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Archive for July 5th, 2017

What is Positive Law and Why Should You Care?

Black’s Law Dictionary defines positive law as “a system of law promulgated and implemented within a particular political community by political superiors, as distinct from moral law or law existing in an ideal community or in some nonpolitical community.”

The term positive law in general parlance connotes statutes, i.e., law that has been enacted by a legislature.  The term “natural law” is distinguished from positive law in that it refers to a set of universal principles and rules that properly govern moral human conduct.

Within the context of the US Code, positive law is used in a more limited way. According to the Office of Law Revision Counsel (US House of Representatives), a positive law title of the US Code is a title that has been enacted as a statute. To enact the title, a positive law codification bill is introduced in Congress. The bill repeals existing laws on a certain subject and restates those laws in a new form–a positive law title of the US Code. The titles of the US Code that have not been enacted through this process are called non-positive law titles. The Office of the Law Revision Counsel is charged with making editorial decisions regarding the selection and arrangement of provisions from statutes into the non-positive law titles of the US Code. Non-positive law titles, as a whole, have not been enacted by Congress, but the laws assembled in the non-positive law titles have been enacted by Congress.  Thus, in both positive law titles and non-positive law titles of the US Code, all of the law set forth is positive law (in the general sense of the term) because the entire US Code is a codification of statutes enacted by Congress, and not of natural law principles.

However, when using the US Code, it is important to understand if the title as a whole has been enacted as positive law.  According to 1 U.S.C. § 204(a), the titles not enacted as positive law as a whole are prima facie evidence of the law.  If there is any conflict with the wording in the US Code and the Statutes at Large, the Statutes at Large govern.

Lexis Advance has the United States Code Service (USCS). Westlaw has the United States Code Annotated (USCA).  While both offer the researcher important information, including notes of decisions, it is important to note the difference vis-à-vis positive law.  USCS unlike USCA follows the text of the public laws as they appear in the Statutes at Large.  Thus, if a title as a whole has not been enacted into positive law, the USCS has the authoritative language.  The editors of the USCS use explanatory notes if they feel there is clarification needed in the language of the public laws.

When does this come into play when doing legal research? Only when there is a discrepancy between the language of the statute as printed in a code and the language of the statute as it appears in Statutes at Large.