The relationship dynamics between legal positivism and the divisions of law, analyzed from a systemic perspective

• Author: Claudiu Ramon D. Butculescu
• Position: Legal Research Institute, Romanian Academy, Spiru Haret University, Bucharest
• Pages: 98-102

The relationship dynamics between legal positivism

and the divisions of law, analyzed from a systemic perspective

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Lecturer Claudiu Ramon D. BUTCULESCU

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Abstrac t

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

1. Introduction

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

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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,

Bucharest, Romania.

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Claudiu Ramon D. Butculescu - „Acad. Andrei Rădulescu” Legal Research Institute, Romanian

Academy, Spiru Haret University, Bucharest, but culescu@yahoo.com