KudoZ home » Spanish to English » Law/Patents

norma positiva

English translation: positive rule

Advertisement

Login or register (free and only takes a few minutes) to participate in this question.

You will also have access to many other tools and opportunities designed for those who have language-related jobs
(or are passionate about them). Participation is free and the site has a strict confidentiality policy.
GLOSSARY ENTRY (DERIVED FROM QUESTION BELOW)
Spanish term or phrase:norma positiva
English translation:positive rule
Entered by: Cecilia Olmos Herbin
Options:
- Contribute to this entry
- Include in personal glossary

17:01 Sep 6, 2001
Spanish to English translations [PRO]
Law/Patents
Spanish term or phrase: norma positiva
This term appears in an Argentine appellate brief, in which the appellant complains that the lower court is at fault for "la fundamentación vaga de la medida cautelar en sustitución de ***normas positivas*** que establecen la improcedencia de dicha base."

Does this mean "mandatory rules"?
Lee Penya
Local time: 11:59
"positive law" or "positive rules"
Explanation:
The term "positive law" is opposed to "natural law" (the set of universal and unchangeable rules which derive from the human nature itself, from God or from reasoning). Positive law is the set of rules governing a particular country at a particular time. Positive law originates from an authority who has been empowered to do so, such as Congress.

For example, the right to live is a "natural law" right, because it is inherent in every human being, it is a right every human being has just because of being human. This right may also be part of positive law ONLY IF it is included in a country's body of law by, say, the enactment of a statute or the decision of a judge. So, in a "positivist view", you have the right to live (and not to be killed) only because it is granted in the Constitution, or in a statute or a judge's decision.

In a Common Law country, positive law includes both statutes and judicial precedents (mainly). But Argentina is a Civil Law country, and is therefore governed by statutory law ONLY (with sove few exceptions). That is, a jugde has the obligation to apply statutory law (or "written law") when deciding a case, but he/she does not rely on judicial precedents. Judicial precedents are persuasive, but NOT mandatory in Argentina.

The appellant in you translation is arguing that the judge decided based on something vague (a "vague argument") instead of applying the positive law, that is, the written law, statutory law.

"Normas positivas" does not mean "mandatory rules" because, although they are mandatory, the emphasis is on the "written" or "statutory" nature of the law.
It does NOT mean "substantive" either, because it has nothing to do with them being accurate, or detailed.

You can check this page below for a more detailed explanation on Hans Kelsen (the Theory of Pure Law) and positivism:
http://www.xrefer.com/entry.jsp?xrefid=552595


Selected response from:

Cecilia Olmos Herbin
Local time: 14:59
Grading comment
4 KudoZ points were awarded for this answer

Advertisement


Summary of answers provided
na +3"positive law" or "positive rules"
Cecilia Olmos Herbin
na +3explanation
Patricia Lutteral
na -1positive or substantial rules
Henry Hinds


  

Answers


4 mins peer agreement (net): -1
positive or substantial rules


Explanation:
Or rules actually having some substance to them instead of merely a vague basis.


    Exp.
Henry Hinds
United States
Local time: 10:59
Native speaker of: Native in EnglishEnglish, Native in SpanishSpanish
PRO pts in pair: 26512

Peer comments on this answer (and responses from the answerer)
disagree  Cecilia Olmos Herbin: COH
54 mins
Login to enter a peer comment (or grade)

27 mins peer agreement (net): +3
explanation


Explanation:
Just to complement Henry's answer.
Argentine law system, unlike American, is based on Roman Law; that is, "derecho positivo", which means that everything has to be written in a code or an act to be applicable. Judges cannot rule by means of analogy.
To give a clear example: our very decent congressmen passed an act by which money laundering is a crime provided the money comes from drug dealing; as corruption, bribes, etc. were not specifically included, corruption-money laundering was not a crime. Another one: Internet fraud is not yet specifically included in the Penal Code, so it isn't a crime. (Common sense doesn't count, as you see)
In your case, it probably means that there is no positive rule that specifically states that in such and such case such and such actions must or may be taken.
Hope it helps, regards,

Patricia

Patricia Lutteral
Argentina
Local time: 14:59
Native speaker of: Spanish
PRO pts in pair: 505

Peer comments on this answer (and responses from the answerer)
agree  Cecilia Olmos Herbin: Sorry, but analogy CAN be used in Civil Law cases. Your examples belong to Criminal Law, where no analogy is allowe
35 mins
  -> The key word here is "written". And I didn't say Civil Law, did I?

agree  Andrea Wells: your explanation is great. Keep in touch!!
3 hrs

agree  bea0: Muy buena tu respuesta.
2 days 13 hrs
Login to enter a peer comment (or grade)

56 mins peer agreement (net): +3
"positive law" or "positive rules"


Explanation:
The term "positive law" is opposed to "natural law" (the set of universal and unchangeable rules which derive from the human nature itself, from God or from reasoning). Positive law is the set of rules governing a particular country at a particular time. Positive law originates from an authority who has been empowered to do so, such as Congress.

For example, the right to live is a "natural law" right, because it is inherent in every human being, it is a right every human being has just because of being human. This right may also be part of positive law ONLY IF it is included in a country's body of law by, say, the enactment of a statute or the decision of a judge. So, in a "positivist view", you have the right to live (and not to be killed) only because it is granted in the Constitution, or in a statute or a judge's decision.

In a Common Law country, positive law includes both statutes and judicial precedents (mainly). But Argentina is a Civil Law country, and is therefore governed by statutory law ONLY (with sove few exceptions). That is, a jugde has the obligation to apply statutory law (or "written law") when deciding a case, but he/she does not rely on judicial precedents. Judicial precedents are persuasive, but NOT mandatory in Argentina.

The appellant in you translation is arguing that the judge decided based on something vague (a "vague argument") instead of applying the positive law, that is, the written law, statutory law.

"Normas positivas" does not mean "mandatory rules" because, although they are mandatory, the emphasis is on the "written" or "statutory" nature of the law.
It does NOT mean "substantive" either, because it has nothing to do with them being accurate, or detailed.

You can check this page below for a more detailed explanation on Hans Kelsen (the Theory of Pure Law) and positivism:
http://www.xrefer.com/entry.jsp?xrefid=552595





    Argentinian English<>Spanish sworn legal translator.
    Second year Law School student, University of Buenos Aires
Cecilia Olmos Herbin
Local time: 14:59
Native speaker of: Native in SpanishSpanish
PRO pts in pair: 16

Peer comments on this answer (and responses from the answerer)
agree  Henry Hinds: Good explanation, but I think I said the same thing!
7 mins
  -> Thanks Henry!

agree  Patricia Lutteral: The same thing with more and more complicated words, you'll be a great lawyer! :-)
24 mins
  -> You think? Hope so!

agree  Camara: Way to go!
3 hrs
  -> Thank you Cámara!
Login to enter a peer comment (or grade)




Return to KudoZ list


KudoZ™ translation help
The KudoZ network provides a framework for translators and others to assist each other with translations or explanations of terms and short phrases.



See also:



Term search
  • All of ProZ.com
  • Term search
  • Jobs
  • Forums
  • Multiple search