Talk:Positive law

Title 40 of the USC

An anonymous editor removed the reference to title 40 as having been enacted as positive law. I restored the reference to title 40. This is part of a direct quote. Whether title 40 is positive law or not, this is directly quoted material, so we shouldn't be altering it -- at least not in this way. If our fellow editor has some actual authority for the proposition that the quote is incorrect, that could be added to the article as an explanation. Yours, Famspear 18:57, 18 September 2006 (UTC)

Confused

From my (continental European) perspective the article seems rather confusing. In my view there is not really a contrast between positive law and other types of law such as natural law and the law that follows from utilitarian principles using economic reasoning. IMHO there is no contrast because there is no choice.

Citizen, courts and attorneys are bound by positive law. That's the system of "division of powers". If positive law differs from natural law, people could change the law by political means (ranging from democratic means to perhaps revolution). But different people may have different views on "natural" law, despite its claim to be "natural". If law is believed to be inefficient, eventually also only politics can change the positive law. If efficiency is considered relevant, if there is agreement on what is considered "efficient", and if the effects of law on efficiency are sufficiently understood, and if the proposed change indeed is believed to improve efficiency.

To some extent, courts can change positive law as well, in particular in Anglo-Saxon countries with a "common law" system in the area of private (civil) law, but also in continental systems as far as the statutes leave sufficient room for interpretation (wich is dependent on many factors, such as the age of the statute, possible contradictions, changed circumstances (e.g. new technologies), etc.)

Rbakels (talk) 20:17, 13 February 2008 (UTC)

ANSWER: To the user who posted this section on being confused, I cleared the language up in the initial paragraph to make it more accurate and easy to understand. As a footnote, it should be pointed out that the Natural Law is that which is bound by the Axiom of Nonaggression. Positive law, as the article points out, is not bound by the Non-aggression Axiom, and can -- in fact -- be quite violent and tyrannical. For example, if a society passed a law tomorrow stating that all its homosexual members were to be killed, this would be categorized as Positive (posited) Law, but not Natural Law, as it would blatantly violate the Non-aggression Axiom.

Thanks, it is better now. I never heard about the "Axiom of Nonaggression". Frankly, it sounds to me as yet another form of natural law, somehow "logical", but always disputable. But that aside. Rbakels (talk) 11:42, 23 March 2012 (UTC)

Let me add further clarification. Positive law (in the European sense) is law that courts apply (or applied in the past). The oppositie is normative law, law as it ought to be, from the perspective of "justice". Which might be the same, or different. Of course, "justice" means different things to different people. So one can agree or disagree with a statement based on "justice". Basically it is the difference between facts and opinions.

Anyway, I consulted the lemma to find the proper terminology for an article for an international audience that includes both Europeans and Americans. I am still puzzled about UK law: is it similar to US law in this respect as well, or does it follow European law here? Rbakels (talk) 11:52, 13 May 2012 (UTC)

The Non-aggression_principle is a libertarian ideal (held by some others). Where can you state that natural law is bound by it? What legitimate authority has declared that the non-aggression principle binds natural law? Jlamos (talk) 04:40, 5 December 2023 (UTC)

This article is desperately confused, in English and even more as to Latin. However, that reflects confusion of the scholarship on the topic. Professors must improve - and I'm one. Wikiain (talk) 10:45, 16 June 2017 (UTC) Wikiain (talk) 10:45, 16 June 2017 (UTC)

Positive law (United States Code)

I've been bold and split off an article about Positive law (United States Code) from here. The terminologies are completely different, and refer to concepts that are completely different. Hence, they don't belong in the same article. I'm undecided as to whether this article should be a disambiguation page (Legal positivism already exists, which describes one concept of 'Positive law' that is discussed in this article). Anyone want to advance an opinion? Bastin 10:07, 27 December 2009 (UTC)

Legal positivism

The paragraph about "legal positivism" is very confusing. Is the term "positivsm" perhaps ambiguous again within Europe? In my perception "legal positivism" is not a choice or a preference, but a fact. Natural law is a completely controversial topic. Basically it refers to an opinion on justice that claims to be "right", denying the need to give a reason. Or as one of my law professors put in: with "natural law", you get the result you have put in the "system" yourself.

More in general, in this section IMHO it is inappropriate to elaborate on possible sources of normative law. It is an opinion and that's it, wherever it comes from. Rbakels (talk) 12:01, 13 May 2012 (UTC)

"Human-made"

The first sentence defines positive law as being "human-made": "Positive laws (Latin: ius positum) are human-made laws that oblige or specify an action."

But then In "Lex Humana vs lex posita": "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."

This seems contradictory to me (a philosophy novice), but I am guessing it may be a terminology issue (e.g., "ius positum" (associated with the former sentence) vs. ius positivum (associated with the latter part) being two slightly different things but both translating to positive law?) or maybe a historical issue (e.g., in these different frameworks, one thing, and then Thomas Aquinas conflates man-made and positive, and thus we end at the definition we gave in the first sentence of the article in which they are indeed conflated.) In the latter case, I suppose my proposal would be to change the first part of "Lex Humana vs lex posita" from "Thomas Aquinas conflated... However, there is a subtle distinction..." to something more like, "Thomas Aquinas, on whose work this definition is usually based conflated... Other frameworks, however, distinguish..."

ArghMachine (talk) 20:45, 2 November 2019 (UTC)

Glad to see some discussion. I just wanted to flag that it doesn't make sense to claim that Thomas Aquinas conflated these two (Lex Humana, Lex Posita) if, as the current text reads, Aquinas asserts that God himself can posit law. Aquinas is one of the most subtle and consistent writers out there, so I am not sure I would say they are 'conflated' as much as 'related'. Jmvajda (talk) 02:50, 5 December 2023 (UTC)