We tell you what natural law is, its history and characteristics, as well as its differences with positivism.
Hugo Grotius is the founder of natural law as a philosophical school.
What is natural law?
Natural law is a set of theories on law and justice that is inspired by natural law. These theories hold that there are certain principles that belong to law, which, if not enshrined in law, are not true law.
The natural law conception supports two theses simultaneously:
- A thesis that affirms that there are moral and justice principles that are universally valid and accessible to human reason.
- A thesis which states that a normative system cannot be qualified as legal if it contradicts these universal moral or justice principles.
Throughout history there have been different natural law conceptions. Thus, there were Greco-Roman, Stoic, and Christian natural law conceptions, among others.
Key points
- Natural law maintains that there is a set of universal rights, prior to, superior to and independent of positive law, which constitute the law and legitimize it.
- Natural law is a set of theories inspired by natural law.
- He works with two theses: one that affirms that there are moral principles and the other that defends normative systems based on these rights.
- It differs from legal positivism because the latter believes that law derives from human creations.
Characteristics of natural law
Natural law is a philosophical and legal current that has developed throughout history with various interpretations and approaches, but which shares certain fundamental characteristics:
- Foundation in natural lawNatural law is based on the idea of a “natural law” that is considered intrinsic to human nature and prior to any positive norm established by society or the State. This natural law is conceived as a set of universal and objective moral principles that govern human behavior and serve as the foundation of morality and law.
- Universality and immutability of principlesNatural law asserts that the principles of natural law are universal and applicable to all human beings, regardless of their culture, society or historical period. These principles are considered immutable and constant, not subject to arbitrary change.
- Inherent human rightsNatural law defends the existence of inherent and fundamental human rights that derive from natural law. These rights are considered inalienable, non-transferable and prior to any legal norm established by man.
- Criticism of legal positivismNatural law is often contrasted with legal positivism, a school of thought that holds that law is derived exclusively from written sources established by state authority. Natural law criticizes this view, arguing that positive laws must be consistent with the principles of natural law in order to be legitimate and fair.
- Emphasis on justice and equity. Natural law gives a central role to justice and equity as fundamental values in the development of legal and political systems. It seeks to achieve a balance between individual and community interests in order to promote the common good.
- Ethical and philosophical approachNatural law is characterized by its ethical and philosophical approach to the analysis of law and justice. It is based on rational argumentation and deductive reasoning to establish its principles and foundations.
History of natural law
Natural law, or the doctrine of natural law, has its roots in the Classical Age and maintained its relevance during the Middle Ages. However, When we speak specifically of the term “natural law,” we refer to its development and dissemination during the Modern Age, which spans from the beginning of the 17th century to the end of the 18th century.
The school of natural law is considered to have officially begun with the work De jure belli ac pacisby the jurist Hugo Grotius (1583-1645), published in 1625. However, the subsequent creation of great codifications, especially the Napoleonic one, marked a change towards greater respect for established laws and laid the foundations for what would be known as legal positivism, and with this the decline of natural law.
Historicism, especially legal historicism in Germany, was the school of thought that decreed the “death” of natural law. An emblematic landmark of this dissolution is found in the essay by Friedrich Hegel (1770-1831), On the different ways of treating natural law scientificallypublished in 1802. In this work, Hegel radically criticizes the philosophies of law that preceded him, from Hugo Grotius to Immanuel Kant (1724-1804) and Johann Gottlieb Fichte (1762-1814).
The label “natural law school” covered a diversity of authors and currents, including great philosophers such as Thomas Hobbes (1588-1679), Gottfried Leibniz (1646-1716), John Locke (1632-1704) and Immanuel Kant, who dealt, although not exclusively, with legal and political problems. Although some of them had opposing points of view, such as Locke and Leibniz, or Hobbes and Kant. There were also jurist-philosophers, such as Samuel Pufendorf (1632-1694), Christian Thomasius (1655-1728) and Christian Wolff (1679-1754). In addition, the author of the Social contractJean-Jacques Rousseau (1712-1778).
The term natural law comes from the Latin iuswhich means “right” and naturaliswhich refers to “nature”. These words are supplemented with the suffix –ismwhich means “doctrine.”
Natural law and positivism
Natural law and positivism are two philosophical currents in the theory of law that have different approaches to the nature and source of law. Their main differences are:
Natural lawIuspositivismArgues that law has an intrinsic basis in morality and justice. Argues that certain ethical and moral principles are universal and that law should be consistent with these principles. Argues that law is derived exclusively from rules and laws created by human authorities, such as legislators or established legal systems. Does not consider morality to be an inherent part of law. Postulates the existence of a “natural law” that is independent of human laws and is based on universal principles of justice. These principles are considered superior to laws created by humans. Argues that law and morality are separate entities. He argues that morality has no intrinsic role in determining law and that laws are valid simply because they have been enacted by competent authorities. He argues that there is a moral objectivity underlying law that allows judgments to be made about whether a law is just or unjust on the basis of universal moral principles. He focuses on authority and consent as the basis for the validity of law. A law is valid if it has been created in accordance with the established legal process. He considers ethical and moral norms to be superior to positive laws (created by the legislator) and can serve as a basis for questioning or invalidating laws that contradict these principles. He argues that there is no intrinsic moral judgment about the justness of a law. A law can be considered valid even if it is perceived to be immoral from an ethical perspective.
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References
- Bobbio, N. (1967). Hegel and natural law. DIÁNOIA Journal of Philosophy, 13(13), 55-78.
- Buckle, S., “Natural Law” in Singer, P. (ed.), Compendium of Ethics, Alianza, 1995.
- García-Huidobro, J. (2002). Philosophy and rhetoric of natural law (p. 156). UNAM, Institute of Legal Research.
- Ordóñez Noriega, Francisco, The Foundation of Natural Law, Kelly Editorial, Bogotá, 1967.