What is positive law?

Concept, Branches and Characteristics

We explain what Positive Law is and its main characteristics. In addition, what are the branches of this right.

What is positive law

Positive law obeys a social and legal covenant established by the communities.

What is positive law?

A positive right is basically the written corpus of laws, that is to say, the set of legal rules established by a legislative body and compiled in a National Constitution or code of rules (not only laws, but all kinds of legal rules).

Positive law, unlike natural law (inherent to the human being) or customary law (established by custom), thus obeys a social and legal covenant established by the communities themselves for their regulation and exercise of peace, given that laws are written and approved sovereignly.

This type of law regulates the conduct of citizens, the actions of State bodies and private liberties, that is, it creates the framework for coexistence, justice and the resolution of problems necessary for life in society.

These laws remain in force until they are repealed by a new legal framework or discarded by popular and sovereign decision.

Hence, two forms of positive law can be spoken of: that of current application and that which is not in force.

The former acts in accordance with what has already been said, while the latter constitutes the legal history of a nation or collective. To this can be added the legal history of the culture to which the community belongs.

 Characteristics of positive law

Positive law is constantly changing and updating.

First, positive law is a system of enforceable rules, that is, rules that can be used to force others to act in a certain way. The primary function of the State, seen in this way, is to ensure compliance with these rules, including through the monopoly of violence (repression, law enforcement, etc.).

On the other hand, any positive rule must be written, published, disseminated in the community to which it governs, i.e. it must be in the public domain. A law cannot be obeyed if nobody knows it, and that is why there are the physical supports on which legal regulations are printed and circulated: constitutions, codes of different nature, regulations, etc.

And finally, positive law is not definitive: it is constantly changing, remodeling, updating and adapting to the legal and social reality of the communities they regulate. The history of positive law is also, in a way, the history of the legal needs of citizenship.

Branches of positive law

Criminal law punishes actions that put at risk the framework of social coexistence.

Positive law is mainly classified into two categories or branches: public law and private law. This division dates back to the time of Ancient Rome and is based on the distinction between the affairs of the private life of persons, and the affairs of the public life of the State. Each aspect has its own branches, which are detailed below:

Branches of public law

  • Constitutional law. The one that organizes the public powers, the own attributions of the State and its relation with the citizenship.
  • Administrative law. That concerning the administration of State property and resources.
  • Criminal law. The one that regulates the way in which the State will repress and punish actions that put at risk the framework of social coexistence contemplated in the Constitution and its different codes.
  • Public international law. The one that governs and regulates the relations between the different States that exist in a given geographical region (which can be the whole world).
  • Ecclesiastical law. The one that governs the relationship between religious institutions and the State.

Branches of private law

  • Civil law. That which regulates private relations between persons, their rights, freedoms, patrimonies and transmission of hereditary property.
  • Commercial law. The one that governs the transactions and exchanges of goods and services.
  • Labour law. The one who governs labour relations, i.e. employers and workers.
  • Rural law. The one that regulates the affairs of the field and food production.

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