Definition of
positive law
positive law is he compendium of legal norms that are in force in a specific territory and at a specific time. All these norms are elaborated by a legislative body and govern as established by the Constitution of the nation
It is important to note that a Legal standard It may be a lawa ordinance, a regulationa statute or other type of text that allows regulating the behavior of human beings or the operation of an entity. These documents can be collected and organized into codes, such as the civil Code or the penal Code.
It is usually indicated, therefore, that positive law is the written law that applies in a jurisdiction. It is established by a social agreement and contributes to harmony by setting guidelines for coexistence and offering mechanisms to resolve conflicts typical of life in society.
- Positive law and the Constitution
- The iuspositivism
- Branches of positive law
- Protection of the most vulnerable
- Positive law and family law
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- The Constitution is the supreme law of a country and positive law is governed according to its principles, being elaborated and modified by the Legislative Power and, on occasions, the Executive Power through decrees.
- Positive law is based on iuspositivism, separating law from morality, and differs from natural law and customary law.
- Positive law is divided into private law, which regulates relations between individuals, and public law, which is responsible for relations between individuals and the State.
- Positive law must contemplate the protection of vulnerable sectors, such as minorities, indigenous peoples, minors, the elderly, the disabled, immigrants and refugees.
- Family law is part of positive law and regulates family relationships, such as marriage, divorce, guardianship and inheritance, adapting to social changes such as equal marriage.
Positive law and the Constitution
The Constitution it is the supreme law of a country. It has a higher rank than the other laws and makes it possible to establish the regime that orders the behavior of people and sets the limits of political power.
The creation and sanction of legal norms that constitute positive law are governed according to the principles of the Constitution of each State. Usually there is a power dedicated to this work: the Legislative powerwhich can function as an assembly, a congress or a parliament.
The members of the Legislative Power, in this way, elaborate, approve and modify the legal norms. However the Executive power You can also create rules in certain situations, such as decrees.
In all cases, no norm can contradict what is established by the Constitution, something that is studied by the constitutional right. That is why positive law is subject to this fundamental law.
It can help you: Supreme Resolution
The iuspositivism
Positive law is based on the philosophical current known as legal positivism either iuspositivism, which institutes a separation between law and morality. According to this vision, valid law is that created by man and made up of norms whose application goes beyond an analysis of values.
In this way, positive law differs from natural law proposed by the natural law. According to the doctrine of natural law, there are universal rights that are pre-existing and superior to written law.
Likewise, positive law is distinguished from common law. According to this source of law, the rules arise from customs and uses that are repeated over time, without being written.
See also: Natural Law
Branches of positive law
Positive law can be segmented according to different criteria. The main division is usually made between the private right and the public Law.
He private right It is the one that is in charge of determining the legal ties between individuals without any of them acting as part of the State. The right trade, he civil law and the private international right They are part of private law.
He principle of equality between the subjects and the autonomy of the will They are the pillars of private law. It is understood that each person acts according to their own interests and that neither party has more rights than the other.
He public Law, on the other hand, is dedicated to the regulation of relations between private entities or individuals with State agencies. He criminal lawhe procedural lawhe administrative lawhe public international law and the tax law are part of this branch.
Continue in: Private Law
Protection of the most vulnerable
As a set of legal norms that organize the functioning of society, positive law must contemplate the protection of all people in the face of various situations. In this framework, care is even more relevant in the case of most vulnerable sectorswho need protection.
He minority rightsFor example, members of ethnic, racial, religious, or gender minority groups are targeted. This jurisprudence aims to promote inclusion.
He rights of indigenous peoples It must also be included in the Constitution, since these communities tend to be discriminated against and many times they do not have the same possibilities of progress as their compatriots.
Members of extreme age groups, in turn, have particular needs, as do people with some type of disability. Thats why he right of minorshe right of the elderly and the right of the disabled They are very important in positive law.
One cannot fail to mention that individuals who, for various reasons, are forced to leave their country (or choose to do so), also need shelter. Thus they acquire significance immigrant rights and the refugee law.
See also: Amparo
Positive law and family law
It is often pointed out that the family it is the foundation of society. People forge their identity and acquire a sense of belonging in these groups whose members maintain a kinship with each other.
He Family right It is made up of the legal norms that order the ties of the members of a family group. It is a part of positive law that is inscribed in the so-called civil law.
The relationships between parents and children and between spouses are the subject of family law, which contemplates both the personal issue and the patrimonial aspect of these ties. The rights and obligations in a marriagethe conditions of a divorce, guardianships, parental authority and hereditary successions are among the topics of interest for family law, as well as the administration of family assets.
As a specialization of civil law, family law is regulated by the civil Code. Given the social changes that produce new forms of family organization, positive law usually undergoes modifications that seek to respond to the demands of the population.
An example of this frequent updating of the law is the approval of the same-sex marriageknown as equality marriage. In the last two decades, more than thirty nations have included this kind of marriage union in their legal system, when before the possibility was not contemplated in positive law.
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