Positive law is the set of rules that make possible the legal organization of a specific territory in a specific period.
Positive law is the compendium of legal norms that are in force in a specific territory and at a specific time. All of these regulations are developed by a legislative body and govern as established by the nation's Constitution .
It is important to keep in mind that a legal norm can be a law , an ordinance , a regulation , a statute or another type of text that regulates the conduct 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 establishing guidelines for coexistence and offering mechanisms to resolve conflicts typical of life in society.
Positive law and the Constitution
The Constitution is the supreme law of a country. It has a higher rank than other laws and makes it possible to establish the regime that orders people's behavior and marks the limits of political power.
The creation and sanction of the legal norms that constitute positive law are governed according to the principles of the Constitution of each State. Typically, there is a branch dedicated to this work: the Legislative Branch , which can function as an assembly, a congress or a parliament.
The members of the Legislative Branch, in this way, prepare, approve and modify legal norms. However, the Executive Branch can also create regulations in certain situations, as is the case with decrees.
In all cases, no rule can contradict what is established by the Constitution, something that is studied by constitutional law . That is why positive law is subject to this fundamental law.
Juspositivism
Positive law is based on the philosophical current known as legal positivism or iuspositivism , which establishes 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 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 customary law . According to this source of law, norms arise from customs and uses that are repeated over time, without being written.
Positive law is based on iuspositivism.
Branches of positive law
Positive law can be segmented according to different criteria. The main division is usually made between private law and public law .
Private law is that which is responsible for determining the legal links between private persons without any of them acting as part of the State. Commercial law, civil law and private international law are part of private law.
The principle of equality between subjects and the autonomy of will are the pillars of private law. It is understood that each person acts based on their own interests and that neither party has more rights than the other.
Public law , on the other hand, is dedicated to the regulation of relationships between private entities or individuals with State agencies. Criminal law , procedural law , administrative law , public international law and tax law make up this branch.
Protection of the most vulnerable
As a set of legal rules that organize the functioning of society, positive law must contemplate the protection of all people in various situations. In this framework, care is even more relevant in the case of the most vulnerable sectors , who need protection.
Minority law , for example, is aimed at members of minority groups at the ethnic, racial, religious or gender level. This jurisprudence aims to promote inclusion.
The right of indigenous peoples must also be included in the Constitution since these communities are often discriminated against and often do not have the same possibilities for progress as their compatriots.
Members of the extreme ages, in turn, have particular needs, as do people with some type of disability. That is why the rights of minors , the rights of the elderly and the rights of the disabled are very important in positive law.
It cannot be omitted to mention that individuals who, for various reasons, are forced to leave their country (or choose to do so), also need protection. This is how the rights of immigrants and the rights of refugees acquire significance.
Family law integrates positive law and allows family relationships to be regulated.
Positive law and family law
It is often pointed out that the family is the basis of society. People forge their identity and acquire a sense of belonging in these groups whose members maintain a kinship with each other.
Family law is made up of the legal rules that regulate the ties of the members of a family group. This is a part of positive law that is part of 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 property aspect of these relationships. The rights and obligations in a marriage , the 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 . Faced with 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 marriage between individuals of the same gender , known as equal marriage . In the last two decades, more than thirty nations included this type of marital union in their legal system, when previously the possibility was not contemplated in positive law.