Positive Law
Overview
Positive law refers to laws that are created by governmental bodies rather than being derived from natural law, morality, or religious belief. Think of it as “law laid down. Positive law is formally written, enacted, and enforced. This contrasts sharply with ideas of inherent ‘rights’ or rules believed to be universal. Historically, the development of positive law marked a shift from rulers claiming authority by divine right or custom to governing through publicly declared, codified rules. It's the foundation of most modern legal systems, including those in the United States, Canada, and across Europe.
Key Ideas
Several core concepts underpin positive law. Separation of Law and Morality is significant. A law isn’t necessarily “good” just because it is a law. Think about historically unjust laws – they were positive law at the time, but widely considered immoral. Legal Positivism is the philosophy most closely associated with positive law; it argues law's validity comes from its source (the legitimate authority that created it) and not its inherent justice. Codification is also important: turning general principles into specific, written rules (like traffic laws or criminal codes) makes the law more predictable and accessible.
Applications
You encounter positive law daily. Everything from contract law governing your employment, to criminal statutes defining illegal behaviors, to administrative regulations affecting businesses fall under positive law. Consider building codes: they aren’t based on a natural ‘right’ to safe housing, but are created by governments through a legislative process. Similarly, intellectual property law (copyrights, patents) protects creations not because they’re inherently ‘deserving’, but because legislatures created those protections.
Critiques
Positive law isn’t without its critics. Natural law theorists argue that law must align with universal moral principles, and that a law violating those principles isn’t truly ‘law’. A significant critique centers on the potential for abuse. If law's validity only stems from its source, what prevents an unjust regime from enacting terrible laws? The historical examples of oppressive laws raise legitimate concerns about the limitations of purely source-based legal systems.