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|Spanish to English translations [PRO]|
|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"?
|"positive law" or "positive rules"|
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:
Selected response from:
Cecilia Olmos Herbin
Local time: 14:59
|4 KudoZ points were awarded for this answer |
4 mins peer agreement (net): -1
27 mins peer agreement (net): +3
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,