Natural Law

We tell you what natural law is, its history and characteristics. Also, its difference with legal positivism.

What is natural law?

Natural law is a set of theories about law and justice that is inspired by natural law. These theories maintain that there are certain principles that belong to the law that, if it does not enshrine them, it is not true law.

The natural law conception supports two theses simultaneously:

• A thesis that affirms that there are moral principles and justice that are universally valid and accessible to human reason.
• A thesis that affirms that a regulatory system cannot be classified 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.

Characteristics of natural law

Natural law is a philosophical and legal current that has developed throughout history with various interpretations and approaches, but that shares certain fundamental characteristics:

• Foundation in natural law. Natural 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 principles. Natural law affirms that the principles of natural law are universal and applicable to all human beings, regardless of their culture, society or historical era. These principles are considered immutable and constant, not subject to arbitrary change.
• Inherent human rights. Natural 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 positivism. Natural law is usually opposed to legal positivism, a current that maintains that law is derived exclusively from written sources established by state authority. Natural law criticizes this view, arguing that positive laws must be in line with the principles of natural law to be legitimate and just.
• 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 interests and those of the community to promote the common good.
• Ethical and philosophical approach. Natural law is characterized by its ethical and philosophical approach in 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 remained relevant throughout the Middle Ages. However, When specifically speaking of the term “natural law,” reference is made to its development and diffusion during the Modern Age, which spans from the beginning of the 17th century to the end of the 18th century.

It is considered that the school of natural law officially began 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 current of thought that decreed the “death” of natural law. An emblematic milestone 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 “school of natural law” encompassed 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 opposite points of view, such as Locke and Leibniz, or Hobbes and Kant. There were also jurists-philosophers, such as Samuel Pufendorf (1632-1694), Christian Thomasius (1655-1728) and Christian Wolff (1679-1754). Furthermore, the author of the Social contractJean-Jacques Rousseau (1712-1778).

The term natural law comes from Latin iuswhich means “right” and naturaliswhich refers to “nature.” To these words the suffix is ​​added –ismwhich means “doctrine.”

Natural law and positivism

Natural law and positivism are two philosophical currents in legal theory that have different approaches to the nature and source of law. Its main differences are:

Natural Law	Juspositivism
He maintains that law has an intrinsic basis in morality and justice. It argues that certain ethical and moral principles are universal and that law must be in line with these principles.	It maintains that law derives exclusively from norms and laws created by human authorities, such as legislators or established legal systems. It does not consider morality as an inherent part of the law.
It 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 the laws created by human beings.	He maintains 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 maintains that there is a moral objectivity that underlies the law and that allows judgments to be made about whether a law is just or unjust based on universal moral principles.	It focuses on authority and consent as the basis of the validity of the law. A law is valid if it has been created in accordance with the established legal process.
Considers that ethical and moral norms are superior to positive laws (created by the legislator) and can serve as a basis for questioning or invalidating laws that contradict these principles.	He maintains that there is no intrinsic moral judgment about the justice of a law. A law can be considered valid even if it is perceived as immoral from an ethical perspective.

References

• Bobbio, N. (1967). Hegel and natural law. DIÁNOIA Philosophy Magazine, 13(13), 55-78.
• Buckle, S., “Natural Law” (1991) in Singer, P. (ed.), Compendium of Ethics, Alliance, 1995.
• García-Huidobro, J. (2002). Philosophy and rhetoric of natural law (p. 156). UNAM, Legal Research Institute.
• Ordóñez Noriega, Francisco, The foundation of natural law, Kelly Editorial, Bogotá, 1967.