Positive law
Encyclopedia
Positive law is the term generally used to describe man-made laws which bestow specific privileges upon, or remove them from, an individual or group. This in contrast to natural law
, which comprises inherent rights, conferred not by act of legislation but by "God, nature or reason."
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."
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.
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 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 Jean-Jacques Rousseau
, was freedom from internal obstacles.
Natural law
Natural law, or the law of nature , is any system of law which is purportedly determined by nature, and thus universal. Classically, natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior. Natural law is contrasted with the positive law Natural...
, which comprises inherent rights, conferred not by act of legislation but by "God, nature or reason."
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."
This term is also sometimes used to refer to the legal philosophy, legal positivism
Legal positivism
Legal positivism is a school of thought of philosophy of law and jurisprudence, largely developed by nineteenth-century legal thinkers such as Jeremy Bentham and John Austin. However, the most prominent figure in the history of legal positivism is H.L.A...
, as distinct from the schools of natural law
Natural law
Natural law, or the law of nature , is any system of law which is purportedly determined by nature, and thus universal. Classically, natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior. Natural law is contrasted with the positive law Natural...
and legal realism
Legal realism
Legal realism is a school of legal philosophy that is generally associated with the culmination of the early-twentieth century attack on the orthodox claims of late-nineteenth-century classical legal thought in the United States...
. In this sense, the term is often used in relation to the United States Code
United States Code
The Code of Laws of the United States of America is a compilation and codification of the general and permanent federal laws of the United States...
, portions of which restate acts of Congress (i.e., positive law), while other portions have themselves been enacted and are thus positive law.
With respect to the broader sense, various philosophers have put forward theories contrasting the value of positive law relative to natural law
Natural law
Natural law, or the law of nature , is any system of law which is purportedly determined by nature, and thus universal. Classically, natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior. Natural law is contrasted with the positive law Natural...
. The normative theory of law put forth by the Brno school gave pre-eminence to positive law because of its rational nature. Classical liberal and libertarian
Libertarianism
Libertarianism, in the strictest sense, is the political philosophy that holds individual liberty as the basic moral principle of society. In the broadest sense, it is any political philosophy which approximates this view...
philosophers usually favor natural law over legal positivism. Positive law, to Jean-Jacques Rousseau
Jean-Jacques Rousseau
Jean-Jacques Rousseau was a Genevan philosopher, writer, and composer of 18th-century Romanticism. His political philosophy influenced the French Revolution as well as the overall development of modern political, sociological and educational thought.His novel Émile: or, On Education is a treatise...
, was freedom from internal obstacles.