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Positive laws ( la, links=no, ius positum) are human-made laws that oblige or specify an action. Positive law 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 Natural law ( la, ius naturale, ''lex naturalis'') is a system of law based on a close observation of human nature Human nature is a concept that denotes the fundamental disposition A disposition is a quality of character, a habit A habit (or ...
", 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) and at a certain place, consisting of
statutory law Statutory law or statute law is written law Torah (; he, תּוֹרָה, "Instruction", "Teaching" or "Law") has a range of meanings. It can most specifically mean the first five books (Pentateuch or Five Books of Moses) of the Hebrew B ...
, and
case law Case law, also used interchangeably with common law In law, common law (also known as judicial precedent or judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written ...
as far as it is binding. More specifically, positive law may be characterized as "law actually and specifically enacted or adopted by proper authority for the government of an organized jural society."


''Lex humana'' versus ''lex posita''

Thomas Aquinas Thomas Aquinas (; it, Tommaso d'Aquino, lit=Thomas of Aquino; 1225 – 7 March 1274) was an Italian Dominican Dominican may refer to: * Someone or something from or related to the Dominican Republic The Dominican Republic ( ; es, ...

Thomas Aquinas
conflated
man-made lawMan-made law is law that is made by humans, usually considered in opposition to concepts like natural law Natural law ( la, ius naturale, ''lex naturalis'') is a system of law based on a close observation of human nature Human nature is a concept ...
() and positive law ( or ). However, there is a subtle distinction between them. Whereas human-made law regards law from the position of its origins (i.e. who it was that posited it), positive law regards law from the position of its legitimacy. Positive law is law by the will of whoever made it, and thus there can equally be divine positive law as there is man-made positive law. Positive Law theory stems from the powers that have enacted it. This type of law is necessary as it is manmade or enacted by the state to protect the rights of the individuals, the governed, to resolve civil disputes and lastly to maintain order and safety in the society. (More literally translated, is posit''ed'' rather than posit''ive'' law.) In the ''
Summa contra Gentiles The ''Summa contra Gentiles'' (also known as ', "Book on the truth of the Catholic faith against the errors of the unbelievers") is one of the best-known treatises by Saint, St Thomas Aquinas, written as four books between 1259 and 1265. It was pr ...
'' Thomas himself writes of divine positive law where he says "''Si autem lex sit divinitus posita, auctoritate divina dispensatio fieri potest'' (if the law be divinely given, dispensation can be granted by divine authority)" and "''Lex autem a Deo posita est'' (But the Law was established by God)".SCG (Hanover House edn 1955–57) bk 4, ch 34(17)
.
Martin Luther Martin Luther (; ; 10 November 1483 – 18 February 1546) was a Germans, German professor of Christian theology, theology, priest, author, composer, former Order of Saint Augustine, Augustinian monk, and is best known as a seminal f ...

Martin Luther
also acknowledged the idea of divine positive law, as did Juan de Torquemada.
Thomas Mackenzie Sir Thomas Mackenzie (10 March 1853 – 14 February 1930) was a Scotland, Scottish-born New Zealand politician and explorer who briefly served as the List of Prime Ministers of New Zealand, 18th Prime Minister of New Zealand in 1912, and l ...
divided the law into four parts, with two types of positive law: divine positive law,
natural law Natural law ( la, ius naturale, ''lex naturalis'') is a system of law based on a close observation of human nature Human nature is a concept that denotes the fundamental disposition A disposition is a quality of character, a habit A habit (or ...
, the positive law of independent states, and the
law of nations International law, also known as public international law and law of nations, is the set of rules, norms, and standards generally recognized as binding between nation A nation is a community A community is a social unitThe term "level of anal ...

law of nations
. The first, divine positive law, "concerns the duties of religion" and is derived from revelation. He contrasted it with divine ''natural'' law, which is "recognized by reason alone, without the aid of revelation". The third, the positive law of independent states, is the law posited by "the supreme power in the state". It is, in other words, man-made positive law. The fourth, the law of nations, regulates "independent states in their intercourse with each other". Thomas Aquinas has little difficulty with the idea of both divine positive law and human positive law, since he places no requirements upon the person who posits law that exclude either humans or the divine. However, for other philosophers the idea of both divine and human positive law has proven to be a stumbling block.
Thomas Hobbes Thomas Hobbes ( ; sometimes known as Thomas Hobbes of Malmesbury; 5 April 1588 – 4 December 1679) was an , considered to be one of the founders of modern . Hobbes is best known for his 1651 book ', in which he expounds an influential form ...
and
John AustinJohn Austin may refer to: Military *John Austin (soldier) (1801–1833), active in early settlement of Mexican Texas *John Arnold Austin (1905–1941), warrant officer in the United States Navy *John Beech Austin (1917–2012), British aviator in ...
both espoused the notion of an ultimate sovereign. Where Thomism (and indeed Mackenzie) divided sovereignty into the spiritual (God) and the temporal (Mackenzie's "supreme power in the state"), both Hobbes and Austin sought a single, undivided, sovereign as the ultimate source of the law. The problem that this causes is that a temporal sovereign cannot exist if humans are subject to a divine positive law, but if divine positive law does not apply to all humans then God cannot be sovereign either. Hobbes and Austin's answer to this is to deny the existence of divine ''positive'' law, and to invest sovereignty in humans, who are, however, subject to divine ''natural'' law. The temporal authority is sovereign, and responsible for translating divine natural law into human positive law. James Bernard Murphy explains: "although our philosophers often seek to use the term ''positive'' to demarcate specifically human law, the term and concept are not well suited to do so. All of divine law is positive in source, and much of it is positive in content […]."


Legal positivism

This term is also sometimes used to refer to the legal philosophy ''
legal positivism Legal positivism is a school of thought of analytical jurisprudence Analytical jurisprudence is a philosophical approach to law that draws on the resources of modern analytical philosophy Analytic philosophy is a branch and tradition of philosop ...
'', as distinct from the schools of
natural law Natural law ( la, ius naturale, ''lex naturalis'') is a system of law based on a close observation of human nature Human nature is a concept that denotes the fundamental disposition A disposition is a quality of character, a habit A habit (or ...
and
legal realism Legal realism is a naturalism (philosophy), naturalistic approach to law. It is the view that jurisprudence should emulate the methods of natural science, i.e., rely on empirical evidence. Hypotheses must be tested against observations of the wor ...
. In this sense, the term is often used in relation to the
United States Code The Code of Laws of the United States of America (variously abbreviated to Code of Laws of the United States, United States Code, U.S. Code, U.S.C., or USC) is the official compilation and Codification (law), codification of the general and perm ...
, portions of which restate
Acts of Congress An Act of Congress is a statute enacted by United States Congress, Congress. Acts can affect only individual entities (called private laws), or the general public (public laws). For a Bill (law), bill to become an act, the text must pass through b ...
(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 Normative generally means relating to an evaluative standard. Normativity is the phenomenon in human societies of designating some actions or outcomes as good or desirable or permissible and others as bad or undesirable or impermissible. A Norm (p ...
, as put forth by the
Brno school Brno ( , ; german: Brünn, ) is a city A city is a large human settlement.Goodall, B. (1987) ''The Penguin Dictionary of Human Geography''. London: Penguin.Kuper, A. and Kuper, J., eds (1996) ''The Social Science Encyclopedia''. 2nd edition. Lo ...
, gave pre-eminence to positive law because of its rational nature.
Classical liberal Classical liberalism is a political ideology and a branch of liberalism Liberalism is a Political philosophy, political and moral philosophy based on liberty, consent of the governed and equality before the law. Liberals espouse a wide a ...
and
libertarian Libertarianism (from french: libertaire, "libertarian"; from la, libertas, "freedom") is a political philosophy Political philosophy or political theory is the philosophical Philosophy (from , ) is the study of general and funda ...
philosophers usually favor natural law over legal positivism. Positive law, to French philosopher
Jean-Jacques Rousseau Jean-Jacques Rousseau (, , ; 28 June 1712 – 2 July 1778) was a Republic of Geneva, Genevan philosopher, writer, and composer. His political philosophy influenced the progress of the Age of Enlightenment, Enlightenment throughout Europe, as w ...

Jean-Jacques Rousseau
, was freedom from internal obstacles. Among the foremost proponents of legal positivism in the twentieth century was
Hans Kelsen Hans Kelsen (; ; October 11, 1881 – April 19, 1973) was an Austrian jurist A jurist is a person with expert knowledge of law; someone who analyses and comments on law. This person is usually a specialist legal scholarnot necessarily with a ...

Hans Kelsen
, both in his European years prior to 1940, and in his American years following 1940 until his death in 1973.


See also

*
Legal naturalism Legal naturalism is a term coined by Olufemi Taiwo to describe a current in the social philosophy of Karl Marx which can be interpreted as one of natural law. Taiwo considered it the manifestation of Natural Law in a dialectical materialist cont ...
*
Man-made lawMan-made law is law that is made by humans, usually considered in opposition to concepts like natural law Natural law ( la, ius naturale, ''lex naturalis'') is a system of law based on a close observation of human nature Human nature is a concept ...
*
Natural law Natural law ( la, ius naturale, ''lex naturalis'') is a system of law based on a close observation of human nature Human nature is a concept that denotes the fundamental disposition A disposition is a quality of character, a habit A habit (or ...
* François Gény (1861–1959), French jurist who introduced notion of "free scientific research" in positive law.


Notes


References

* * * * * * * * {{Authority control Theories of law Legislative legal terminology Philosophy of law Legal positivism Thomistic jurisprudence