Positive law

Positive law is a term used to describe the body of law that is set down by a sovereign or central authority to govern a society. It is distinct from natural law, which is based on inherent moral principles. Positive law is created by human beings and is enforceable by the state.

Historical Background

The concept of positive law can be traced back to Ancient Rome, where it was distinguished from natural law. The Roman jurist Cicero famously contrasted the two, emphasizing that positive law is the law that is "posited" or laid down by human authorities.

During the Enlightenment, philosophers such as Thomas Hobbes, John Locke, and Jean-Jacques Rousseau further developed the idea of positive law. Hobbes, in particular, argued that in the absence of a common power to enforce laws, life would be "solitary, poor, nasty, brutish, and short." Thus, positive law was necessary to maintain order and prevent chaos.

Characteristics of Positive Law

Positive law is characterized by several key features:

1. Human-made: Positive law is created by human beings, typically through legislative processes or judicial decisions.

2. Enforceable: It is enforceable by the state or governing authority, which has the power to impose penalties for non-compliance.

3. Changeable: Unlike natural law, which is considered immutable, positive law can be changed or repealed by the same authority that enacted it.

4. Specific: Positive law is often specific and detailed, addressing particular issues or situations within a society.

Positive Law vs. Natural Law

The distinction between positive law and natural law is a central theme in legal philosophy. While natural law is based on moral principles that are believed to be universal and inherent, positive law is based on the decisions of a governing body.

Natural Law: Advocates of natural law argue that there are certain moral principles that are inherent in human nature and can be discovered through reason. These principles should guide the creation of positive law.

Positive Law: Proponents of positive law argue that laws are valid not because they are just or moral, but because they are enacted by legitimate authority and are accepted by society.

Criticisms of Positive Law

Critics of positive law argue that it can lead to unjust laws if the governing authority is corrupt or oppressive. They contend that without a moral foundation, positive law can be used to justify actions that are harmful to individuals or society.

Examples of Positive Law

Examples of positive law include:

1. Statutory Law: Laws enacted by a legislative body, such as the United States Congress or the Parliament of the United Kingdom.

2. Administrative Law: Rules and regulations created by government agencies.

3. Case Law: Legal principles established through judicial decisions.

Also see

• Natural law
• Legal positivism
• Jurisprudence
• Rule of law
• Constitutional law