The relationship dynamics between legal positivism
and the divisions of law, analyzed from a systemic perspective
Lecturer Claudiu Ramon D. BUTCULESCU
This a rticle is studying the dyn amics of the relat ionship be tween legal positivism
and the two division s of law, resp ectively private law an d publ ic law. Leg al posi tivism,
envisio ns conce pts of huma n interven tion in the creation and a pplicati on of the law, and so
it fin ds appli cation in both public law and priva te law. However, in priv ate law , there are
several princi ples which can be dedu ced from the d octrine o f natura l l aw, such as
substit ution, rev ersibility and ot hers. To the contrary, in public law , lega l positivism is all
present , mani festing itself in all its bra nches. It is not, however, an exclusive presence,
becau se there is a ba lance between natu ral law and legal posit ivism in each of the divisi ons
of law . The two o rientation s of law, na mely na tural law and legal positiv ism coexist in each
of the division s and b ranches o f the law, bu t with a di fferent stru cture, dynamic or sta tic,
depen ding on speci fic b ranches of law. This p aper presen ts in a n analy tical man ner, the
static a nd dynamic manifesta tions of legal positivi sm withi n th e framework of the two
divisi ons of law, namely priva te law and public law .
Keywords: legal posit ivism; public la w; priva te law; general syst ems theo ry.
JEL Cla ssification: K10, K40
The system of law can be envisioned as a subsystem of social normative
system, along with the moral system, legal cultures system and others.
To be able to observe how legal positivism is manifested in the two major
divisions of law, i.e. in the public law and the private law, it is necessary to first
briefly explain natural law and legal positivism from a systemic perspective,
related to the system of law.
Natural law is based on the idea of transcendental law, whose aprioristic
values are applicable to state authorities, while in legal positivism is essential the
This article w as submitt ed to 6th International Conference “Perspectives of Business Law in the
Third M illennium”, 25 -26 November 2016, the Bucharest University of Economic Studies,
Claudiu Ramon D. Butculescu - „Acad. Andrei Rădulescu” Legal Research Institute, Romanian
Academy, Spiru Haret University, Bucharest, but firstname.lastname@example.org