Natural Law vs Positive Law

Introduction

In the study of law, two fundamental concepts that are frequently explored are Natural Law and Positive Law. Although both play crucial roles in understanding the laws that govern our societies, their origins, justifications, and applications differ significantly. This blog seeks to explore these differences, offering a clear view of each and how they interrelate and contrast with each other.

What is Natural Law?

Natural Law is based on the idea that rights and legal principles are inherent to human nature; that is, they can be discovered through reason and exist independently of human actions. This set of rights would be universal, immutable and eternal. The philosophy behind Natural Law holds that these rights are evident through human reason and do not require enactment to be recognized. Philosophers such as Aristotle, Thomas Aquinas, and more recently John Locke and Thomas Jefferson, have been defenders of Natural Law, arguing that principles such as equity, morality, and certain basic human rights exist naturally and must be protected by laws. human laws.

Principles of Natural Law:

Universality: Applicable everywhere and for all humans.
Immutability: Does not change over time.
Independence: Exists with or without recognition by state laws.

What is Positive Law?

On the other hand, Positive Law refers to the set of laws that are established and promulgated by the state or a competent authority. These laws are not universal; They vary from place to place and from time to time, depending on the specific values, needs and conditions of a particular society. Positive Law includes written laws such as constitutions, legislations and regulations, and is based on the premise that laws must be obeyed because they are legitimate, that is, because they derive from a recognized authority and are formally registered.

Characteristics of Positive Law:

Relativity: Varies depending on society and historical context.
Change: Evolves with changes in society and values.
Authority: Derived from government entities and must be obeyed due to its formal legitimacy.
Comparison and Contrast

The main point of contrast between Natural Law and Positive Law is its origin and justification. While Natural Law is considered inherent and discovered through reason, Positive Law is created and enacted by human beings and their governmental institutions. Furthermore, while Natural Law is static and universal, Positive Law is dynamic and relative, adapting to the changing circumstances and needs of society.

Another important contrast is how each type of law perceives morality and justice. Natural Law is deeply intertwined with intrinsic moral concepts; believes that unjust laws are not laws at all. On the other hand, Positive Law focuses more on order and social organization, and a law can be considered legitimate if it has been established correctly, regardless of its justice from a moral point of view.

Conclusion

The debate between Natural Law and Positive Law is central to understanding how laws are formulated and justified within any society. While Natural Law appeals to universal and eternal principles of justice and morality, Positive Law focuses on the creation of norms that regulate behavior based on the contemporary needs and values of the community. In practice, a combination of both types of law is usually necessary: Natural Law to question and guide the morality of laws, and Positive Law to establish specific and practicable orders.