1. What is positive law?

2. Substantive v. Procerdural law

3. Public v. Private law


What is positive law?

Not:

1. The laws of nature, or

2. Religious law, or

3. Moral law.

Instead (provisionally & superficially):

Positive law is the law of the courts.

[Top]


Substantive v. Procedural law


Basically: the rules giving the content of legal rights and duties v. the rules of their enforcement

An e.g.: the offence of assault.

The substantive question:

What must be proven if A is to be convicted of assault?

Two procedural questions:

Who has to prove that A assaulted B; that is, who bears the burden of proof?
How well do they have to make their case; that is, what is the standard of proof?

 

[Top]


3. Public v. Private law


The heart of the distinction lies in the relationship each domain takes as its object.

1. Public: the state and the citizen. E.g. constitutional law, criminal law.

2. Private: citizens among themselves. E.g., contract law, tort law.

 

An e.g., criminal v. tort law.

Suppose that Jones strikes Smith without Smith's consent. Jones commits both the crime of assault and the tort of battery.

The conceptual distinction between public and private law is reflected in two institutional distinctions.

 

1. In procedure:

R. v. Jones: The Crown prosecutes Jones.

Smith v. Jones: Smith brings suit against Jones.

 

2. In the outcome:

If the Crown is successful, Jones is convicted and will be punished.

If Smith is successful, Jones is held liable, and Smith will be compensated.

[Top]
[Back to Overheads]