The term ‘civil law‘ denotes the law of the land. It is termed civil to mean the law of the civitas or State. The name is derived from the jus civil of the Romans. That was the law peculiar to a particular State, e.g., Rome. Holland uses the term “positive law”.
He observes that “a law, in the sense in which that term is employed in jurisprudence, is enforced by sovereign political authority. It is thus distinguished not only from all rules which, like the principles of morality and the so-called law of honour and of fashion are enforced by an indeterminate authority, but also from rules enforced by a determinate authority, which is cither, on the one hand, superhuman, or, on the other hand, politically subordinate. In order to emphasize the fact that laws, in the strict sense of the term, are thus authoritatively imposed, they are described as positive law.”
According to Hobbes, positive laws are the laws which have not been from eternity but have been laws by the will of those that have had the sovereign powers over others.
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Salmond does not favour the use of the term ‘positive’ law. He observes that “the term civil law, as indicating the law of the land, has been partially superseded in recent times by the improper substitute ‘positive’ law.
Jus positivism was a title invented by medieval jurists to denote law made or established (postium) by human authority, as opposed to the jus natural, which was uncreated and immutable. It is from this contrast that the term positive derives all its point and significance.
It is not permissible, therefore, to confine positive law to the law of the land. All law is positive that is not natural. International law, for example, is a kind of jus positivism no less than the civil law itself.”
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Salmond also discourages the use of the term municipal law for civil law as he regards it inappropriate having regard to the modern conception of the adjective municipal as relating to a municipality or borough.
