We explain what natural law is and the main characteristics of this doctrine. In addition, examples and what is positive law.
What is natural law?
It is called natural right to a doctrine of ethical and legal type that defends the existence of certain own and particular rights of the human condition , that is, certain rights based on the very nature of the human being and that would therefore be inalienable. These types 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 (positive) law, since its 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 an ancient background, in the philosophical explorations of classical Greece, especially Plato and Aristotle; but his first formations come from the School of Salamanca 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 his writings. The transition between the ancient slopes and modern iusnaturalism is the work of the Dutchman Hugo Grocio (1538-1645).
Even religious doctrines such as Christian have points in common with iusnaturalism, in the sense that they admit in human beings “a law written in their hearts”, which in this case would have been directly ruled by God. In any case, these are entirely human laws and prior to any form of judicial organization or political regime.
Characteristics of natural law
Unlike the positive law, which is written, natural law emanates from the human condition itself, so it does not require 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 by reasoning.
- The law rests on morals .
- If any positive legal system contravenes the natural rights of the human being, 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, education , to have a name and a nationality, to a fair process in case of committing any crime or a legitimate defense.
- The catholic commandments . At some time when the Catholic Church legally and politically controlled the West, it did so through its religious laws, which were considered as natural laws of the human, that is, divine laws dictated by God in the very heart of the people.
- The divine laws of antiquity . When ancestral cultures, such as Hellenic, turned to the laws of their gods, they were above Kings and other earthly considerations. For example, Zeus the Greek god protected the messengers, and it was considered an affront to the Father God to kill the one who brought bad news.
When it comes to 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 consensus authorities of the population they govern, which admits their supremacy and He voluntarily submits to her.
The 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 Magnan Letters, the municipal ordinances, the penal codes, are all examples of positive law.