Positive Law
See also the discussion of positive law in our Research Study on Text-driven Law.
Working definition
- Positive law is the entirety of legal norms that are in force in a specified jurisdiction, derived from the sources of law.
- As explained under legal norms, this includes both primary rules (regulative, i.e. legal norms that directly regulate) and secondary rules (constitutive, i.e. legal norms that define how primary rules can be made)
- Being in force refers to (1) the binding character of positive law, (2) the state’s actual power to enforce the law and (3) a decision by a legislator, public administration or court whereby they enact legal norms in the sense of issuing, interpreting and/or applying them. All three points relate to the nature of legal effect as opposed to causal effect.
- Legal certainty depends on the ‘positivity’ of the law
- Positive law is informed by the moral principles that constitute its implied philosophy and simultaneously informs the moral practices of those subject to its normativity
- Positive law differs from morality in (1) that it does not depend on the moral inclinations of an individual decision-maker, and (2) that it is in principle enforceable against those under its jurisdiction
- Positive law differs from politics and policy in that it does not determine the purposes of a polity but determines what legal effect is attributed based on the fulfilment of what legal conditions. The rule of law implies that political decision-making depends on the attribution of a legal power to do so, meaning that the legal effect of primary legal norms depends on the legal effect of secondary legal norms.
- Positive law assumes the existence of a sovereign state and simultaneously constitutes and regulates that same sovereign state
- The rule of law as well as the protection of human rights depend on positive law
- Positive law is often opposed to ‘natural law’, which may refer to divine law (medieval period) or the law of reason (enlightenment period), both of which claim universal application and an objective truth-value; positive law is human-made (it is ‘posited’), depending on the social contract that defines a particular jurisdiction
- Though some authors restrict the meaning of ‘positive law’ to legislation, we use the concept to refer to all legal norms, whether enacted by a legislature or a court, whether written or unwritten, as long as they derive from the sources of law.
- Positive law should not be confused with ‘legal positivism’, which refers to a specific conception about the nature of law, its making and its validity. Recognizing the importance of positive law does not imply ‘legal positivism’.