KCLL Klues posted this Positive Law and other U.S. Code Mysteries a little while ago and it reminded me that some of my own readers are new to legal research and also curious about such things. What IS positive law anyway?
No, positive law isn’t law in your favor, but that’s not a bad guess. Nor is it law that says, “yup, it’s yours, all yours, and you can do what you want as long as you don’t scare the horses,” rather than those pesky “thou shalt NOT” laws. It’s also not the opposite of negative law!
(Just as “legal” isn’t really the opposite of “illegal” though we’ve come to accept it that way. It’s all legal on this legal research blog, and it’s all lawful too, but not all legal blogs behave lawfully.)
Positive law is a concept that law librarians teach law students and paralegals, and an important one at that, but we have a hard time explaining it to the novice, especially online.
It’s one of those legal concepts that is far easier to explain by showing, not telling, especially if one can do so in 4-dimensions (time is an important dimension to take into account when teaching the legislative process). With shelves of books that include bills, session law, and codes, it’s easy to show what positive law is. Of course, sweeping gestures work well in a library, but not nearly so well sitting at a computer screen, where all you’ll manage to do is to sweep that coffee mug off your desk.
The tougher questions students of the law ask about positive law are more along the lines of, “who cares?” or “why does it matter?”
If you are researching U.S. federal law, you probably should know which titles in the U.S. Code are positive law and which ones aren’t (and you should also know what a code is versus what session law is), but for all practical purposes, it won’t kill you, or your case, if you don’t know what positive law is.
Many lawyers live successful legal lives not knowing, let alone remembering, what their law school librarians told them about positive law. I always reminded my students that while I personally didn’t care if they knew, their future clients might care and even be a bit concerned if opposing counsel knew – and that one day it really may matter. If it was your client, or your lawyer, wouldn’t you want to be on the winning side of that one?
As Linus once remarked back in 1962, “Until it is demonstrated, one forgets the really great difference that exists between the merely competent amateur and the very expert professional.”