necessary due to positive law
's failure to prevent or mitigate
insistence on exclusively applying positive law
: What good is a belief
Coan notes that even "pragmatist judges" would have good reason to avoid "instability and disruption of expectations"; (36) and surely at least some instability is caused by any departure, however minor, from the existing positive law
. (If originalism were not our positive law
, as the French Civil Code is not, the judge's job in rejecting it would be that much easier.) In focusing on what is to be done in the future--on the "pressing matters of constitutional substance" (37)--we can't help thinking, at least a little bit, about what the existing law requires; and once we do, we can't help spending time debating whether one ought, morally, to comply.
Code as positive law
. Congress approved the code in 1926 as only prima facie evidence of the law.
The codifier's canon only appears in positive law
[...] Legal hadiths are relatively few, however, when measured against the massive and intricately detailed corpus of early and later Islamic positive law
and the immense body of juristic dissent that grew up around it" (p.
The 14th and the 20th Centuries--The Crystallization of the Notion in Jurisprudence and in the Positive Law
This common thread is a tendency to think of the relationship between God's eternal law and his creatures as comparable to the relation between human positive law
and its subjects.
In his opinion for the Court in the Amistad case, Joseph Story insisted that the case "must be decided upon the eternal principles of justice and international law." In this case, according to the Court, the requirements of the positive law
happily coincided with the dictates of natural law.
According to jurisprudence of the day, all law could be divided into four categories: (1) the law of nature, (2) the ius gentium or what we call law of nations, (3) the ius civile, the municipal law or positive law
of individual kingdoms or territories, and (4) the ius divinum, the law of God that had been given to Jews and Christians.
Instead, its argument has usually been confined to the following two focal points: normative justification of the existing systems of positive law
and the notion of evil laws.
This unique principle that prevents arbitrary jurisdiction in general has grounds in positive law
such as the European Convention on Human Rights (ECHR) and the Constitution.