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What Are Positive Laws

First, political difficulties arise when considering the possibility that a Declaration of Human Rights may simply remain a declaration. For example, the People`s Republic of China used floats against students protesting, despite recognizing freedom of procession and demonstration under Article 87 of its constitution. The answer to this question may simply be respect for positive law. In order to give human rights real power in the world, they must not remain on their word, but be firmly rooted in human practice. To this end, human rights must find their place in the constitution, sometimes written, sometimes unwritten, and do both: binding the powers of the government to human rights and limiting their power, including possible prosecution in the courts against any abuse of state power and non-recognition of rights. Wherever this happens, human rights, which were previously only part of universal legal morality, become elements of positive law. They are transformed from mere human rights into fundamental rights of a particular community based on the rule of law. In practice, practically no system is a pure system, in which legal personality is in persons or things, or in which the sovereign jealously guards the prerogative to confer personality. Systems based on an understanding of inherent legal personality must constantly review the categories of persons and entities covered and constantly discover new aspects of their legal personality. Moreover, sovereign States within these systems also have the power to confer legal personality.

Positive law systems regularly discover that they must recognize aspects of legal personality that are not defined in the personality award. These redefinitions of legal personality, sometimes formulated as conclusions of attribution and sometimes as necessary elements of any attribution of personality, depend on the evolution of cultural circumstances, in particular political and economic for their content, even if the content of the changes must be recognized by an arm of the sovereign, for example the courts. Moreover, the history of legal personality shows that the concepts of legal personality did not develop properly from the concepts of personality inherent in positive expressions of personality. On the contrary, the concepts of legal personality depend both on the surrounding circumstances and, in turn, influence them. According to natural law, a positive law is just to the extent that it is compatible with natural law. This does not mean, however, that positive laws are merely derivations of natural law, that the positivity of a law adds nothing to its moral power, or that sometimes the affirmation of a law itself cannot establish a moral obligation where it would not otherwise exist. As for how they are derived from natural law, positive laws can be divided into two categories. The first category includes positive laws that flow directly from the requirements of natural law, such as anti-murder laws. The second category is positive laws that relate more directly to natural law, through what Thomas Aquinas calls the “provisions” of the legislator. As Thomas Aquinas explains, such laws do not derive from natural law, unlike those in the first category, such as “conclusions derived from general principles,” but as “the implementation [determinations] of general directives” (q. 95, a. 2).

For example, natural law requires that certain resources be pooled in favor of public goods such as bridges and roads, but natural law does not specifically specify a way to do so. Indeed, the prudent legislator will take account of the particular social and cultural conditions of the Community in order to develop the most equitable and appropriate means of pooling resources. The result – say, a series of tax laws – is a determination or clarification of the natural law`s requirement to promote the common good (in this case through the provision of material resources), which binds only the members of a particular community. In this sense, such laws are quite binding because they are established, even if their normative power ultimately derives from the permanent principles of practical reason. The choice (determination) of leaders will therefore determine what is only fair to those under their rule. In the positive and non-positive legal titles of the Code, all the law presented is positive law (in the general sense of the term), since the entire Code is a codification of federal laws enacted by Congress and not of pre-existing principles of natural law. Legal positivism denies the existence of natural law and accepts only the justice implicit in state law: it asserts that one cannot determine the law by seeking underlying rational or spiritual processes. The law is considered a construction of the general will of the people of a state and cannot be false because an entire people cannot do anything wrong by creating its own laws for its own state. Positive law rights are legally enforceable freedoms or protections. Systems of positive law seem to solve the problem of legal personality in systems that maintain the belief in inherent legal personality.

According to positive law, legal personality resides in nothing and in no one, but in the result of a donation from the sovereign authority. Therefore, legal personality is a fiction created by the sovereign for instrumental purposes. The sovereign may decide to grant a person, a category of persons or groups of persons, formally or informally constituted within the social structure, the right to act within the framework of the legal system. In fact, the sovereign may grant the right to act against inanimate objects or entities that are themselves the creation of the sovereign, such as corporate or subordinate political entities. However, the difficulty with positive law systems is a matter of legal awareness within a culture. That is, cultural notions of human dignity, whether individual or collective, the naturalness of human associations, or even notions of the inherent rights of animals, for example, may conflict with the sovereign`s desire to grant legal personality, however small. Thomas Aquinas mixed artificial law (lex humana) and positive law (lex posita or ius positivum). [3] [4] [5] However, there is a subtle difference between them.

While man-made law considers law from the position of its origins (i.e. who postulated it), positive law considers law from the point of view of its legitimacy. Positive law is law by the will of the one who made it, and therefore there can be a divine positive law just as there is a positive law made by man. The theory of positive law comes from the powers that promulgated it. This type of law is necessary because it is man-made or promulgated by the state to protect the rights of individuals, the governed, resolve civil disputes and, finally, maintain order and security in society. (Translated more literally, lex posita is postulated rather than positive law.) [3] In the Summa contra Gentiles, Thomas himself writes about the divine positive law, where he says: “Si autem lex sit divinitus posita, auctoritate divina dispensatio fieri potest (if the law is divinely given, the dispensation may be granted by divine authority)”[6] and “Lex autem a Deo posita est (But the law was established by God)”. [7] Martin Luther, like Juan de Torquemada, recognized the idea of divine positive law. [8] Ontologically Sens, Nussbaum and Luke`s theories of “universal rights” could be based on natural rights, a kind of “moderate essentialism” derived from universal human qualities.