We explain what natural law is and the characteristics of this doctrine. Also, some examples and what positive law is.
What is Natural Law?
Natural law is called a doctrine of an ethical and legal nature that defends the existence of certain rights specific to the human condition that is, certain rights based on the very nature of the human being and which therefore would be inalienable. These types of rights would be universal, as well as prior to and superior to any other legal system.
At the same time, the natural law It is considered one of the sources of law together with custom (customary) and written law (positive), since their postulates are born together with the human being, and therefore are the basis of Universal Human Rights as we understand them today.
Natural law has ancient antecedents, in the philosophical explorations of classical Greece, especially Plato and Aristotle; but His first formations come from the Salamanca School during the Spanish Golden Age and were later taken and reformulated by theorists of the caliber of Thomas Hobbes, John Locke, Jean-Jacques Rousseau in their writings. The transition between the ancient aspects and modern natural law is constituted by the work of the Dutchman Hugo Grocio (1538-1645).
Even religious doctrines such as Christianity have points in common with natural law, in the sense that they admit in human beings “a law written in their hearts”, which in this case would have been dictated by God directly. In any case, these are entirely human laws and prior to any form of judicial organization or political regime.
Characteristics of natural law
Unlike positive law, which is written, natural law emanates from the human condition itself, which is why it does not require being based on any support, since it does not establish differences between the individuals it protects. There is no possible distinction in the application or defense of natural rights regardless of conditions such as ethnicity, nationality, religion, sexual orientation, etc.
The main theses of this doctrine are the following:
- Natural rights act as a supralegal framework, since their considerations of good and evil are universal.
- The content of natural law can only be accessed through reasoning.
- The law rests on morality.
- If any positive legal system contravenes the natural rights of human beings, it cannot be considered a true legal system.
Examples of natural law
Some examples of natural law are:
- Contemporary human rights No law on the planet can legally contravene human rights, such as the right to life, to education, to have a name and a nationality, to a fair trial in case of committing a crime or to legitimate defense.
- The Catholic commandments. At a time when the Catholic Church controlled the West legally and politically, it did so through its religious laws, which were considered natural human laws, that is, divine laws dictated by God in the very hearts of people.
- The divine laws of antiquity. When ancient cultures, such as the Hellenic, resorted to the laws of their gods, these were above Kings and other earthly considerations. For example, Zeus the Greek god protected messengers, and it was considered an affront to the Father God to kill anyone who brought bad news.
positive law
When talking about positive law, it refers to written law: that which appears in the Constitutions, ordinances and other textual bodies of law that were emanated by the respective authorities in consensus of the population they govern, which admits their supremacy and voluntarily submits to it.
The positive laws are dictated by the competent legislative bodies and they are what we commonly call “the law” or “the laws”, that is, a specific legal order for a population to govern their coexistence through it. The Magna Cartas, municipal ordinances, penal codes, are all examples of positive law.
