To start talking about current law, it is necessary to know, first, what Law is. This set of norms and principles that help regulate human relations in a society is known as law. The State is in charge of regulating these norms and their content is created through the relations between people within a society in a place and a time.
From «ius» to Law
The word right comes from the Latin word “directus”, which means “the right thing”. At the same time, this noun derives from the verb “dirigere” which can be translated as to straighten, direct, lead directly or directly to a place…
But it is necessary to clarify that in Latin the term that expressed law as a conception of justice was “ius”, a term that evolved in our language to words such as jurist, legal, jurisprudence. According to various texts and manuals, it was not until the 15th century when Europe began to use “directum” to talk about this matter.
Being clear about what the law is, what it entails and its origin, we have to know that within this matter of knowledge there are different branches among which is the current law.
The definition of current law is very simple: it is the right that is in force. Although this definition should be expanded.
This right in force must be applied or exercised in a specific geographical area and the State takes it as mandatory. In addition, it does not make any kind of distinction between the population by race, sex, religion or sexual orientation. In conclusion: it consists of a series of rules that are found when applying the law at a specific time, which can be replaced, annulled or canceled while it is in force. We can say that it is the opposite of laws that are expired or that are repealed.
Positive law
But, on many occasions, the current law can be confused with the positive law. A very common mistake that in this article we are going to try to clarify so that you do not make it.
In order to establish these differences, in these cases, it is best to establish a definition:
Positive law contemplates the set of laws that have been drafted in any period of time. This means that it is active in the present, past and future.
To this is added that it has been drafted or created by legislators in order to establish the well-being of the inhabitants of a specific territory through the regularization of their coexistence.
Therefore, this type of right is applicable to the conditions of the moment while the current right has not been created for its fulfillment without objection.
Differences between current law and positive law
The current law: that norm that is adapted to a specific time and place and the public authorities declare it as mandatory. They only have one current app.
As an example: Royal Decree, decree law, regulations, Penal Code, Civil Code, labor, mining, agricultural regulations…
All these regulations are introduced into the bag of current law because its composition must be adjusted to changes and advances in political, social, economic and cultural matters. All of them legislative elements of a nation change over the years.
Positive law: it is the set of legal norms that really and effectively regulate the whole of a country at a certain historical moment.
Example: Spanish Constitution, promulgated in 1978.
But not only a current constitution is positive law. The Spanish Constitution of 1812, promulgated by the Cortes of Cádiz. why? because it is enough that these norms have been approved by the State and are binding in time and space and have helped coexistence between people.
Positive law is not always valid
Having seen all of the above, we could be assailed by the doubt that the current law is positive law. It is true. Any current right is positive at the time in which it is being applied and until it is abolished or repealed by another rule or law that eliminates it. Although its application makes its validity stronger and stronger.
But not all positive law is current law since, as we have seen previously, many territories have been governed by norms or Constitutions promulgated by politicians who subsequently lost their jurisprudence for different reasons. For example: after their independence, Latin American countries ceased to be governed by Spanish rules.
Duration of the current right
The current law replaces, worth the redundancy, the one that was in force in another time and opposes the one that happens to be repealed.
This legal order that remains in force covers the entire set of existing regulations that, for different reasons, historical moment and country or nation, are promulgated by the political class and declared as necessary or imperative.
All the regulations are regulated by the customary code that the public powers assume and admit. This means that everything depends on the social circumstances or the social norm that is generated at that moment.
Although it must be clarified that the validity of these precepts is given, in most cases, by assumptions that are modified or transformed by successive legislation over time. The duration of the current right is conditioned by a series of parameters or requirements that the law contemplates and can even determine this period of duration.
Characteristics of the current law
It is very important to know how to differentiate this right from others. Especially positive law. For this reason, we make this scheme where we present the main characteristics that will help you avoid falling into error:
- The time factor. Its validity is limited in execution and action. They depend on a specific time and a specific place.
- Not all current law is positive and not all positive law is current. Since positive law can be a set of rules that today do not apply. At the same time, the current law may not exist to regulate a situation and it is necessary to resort to the current one.
- Its validity depends on the requirements that it must meet, established by the regulations that govern it. On many occasions its validity is determined in the very promulgation of the norm.
- It is recognized by the State since it is created through the different bodies that make it up as political power through the chambers, in the case of a democracy.
- They are traditional laws or regulations, imposed by the legal order of a nation that are agreed upon through different social agreements.
The matter of law can be confusing, even entail certain difficulties in such a way that it makes us fall into errors that, a priori, should not be common. This is the case of current law that, on many occasions, can even be ambiguous and interpretable.
Quote
Establishing a good outline on the main characteristics of the subject, the definition, examples and comparisons, surely the concept of current and positive legislation has become clearer and why they should not be confused. But, to continue improving, surely this quote, pronounced by the French thinker and politician Montesquieu can help you understand it since he perfectly summarizes what the current law is:
«A thing is not just for the mere fact of being law. It must be law because it is fair”