Positive right
Positive law, or statutory law, is “human law ”. The opposite term is superpositive law or natural law . Explained clearly is positive law the right to the man- created , while natural rights of man only discovered is.
The term is used specifically in jurisprudence and legal philosophy .
The German expression is a loan translation of the Latin ius positivum . "Positive" (from Latin ponere "to set", participle positum "set") means in particular "arose through legislation" or "arose through jurisdiction".
Positive law is not only formal parliamentary laws, but also, among other things, common law and judicial law - if recognized as a legal source .
The tension between positive law and natural law
The term “positive law” emphasizes the contrast to natural law , philosophical ethics and general legal principles , which - depending on the starting point of the person who thinks about it - are “natural”, “inherent in man” or “given by God”. This does not mean from the outset that there are contradictions in content between positive law and - for example - natural law: As soon as natural law is made binding, it has become positive law.
The expression “superpositive law” is also used for natural law. From the point of view of prevailing legal positivism :
Positive law is man-made and therefore changeable law. Positive law applies (as opposed to over-positive or natural law) at certain times and in certain places. It applies even if it is perceived by the “feeling” of an individual - or in the special case even according to the opinion of the majority of people - as “unjust” and thus wrong .
Positive law is imperfect and can be changed at any time, but as the current form of the legal system it initially claims compliance. But then the judicial route is open to all; positive law can also be reformulated by influencing the parliaments as legislators.
Wrong
Breaking positive law can be ethically justified in an injustice regime; see: On the Validity of Unjust Laws ; also: Radbruch's formula .
Furthermore, it is possible that a regulation of positive law comes into conflict with other legal regulations. It could turn out to be unconstitutional or immoral . Compliance could therefore be problematic in individual cases.
The most famous saying about positive law comes from Hans Filbinger :
"What was right then cannot be wrong today!"
Basic Law in Germany
The German Basic Law takes up the problem in its Articles 1 and 79. Article 1 reads in excerpts: “ Human dignity is inviolable. It is the duty of all state authorities to respect and protect them. […] The following basic rights bind legislation, executive power and jurisdiction as directly applicable law. ”However, the Basic Law can be changed with two thirds of the votes in the Bundestag and Bundesrat . For this reason, the so-called eternity clause was inserted in Art. 79 Paragraph 3: "An amendment to this Basic Law, through which [...] the principles laid down in Articles 1 and 20 are affected, is inadmissible." to counteract the dangers that may arise from the validity of positive law. The same thought is already in the formulation of the "inviolability" of human dignity.
Individual evidence
- ^ E. Waibl, FJ Rainer: Basic knowledge philosophy. facultas.wuv, Vienna 2007, No. 864.
- ^ Klaus F. Röhl , Hans Christian Röhl : General legal theory. 3rd edition, C. Heymanns, Cologne [u. a.] 2008, § 34 II, p. 291: "The concept of positive law only gets its meaning against the background of natural law as a counter-concept."
- ^ Klaus F. Röhl, Hans Christian Röhl: General legal theory. 3rd edition, C. Heymanns, Cologne [u. a.] 2008, § 34 I, p. 291.