We explain what natural law is and the main characteristics of this doctrine. In addition, examples and what is positive law.
Natural law is prior to and superior to any other legal system.
What is natural law?
A natural right is a doctrine of an ethical and juridical type 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 being and that would therefore be inalienable.
This type of rights would be universal, as well as prior to and superior to any other legal system.
At the same time, natural law is considered one of the sources of law, along with custom (customary) and written law (positive), 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 ancient antecedents, in the philosophical explorations of classical Greece, especially Plato and Aristotle; but its 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 slopes and modern jusnaturalism is the work of the Dutchman Hugo Grotius (1538-1645).
Even religious doctrines such as Christianity have points in common with iusnaturalism, in the sense that they admit in human beings “a law written on their hearts”, which in this case would have been dictated by God directly. In any case, these are entirely humane laws, prior to any form of judicial organization or political regime.
It can serve you: Criminal Law.
Characteristics of the natural right
Unlike the positive right, which is written, the natural right 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 defence 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 the natural right can only be accessed through reasoning.
- Law rests on morality.
- 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, the right to education, the right to a name and nationality, the right to a fair trial in the event of committing a crime or the right to self-defence.
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 regarded as natural human laws, 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, resorted to the laws of their gods, they were above Kings and other earthly considerations. For example, Zeus the Greek god protected messengers, and it was considered an affront to God the Father to kill anyone who brought bad news.
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 to which they govern, which admits its supremacy and 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 legal order determined for a population to govern its coexistence through it. Magna Carta, municipal ordinances, penal codes are all examples of positive law.