Positive Law

Positive Law in United States

Positive Law Definition

Law actually ordained or established, under human sanctions, as distinguished from the law of nature or natural law, which comprises those considerations of justice, right, and universal expediency that are announced by the voice of reason or of revelation. Municipal law is chiefly, if not essentially, positive; while the law of nations has been deemed by many of the earlier writers as merely an application of the law of nature. That part of the law of nations which rests on positive law may be considered in a threefold point of view: First, the universal voluntary law, or those rules which become law by the uniform practice of nations in general, and by the manifest utility of the rules themselves ; second, the customary law, or that which; from motives of convenience, has, by tacit but implied agreement, prevailed not necessarily among all nations nor with so permanent a utility as to become a portion of the universal voluntary law, but enough to have acquired a prescriptive obligation among certain states so situated as to be mutually benefited by it (1 Taunt. 241) ; third, the conventional law, or that which is agreed between particular states by express treaty, a law binding on the parties among whom such treaties are in force. 1 Chit. Com. Law, 28.

Positive Law Codification

Positive law titles of the United States Code are legal evidence of the law and need no further authoritative citation as prior acts concerning those titles have been repealed. Other titles to the United States Code are “prima facie” evidence of the law (1 USC §204), and are presumed to be the law, but are rebuttable by production of prior unrepealed acts of Congress at variance with the U. S. Code.

Positive Law Codification in the Legal Dictionaries

In the Encyclopedia of Law Dictionary:

According to the Black’s Law Dictionary, Sixth Edition:

  • Positive law. “Law actually and specifically enacted or adopted by proper authority for the government of an organized jural society.”
  • Enact. “To establish law; to perform or effect; to decree. The common introductory formula in making statutory laws is, “Be it enacted.”
  • Legislation. “The act of giving or enacting laws; the power to make laws; the act of legislating; preparation and enactment of laws; the making of laws via legislation, in contrast to court-made laws. Formulation of rule for the future. Laws enacted by lawmaking body (e.g. Congress or state legislature). Oklahoma City, Okl. v. Dolese, C.C.A.Okl., 48 F.2d 734, 738.”

Positive Law meaning in the US Code

From the Office of the Law Revision Counsel site:

“Positive law codification is the process of preparing and enacting, one title at a time, a revision and restatement of the general and permanent laws of the United States.”

“When used with respect to the United States Code—as in positive law codification or a positive law title of the Code–the term “positive law” has a special and particular meaning. In general, however, especially in legal philosophy, the term “positive law” is used more broadly. There is overlap to be sure. But the meaning of the term as used generally is not identical to the meaning of the term as used with respect to the Code, and the distinction must be understood to avoid confusion.

Why is there a specialized meaning for the term “positive law” with respect to the United States Code, and why is this term used despite the potential for confusion with the broader meaning given to the identical term in legal philosophy? The answer involves a historical solution to a statutory drafting problem. For generations, Congress has used the term “positive law” when it enacts a title of the Code, as such, into statutory law. For example, section 1 of the Act of July 30, 1947 (1 U.S.C. note prec. 1), provides in relevant part: “Title 1 of the United States Code entitled ‘General Provisions’, is codified and enacted into positive law . . . .” .

Earlier legislative drafters chose the term “positive law” in order to capture the abstract distinction between a title of the Code that has been enacted, as such, versus a title of the Code that has not been enacted, as such, but that sets forth enacted statutes. More literally, this distinction might be expressed as “enacted title” versus “non-enacted title”, but those literal terms are problematic since they incorrectly suggest that provisions set forth in a “non-enacted title” of the Code have not been enacted. Those provisions have been enacted, but as part of a number of freestanding statutes rather than as part of an enacted (positive law) title. The specialized use of the term “positive law” in this situation captures the abstract distinction between the two types of titles in the Code, and the use of the term in this way is now well established.

In general, the term “positive law” connotes statutes, i.e., law that has been enacted by a duly authorized legislature. (codes, statutes, and regulations) As used in this sense, positive law is distinguishable from natural law. The term “natural law”, especially as used generally in legal philosophy, refers to a set of universal principles and rules that properly govern moral human conduct. Unlike a statute, natural law is not created by human beings. Rather, natural law is thought to be the preexisting law of nature, which human beings can discover through their capacity for rational analysis.

Within the context of the Code, the term “positive law” is used in a more limited sense. A positive law title of the 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 Code. The titles of the Code that have not been enacted through this process are called non-positive law titles.

Non-positive law titles of the Code are compilations of statutes. 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 Code. Non-positive law titles, as such, have not been enacted by Congress, but the laws assembled in the non-positive law titles have been enacted by Congress.

In both positive law titles and non-positive law titles of the Code, all of the law set forth is positive law (in the general sense of the term) because the entire Code is a codification of Federal statutes enacted by Congress, and not of preexisting natural law principles.”

Codification of Legislation

Because many of the general and permanent laws that are required to be incorporated into the United States Code are inconsistent, redundant, and obsolete, the Office of the Law Revision Counsel of the House of Representatives has been engaged in a continuing comprehensive project authorized by law to revise and codify, for enactment into positive law, each title of the Code. When this project is completed, all the titles of the Code will be legal evidence of the general and permanent laws and recourse to the numerous volumes of the United States Statutes at Large for this purpose will no longer be necessary.

Positive law codification bills prepared by the Office do not change the meaning or legal effect of a statute being revised and restated. Rather, the purpose is to remove ambiguities, contradictions, and other imperfections from the law.

See US Code and Statutes at Large. Compare with special law.

Certain titles of the Code have been enacted into positive law, and pursuant to section 204 of title 1 of the Code, the text of those titles is legal evidence of the law contained in those titles. The other titles of the Code are prima facie evidence of the laws contained in those titles. The following titles of the Code have been enacted into positive law: 1, 3, 4, 5, 9, 10, 11, 13, 14, 17, 18, 23, 28, 31, 32, 35, 36, 37, 38, 39, 40, 44, 46, and 49.

Positive Law Titles vs. Non-Positive Law Titles

From the Office of the Law Revision Counsel site:

“The Code is divided into titles according to subject matter. Some are called positive law titles and the rest are called non-positive law titles.

A positive law title of the Code is itself a Federal statute. A non-positive law title of the Code is an editorial compilation of Federal statutes. For example, Title 10, Armed Forces, is a positive law title because the title itself has been enacted by Congress. For the enacting provision of Title 10, see first section of the Act of August 10, 1956, ch. 1041 (70A Stat. 1). By contrast, Title 42, The Public Health and Welfare, is a non-positive law title. Title 42 is comprised of many individually enacted Federal statutes––such as the Public Health Service Act and the Social Security Act––that have been editorially compiled and organized into the title, but the title itself has not been enacted.

The distinction is legally significant. Non-positive law titles are prima facie evidence of the law, but positive law titles constitute legal evidence of the law in all Federal and State courts (see below).

Having, on one hand, non-positive law titles as prima facie evidence of the law, and on the other hand, positive law titles as legal evidence of the law, means that both types of titles contain statutory text that can be presented to a Federal or State court as evidence of the wording of the law. The difference between “prima facie” and “legal” is a matter of authoritativeness.

Statutory text appearing in a non-positive law title may be rebutted by showing that the wording in the underlying statute is different. Typically, statutory text appearing in the Statutes at Large is presented as proof of the words in the underlying statute. The text of the law appearing in the Statutes at Large prevails over the text of the law appearing in a non-positive law title.

Statutory text appearing in a positive law title is the text of the statute and is presumably identical to the statutory text appearing in the Statutes at Large. Because a positive law title is enacted as a whole by Congress, and the original enactments are repealed, statutory text appearing in a positive law title has Congress’s “authoritative imprimatur” with respect to the wording of the statute. See Washington-Dulles Transp., Ltd. v. Metro. Wash. Airports Auth., 263 F.3d 371, 378 n.2 (4th Cir. Va. 2001); see generally Norman J. Singer & J.D. Shamble Singer, Statutes and Statutory Construction, § 36A.10, (7th ed. 2009). Recourse to other sources such as the Statutes at Large is unnecessary when proving the wording of the statute unless proving an unlikely technical error in the publication process.

Non-positive law titles and positive law titles both contain laws, but the two types of titles result from different processes. A non-positive law title contains numerous separately enacted statutes that have been editorially arranged into the title by the editors of the Code. The organization, structure, and designations in the non-positive law title necessarily differ from those of the incorporated statutes, and there are certain technical, although non-substantive, changes made to the text for purposes of inclusion in the Code. A positive law title is basically one law enacted by Congress in the form of a title of the Code.

The organization, structure, designations, and text are exactly as enacted by Congress. In the case of a positive law title prepared by the Office of the Law Revision Counsel, the title is enacted as a restatement of existing statutes that were previously contained in one or more of the non-positive law titles. In such a restatement, the meaning and effect of the laws remain unchanged; only the text is repealed and restated. In preparing a codification bill, the Office uses the utmost caution to ensure that the restatement conforms to the understood policy, intent, and purpose of Congress in the original enactments.”

Citation and Codes and Supplements as evidence of the laws

1 U.S.C. 204: “Codes and Supplements as evidence of the laws of United States and District of Columbia; citation of Codes and Supplements

Sec. 204. – Codes and Supplements as evidence of the laws of United States and District of Columbia; citation of Codes and Supplements

In all courts, tribunals, and public offices of the United States, at home or abroad, of the District of Columbia, and of each

State, Territory, or insular possession of the United States –

(a) United States Code. –

The matter set forth in the edition of the Code of Laws of the United States current at any time shall, together with the then current supplement, if any, establish prima facie the laws of the United States, general and permanent in their nature, in force on the day preceding the commencement of the session following the last session the legislation of which is included: Provided, however, That whenever titles of such Code shall have been enacted into positive law the text thereof shall be legal evidence of the laws therein contained, in all the courts of the United States, the several States, and the Territories and insular possessions of the United States.

(b) District of Columbia Code. –

The matter set forth in the edition of the Code of the District of Columbia current at any time shall, together with the then current supplement, if any, establish prima facie the laws, general and permanent in their nature, relating to or in force in the District of Columbia on the day preceding the commencement of the session following the last session the legislation of which is included, except such laws as are of application in the District of Columbia by reason of being laws of the United States general and permanent in their nature.

(c) District of Columbia Code; citation. –

The Code of the District of Columbia may be cited as ”D.C. Code”.

(d) Supplements to Codes; citation. –

Supplements to the Code of Laws of the United States and to the Code of the District of Columbia may be cited, respectively, as ”U.S.C., Sup. ”, and ”D.C. Code, Sup. ”, the blank in each case being filled with Roman figures denoting the number of the supplement.”

U.S. v. Ward

U.S. v. Ward, 131 F.3d 335 C.A.3 (N.J.) (1997)

“Thus, there is a clear conflict between the codification and Statutes-at-Large version of the Act. It is evident that even though the codified version of the amendments contains no “subsection (a),” the italicized part of the Statutes-at-Large version identifies the “offense” referred to in subsection 14011(b)(1). The codified version of legislation is prima facie evidence of the laws of the United States unless Congress has enacted the particular title into positive law. 1 U.S.C. § 204(a) (1995). “[T]he very meaning of `prima facie’ is that the Code cannot prevail over the Statutes at Large when the two are inconsistent.” Stephan v. United States , 319 U.S. 423, 426 (1943). Congress has not enacted Title 42 into positive law. When there is such a conflict, the version in the Statutes at Large, i.e., the one which appears at 108 Stat. 1796, 1946-50, must control. See , e.g. , American Bank & Trust Co. v. Dallas County , 463 U.S. 855, 864 n.8 (1983) (“the Statutes at Large prevail over the Code whenever the two are inconsistent”) (citations omitted); United States v. Walden , 377 U.S. 95, 98-99 n.4 (1963) (” `the Code cannot prevail over the Statutes at Large when the two are inconsistent’ “) (quoting Stephan , 319 U.S. at 426 ); see also United States Nat’l Bank of Oregon v. Independent Ins. Agents of Am., Inc. , 508 U.S. 439, 448 (1993).FN3 The error in the codified version of the Act was not the fault of Congress, but of the codifiers. Thus, the Act gave the district court authority to order the accused to undergo a blood test if the showing prescribed in 42 U.S.C. § 14011(b) was made.”

FN3. Accord Time Warner Cable v. Doyle, 66 F.3d 867, 878 n. 11 (7th Cir.1995), cert. denied, 516 U.S. 1141, 116 S.Ct. 974, 133 L.Ed.2d 894 (1996); Time Warner Entertainment Co., LP v. FCC, 56 F.3d 151, 193 n. 12 (D.C.Cir.1995), cert. denied, — U.S. —-, 116 S.Ct. 911, 133 L.Ed.2d 842 (1996); Preston v. Heckler, 734 F.2d 1359, 1368 (9th Cir.1984).

[U.S. v. Ward, 131 F.3d 335 C.A.3 (N.J.) (1997)]

Positive Law in Foreign Legal Encyclopedias

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Positive Law Positive Law in the World Legal Encyclopedia.
Positive Law Positive Law in the European Legal Encyclopedia.
Positive Law Positive Law in the Asian Legal Encyclopedia.
Positive Law Positive Law in the UK Legal Encyclopedia.
Positive Law Positive Law in the Australian Legal Encyclopedia.

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When starting research in the law of a foreign country it is often essential to have some sense of what publications are available and in what sources research is best conducted. The Encyclopedia has several Guides to Sources of Basic Legislation which describes resources in international and foreign law, including digests, legislation, codes and secondary sources. There is also a set of surveys of the legal systems of more than 100 jurisdictions, including history, major legal concepts and the structure of the court system.

Browse the American Encyclopedia of Law for Positive Law

Scan Positive Law in the appropriate area of law:

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Positive Law Positive Law in the Family Law Portal of the American Encyclopedia of Law.
Positive Law Positive Law in the IP Portal of the American Encyclopedia of Law.
Positive Law Positive Law in the Commercial Law Portal of the American Encyclopedia of Law.
Positive Law Positive Law in the Criminal Law Portal of the American Encyclopedia of Law.
Positive Law Positive Law in the Antritrust Portal of the American Encyclopedia of Law.
Positive Law Positive Law in the Bankruptcy Law Portal of the American Encyclopedia of Law.
Positive Law Positive Law in the Constitutional Law Portal of the American Encyclopedia of Law.
Positive Law Positive Law in the Tax Law Portal of the American Encyclopedia of Law.
Positive Law Positive Law in the and Finance and Banking Portal of the American Encyclopedia of Law.
Positive Law Positive Law in the Employment and Labor Portal of the American Encyclopedia of Law.
Positive Law Positive Law in the Personal Injury and Tort Portal of the American Encyclopedia of Law.
Positive Law Positive Law in the Environmental Law Portal of the American Encyclopedia of Law.

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Legal Issue for Attorneys

Law actually ordained or established, under human sanctions, as distinguished from the law of nature or natural law, which comprises those considerations of justice, right, and universal expediency that are announced by the voice of reason or of revelation. Municipal law is chiefly, if not essentially, positive; while the law of nations has been deemed by many of the earlier writers as merely an application of the law of nature. That part of the law of nations which rests on positive law may be considered in a threefold point of view: First, the universal voluntary law, or those rules which become law by the uniform practice of nations in general, and by the manifest utility of the rules themselves ; second, the customary law, or that which; from motives of convenience, has, by tacit but implied agreement, prevailed not necessarily among all nations nor with so permanent a utility as to become a portion of the universal voluntary law, but enough to have acquired a prescriptive obligation among certain states so situated as to be mutually benefited by it (1 Taunt. 241) ; third, the conventional law, or that which is agreed between particular states by express treaty, a law binding on the parties among whom such treaties are in force. 1 Chit. Com. Law, 28.

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This definition of Positive Law Is based on the The Cyclopedic Law Dictionary . This definition needs to be proofread..


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