). Acts Amid Precepts: The Logical Structure of Thomas Aquinas's Moral Theology. Continuum International Publishing Group. ISBN 978-0-567-08815-4. 
  • Heckel, Johannes; Heckel, Martin; Krodel, Gottfried G. (2010). "The Divine Positive Law". Lex charitatis: a juristic disquisition on law in the theology of Martin Luther. Emory University studies in law and religion. Wm. B. Eerdmans Publishing. ISBN 978-0-8028-6445-1. 
  • Mackenzie, Thomas (1862). Studies in Roman law: with comparative views of the laws of France, England, and Scotland. Edinburgh: W. Blackwood and sons. 
  • Murphy, James Bernard (2005). The philosophy of positive law: foundations of jurisprudence. Yale University Press. ISBN 978-0-300-10788-3. 
  • Voegelin, Eric (1997). "Saint Thomas Aquinas". In Sandoz, Ellis. The collected works of Eric Voegelin. History of Political Ideas 2. University of Missouri Press. ISBN 978-0-8262-1142-2. 
  • Thomas Aquinas. Summa contra Gentiles.