Positive Law


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Positive Law

 

the aggregate of laws in force at a given moment. Historically, the concept of positive law developed within the school of natural law: laws in force in a country, which change at the will of the legislature in connection with changes in the life of society, were distinguished from natural law, which was considered common to all peoples, eternal and unchanging, and supposedly determined by human nature itself.

The term “positive law” is used in legal science to describe legal norms recognized by authority and to distinguish them from norms that have been rescinded or have lost force in actual fact, as well as from ideas of norms that have not yet been adopted but are desirable in the future (drafts of laws, proposals, demands, and legal ideas). In this sense the term de lege lata (according to existing law) is sometimes used to signify positive law. If a given question is not decided by existing law but a decision is desirable, the expression de lege ferenda (according to future, proposed law) is used.

References in periodicals archive ?
Yet, this is ostensibly the most important practical aspect of Nietzsche's writings especially in the application to positive law.
Instead of the familiar Thomistic description of natural law as the "participation of the eternal law in a rational creature" found in the earlier authors, (112) Hale's typology of law begins with divine and human law, and then subdivides divine law into natural and positive law (B1, 56r-v).
7) Scholars of international law have also frequently examined the intersections of alternative governance tools with positive law, formal institutions, and traditional regulatory enforcement structures, s but few comparative scholars have considered CSR within that mix.
Where the positive law is taught, the Shariah law is not included.
Notice that there cannot be correlative obligations to the rights established in chapter 2 of the Second Treatise of Government, unless they are established by a legislator by a positive law and under the threat of such punishment that would deter the potential break.
Judges on the conservative side retreat to some safe formula of positive law, a focus on the text of the Constitution, or a commitment to "originalism" and tradition.
And reshaping the question in this way brings into much starker relief the significance of Matsui's argument regarding the failure of the judges to take seriously the Constitution as a source of positive law.
Over the course of a decade and more than 30,000 cases, the Michigan Supreme Court has moved unwaveringly in the direction of conforming our case law with the language of the positive law.
Waldron further develops his unflinching views on torture in Chapter 7, "Torture and Positive Law," the signature piece of this compilation.
is the creation of positive law, to be distinguished from those freedoms that remain within the residue of unregulated conduct, fundamental, even "natural" freedoms because they are not, so far, circumscribed by law.
In the current state of positive law, the general prohibition of the wearing of the burqa would be extremely fragile," Denys de Bechillon, a jurist specialising in constitutional law, told the daily newspaper Liberation earlier this year.
A third call was to base positive law upon ethical principles of natural law.

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