Positive law facts for kids

Positive laws are rules made by people. They tell us what we must do or what we are allowed to do. These laws also create specific rights for individuals or groups. The word "positive" comes from the idea of "positing" or setting down a rule.

Positive laws are different from natural law. Natural law refers to rights that are thought to be part of human nature, given by "God, nature, or reason," not by governments. Positive laws are the rules that apply in a certain place and at a certain time. This includes statutory law (laws made by lawmakers) and case law (laws based on court decisions). Simply put, positive laws are rules that have been officially created and put into action by the right authority to govern a society.

Understanding Human-Made Laws

Some thinkers, like Thomas Aquinas, used the terms "human-made law" (lex humana) and "positive law" (lex posita) in similar ways. However, there is a small difference. "Human-made law" focuses on who made the law. "Positive law" focuses on how the law became official and valid.

Positive law is valid because someone with authority decided it should be. This means there can be divine positive law (laws believed to be from God) and human-made positive law (laws made by people). Positive laws are important because they are created by the state to protect people's rights. They also help solve disagreements and keep society safe and orderly.

For example, Thomas Aquinas wrote about divine positive law, saying that if a law comes from God, God can make exceptions to it. He also stated that "the Law was established by God." Other thinkers like Martin Luther also believed in divine positive law.

Types of Positive Law

Thomas Mackenzie, a legal expert, divided laws into four main types. Two of these were positive laws:

• Divine positive law: These are rules about religious duties that come from divine revelation. Mackenzie saw this as different from divine natural law, which is understood through reason alone.
• Positive law of independent states: These are the laws made by the highest power in a country. This is what we usually think of as human-made positive law.
• He also mentioned natural law and the law of nations, which guides how different countries interact.

Some philosophers, like Thomas Hobbes and John Austin, believed there should be only one ultimate ruler or "sovereign." This idea caused problems when considering both divine and human positive law. If humans are subject to divine law, then a human ruler cannot be the ultimate authority. Hobbes and Austin solved this by saying that divine positive law does not exist. They believed that human rulers are sovereign and are responsible for turning divine natural law into human positive law.

Legal Positivism as a Philosophy

The term "positive law" is also used to describe a way of thinking about law called legal positivism. This idea is different from natural law and legal realism. Legal positivism focuses on laws as they are written and enforced, rather than on ideas of morality or justice.

For example, parts of the United States Code are positive law because they were officially passed by Acts of Congress. Other parts just explain existing laws but are not new laws themselves.

Many philosophers have discussed the value of positive law compared to natural law. Some, like those from the Brno school, thought positive law was very important because it was based on reason. Classical liberal and libertarian thinkers often prefer natural law. The French philosopher Jean-Jacques Rousseau saw positive law as a way to gain freedom from inner struggles. A very important supporter of legal positivism in the 20th century was Hans Kelsen.

See also

• Legal naturalism
• Man-made law
• Natural law
• Natural person in French law
• François Gény (1861–1959), a French legal expert who introduced the idea of "free scientific research" in positive law.