We explain what natural law is and the characteristics of this doctrine. Also, some examples and what positive law is.
What is natural law?
It is called a natural right to a doctrine of an ethical and legal nature that defends the existence of certain rights proper and particular to the human condition, that is, certain rights based on the very nature of the human human being and that therefore they would be inalienable. This type of rights would be universal, in addition to previous and superior to any other legal system.
At the same time, natural law is considered one of the sources of law, together with custom (customary) and written law (positive), since its postulates are born together with the human being, and therefore are the basis of the 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 its first formations come from the School of Salamanca during the Spanish Golden Age, and were later taken up 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 Grotius (1538-1645).
Even religious doctrines like the Christian one 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, it is about laws entirely human and prior to any form of organization judicial or political regime.
Characteristics of natural law
Unlike positive law, which is written, natural law emanates from the human condition itself, so it does not need to be 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 about good and evil are universal.
- The content of natural law can only be accessed through reason.
- The right rests on the moral.
- If any positive legal order violates the natural rights of the human being, it cannot be considered a true legal order.
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 process in case of committing a crime or to a legitimate defense.
- The Catholic commandments. At one time when the Catholic Church legally and politically controlled the West, it did so through its religious laws, which were considered natural human laws, that is, divine laws dictated by God in the very heart of the 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 the messengers, and it was considered an affront to God the Father to kill the one who brought bad news.
Positive law
When speaking of positive law, it refers to written law: that which appears in the Constitutions, ordinances and other textual bodies of law that were issued by the respective authorities in consensus of the population they govern, which admits its supremacy and he voluntarily submits to it.
Positive laws are dictated by the competent legislative bodies, and 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 Cartas Magnas, municipal ordinances, penal codes, are all examples of positive law.