What is positive law
Positive law is set of written legal ruleswhich in turn have complied with the formal requirements necessary to carry out the creation of laws in accordance with the provisions of the national constitution of a country.
Both laws and decrees, regulations or agreements Established to regulate the conduct and actions of citizens, public and private organizations, they are part of positive law.
The Magna Carta of a country, for the most part, establishes the Legislative Branch as the competent body for the elaboration of laws, whether it be the congress, the parliament or the national assembly.
It should be noted that positive law is based on iuspositivism, a philosophical and legal current that takes into account the needs from which human beings propose, formulate and establish a series of norms or laws in order to guarantee coexistence and well-being. social.
In this sense, these are laws made by citizens and that respond to a set of needs, varying over time, which are approved and regulated by the State through various public bodies. For example, the right to protection of private property, among others.
See also Juspositivism.
Likewise, positive law is based on the Theory of Normativism raised and defended by the legal theorist Hans Kelsen in the 20th century.
It is about organizing the law according to a hierarchy of norms, giving greater importance to the national constitution, since from this the State is organized, its functions and limits are established.
Based on this, citizens agree on how they want to govern their lives, define how the State will be organized and it goes from being a Constituent Power of the citizens to the Constituted Power of the State, because it is already formed and established, and everything is reflected in the national constitution. agreed.
There are also authors who explain that positive law is a right given by the State once it is constituted and delegates to the Legislative Power the function of creating laws, after compliance with the formal and substantive duties for the creation of these. .
Therefore, the law must be understood as a positive right, a product of the function of the State to legislate, which was given by all citizens at the time of agreeing on the rules that will govern the coexistence of each and every one of the citizens of a country. country.
See also Sources of law.
Current positive law
The positive law It is characterized by having or lacking validity. That is to say, if it is valid it is because the law currently governs, and has not yet been repealed by another law, so all citizens are subject to its compliance.
If, on the other hand, a law is not in force, it means that it is repealed by another, therefore its compliance is not mandatory by virtue of the existence of the new law, which is in force and non-compliance is reprehensible.
Positive law and natural law
He positive law It is based on the fact that the only valid right is that created by man, more specifically by the State through the Legislative Power, which is responsible for the creation of laws in a country in order to establish order and healthy social coexistence. .
For his part, the natural right Being refers to those rights that are inherent to the human being thanks to their own condition, therefore, they are considered prior to written rights. That is, these are fundamental rights such as the right to life.
However, for defenders of positive law, natural law does not exist, and otherwise it will depend in part on what positive law itself allows it to exist, which develops the so-called legal monism, that is, positivism.
See also Natural law.
To explain the above a little, we would have to ask ourselves the following: should we allow any action by the State or country leaders because what they do is permitted by law? Or is there some inherent right of the human being that cannot be violated by any law, and since this violates said rights, it must be annulled?
Here is the discrepancy between positive law and natural law, which creates an extensive battle between one and the other and the different positions that exist among legal professors.
However, there are authors who defend that both positive law and natural law exist and complement each other, since although there is a right inherent to human beings, some inalienable or fundamental rights must be respected by the laws of the different legal systems.
See also:
Examples of positive law
Below are different examples of the application of positive law and its purpose.
National constitutions
Their purpose is to describe the legal framework on which a country is governed. For example, it sets out the functions of public powers, the obligations of the State towards citizens, as well as other regulations intended for the proper political, economic, social and cultural development of a country.
Right to public education
It refers to the right that all citizens must be guaranteed to have access to public primary, secondary and university education financed by the State.
Penal codes
They are a series of laws that stipulate the judicial and criminal processes that correspond to any crime, whether minor or major. For example, assaults, robberies, homicides, among others.
Legal documents
It refers to a series of documents that must be legalized such as birth certificates, marriage certificates, death certificates, divorce certificates, among others, which when changed modify the civil status of citizens and their responsibilities before the law.
Professional ethical codes
There are professions that are organized into guilds or colleges in order to establish and guarantee the rights and duties that professionals in a particular area have.
For example, the doctors’ union has a code of ethics that penalizes those professionals who endanger the lives of patients by proceeding with a treatment without their prior consent.