Various philosophers have put forward theories contrasting the value of positive law relative to natural law. The normative theory of law put forth by the Brno school gave pre-eminence to positive law because of its rational nature. Classical liberal and libertarian philosophers usually favor natural law over legal positivism.
Positive law to Rousseau was freedom from internal obstacles.
In the United States the federal statutes are passed by the United States Congress. Some statutes are also "codified" (separately organized and published by subject matter) while others are not. While both codified and uncodified statutes are, in the broad sense, "positive law" (as the term is used above), the term "positive law" also has a separate, more restricted meaning when used to refer to codified statutes (see Codification).
Section 204 of title 1 of the United States Code provides (in part, emphasis added):
In the case of titles that are positive law (in the restricted sense), the text of the title itself, as published in the United States Code by the United States Government Printing Office, is conclusive evidence of the exact wording and punctuation of the statute. In litigation over a provision of the United States Code, this means that to determine the actual wording of the statute the court generally will not look beyond the text as printed in the Code itself.
The titles of the United States Code that are not positive law in this restricted sense are sometimes referred to as "non-positive law" (i.e., not "negative law"). The status of a particular provision in a title that is "non-positive" law has no bearing on the "legality" of that provision except to the extent that (due to a typographical error or other variance) the text of the Code does not exactly match the Act of Congress as published in the United States Statutes at Large (also published by the United States Government Printing Office) that is the source of the provision. In the case of a variance, the text in the United States Statutes at Large is the controlling law.
To make matters somewhat more confusing, certain titles of the United States Code such as title 26 (the Internal Revenue Code), while denoted as "non-positive" law (in the restricted sense), actually represent the currently amended version of "positive" law (in the broader sense of a "duly enacted statute"). That is, title 26 of the United States Code, denominated as the "Internal Revenue Code of 1986," as amended, is apparently identical to the Internal Revenue Code of 1954 as amended. The Internal Revenue Code of 1954 was enacted as positive law (on August 16, 1954), and was also codified as "title 26" of the United States Code.
The designation of a particular title of the Code as "positive" or "non-positive" law usually has little practical significance, as there are very few substantive variances between the texts of statutes as published in the United States Code and the texts of the same statutes in the United States Statutes at Large.
The co-existence of public positive law and the private normative order: the constant spiral of the developing interaction and mutual transition between positive law and normative order.
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Why preemption proponents are wrong: corporate defendants' claim that the effect of state tort actions is equivalent to state positive law has no merit. The reality is that consumer protection can be guaranteed only when tort remedies work in tandem with federal regulation.
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Federalism, Positive Law, and the Emergence of the American Administrative State: Prohibition in the Taft Court Era
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