Natural law: It begins with the premise that all of our rights come from God or nature and are inherent to our being. Positive law: It believes that our rights are. What we may be more sure of is the relation of our discourse and of the definition. eighteenth century, natural law (or perhaps we should say the law of nature). defines the area to which natural law is external. The difference between positive and natural law, thus drawn, is relative. A rule or an institution may be positive.
The arguments has always centered on the validity or the legitimacy of a law.
The questions have always been; what makes a valid law? What is a legitimate source of law? Of what effect is the content of a law to its validity, and, or general acceptance? Or posing the question more directly; which is more important to the question of legitimacy of a law; its source? This term paper will attempt a comparison of the two theories of law, explain and differentiate between positivism and natural law and how these schools of thoughts perceived the meaning, function and purpose of law and ascertain whether there exist any points of convergence.
Natural law Natural law theory is a philosophical and legal belief that all humans are governed by basic innate laws, or laws of nature, which are separate and distinct from laws which are legislated.
The position of the natural law theorists on the question of what is lawis summarized by the following statement of Cicero in the 1st Century B. And it does not lay its commands or prohibitions upon good men in vain, though neither have any effect on the wicked. It is asin to try to alter this law, nor is it allowable to attempt to repeal any part of it, and it is impossible to abolish it entirely.
We cannot be freed from its obligations by Senate or people; we need not look outside ourselves for an expounder or interpreter of it.
And there will not be different laws at Rome and at Athens, or different laws now and in future, but one eternal and unchangeable law will be valid for all nations for all times, and there will be one master and one ruler, that is God over us all, for He is the author of this law, its promulgator, and its enforcing judge. The laws arise through the use of reason to analyze human nature and deducing binding rules of moral behavior.
This theory is built on the idea of perfect law based on equity, fairness, and reason, by which all man-made laws are to be measured and to which they must as closely as possible conform.
Natural law theory has heavily influenced the laws and governments of many nations, including England Magna Carta and the United States Declaration of Independence It has also informed the publications of international legal instruments like the Universal Declaration of Human Rights and African Charter on Human Rights Positive law Positive law is law made by human beings.
Specifically, positive law may be characterized as law actually and specifically enacted or adopted by proper authority for the government of an organized society.
A body of man-made laws consisting of codes, regulations, and statutes enacted or imposed within a political entity such as a state or nation. AbiolaSanni, OAU Press Ltd 2 According to the legal positivists, law is only positive law; that is statute law and such customary laws as recognized by the state.
Positive law sets the standards for acts that are required as well as those that are prohibited and penalties are usually prescribed for violation of positive law.
Those who are physically present where the positive laws have governing power are typically required to obey such laws. The positivist is ever looking for the written or actually enforced factual decisions of the will which converts potential norms into actual norms.
He is concerned with the formal origin of law, with the source of the norms and its manner of formation, not with its content.
Because ideas have a universal force, that is, they apply to everyone, and when a person understands this reality and ceases to interpret them individualistically, he is then in a position to respect what they enjoin for the common good, even if this is not in his interests.
We could here recall an incident preserved by Plutarch. The Athenians then told him to reveal it only to Aristides whom they trusted so that they could examine it together.
What was Themistocles' idea? Since it now seemed that the danger from the Persians had passed, they should burn the ships of the other Greek cities so that Athens would remain an all-powerful naval power. Aristides reported to the Athenians that he had never heard an idea more beneficial to the city — or more unjust. The Athenians then ordered Themistocles to abstain from the implementation of his idea. Unfortunately, it is only rarely and in individual instances that men are truly social.
Most of the time, they are characterised by an anti-social attitude concealed by an outer sociability.
As Ioannis Zisis says, there is "a social organisation of anti-sociability" [iv] in a society which is fundamentally alienating and competitive. What is the practical benefit of these thoughts? Up to the point where Positive Law contains principles of Natural Law, there seems to be no problem. The problem begins to appear when Positive Law that is, lex lata is cut off from the abstract moral principles of natural law through the gradually increasing estrangement of the structure and direction of the ruling power from the popular mandate, or, worse, from the common good.
We must accept that usually a subversion of principles does not occur out of the blue. Anti-social power does not increase instantaneously, but by degrees. No overthrow of social balances occurs suddenly without prior preparation.
THE ROLE OF THE LAW AND THE RELATION BETWEEN POSITIVE AND NATURAL LAW
Men are usually enticed by values which are interpreted individualistically such as freedom and by the 'substitutes' with which they are supplied provisionally, and for that reason they do not interest themselves in those barely perceptible and gradual qualitative changes by which they are not directly affected.
However, these small - seemingly 'insignificant' - interpretative changes are agents of the accumulation of power by those who seek them and may be averted peacefully only when the power of enforcement is still inadequate. In this critical period of time, understanding on the part of society and its 'moral and political' preparedness to reject what goes against the individual and society are of great importance.
But, on the one hand, complacency, with the inertia which accompanies it, and the expectation of personal benefit, on the other, have always been a support for distortions of power and, thus, the responsibilities of societies themselves, in spite of the fact that they do not admit this. These scarcely perceptible steps towards the subversion of principles of law may initially start out from a field of distortion of interpretation of the principles of law and justice, such as freedom, equality, individual development, about which no one cares, since the issue of principles in a period of prosperity seems a matter of indifference, and perhaps an annoyance, when the model of human life is only or by any means individual material prosperity.
This, when it becomes surplus to needs as in the case of excessive concentration of moneycan no longer be based on these principles. For example, how does the principle of equality serve the desire for needless economic development or for over-consumption or for social superiority?
Naturally, at the ultimate point of need, for example, in conditions of starvation, there is an accord and coincidence of the moods of the crowd, but that occurs at the level of instincts and the need for instinctive collectivity which is protective for the individual. However, this is not the true sociability of democracy.
Sociability is understanding and self-initiated responsibility as an element of freedom. The interpretation of freedom as irresponsibility which is the prevailing interpretation is as anti-social as it is foolish.
Self-initiated responsibility must be a constituent part of democracy and not unaccountable 'liberty'. The element of self-initiation shows that responsibility is not imposed from without and thus freedom is retained - and that is also a necessary constituent of democracy.
The fact, however, is that for the present, man is not mobilised in good time and before the visible results, because he has no vision and inspiration.
Visions for the many are totally obscure or so closely tied up with the desire for material prosperity that when this is fulfilled, man remains void of vision and inspiration for life.
It must be understood that concepts are not a theoretical construct which serves us in an instrumental way in our pursuits by providing moralistic excuses. Furthermore, no theory is valid unless it is an evolutionary part of life.
We would stress the 'evolutionary', because there also is the opposite, which, however, destroys life, such as, for example, power as a selfish imposition of strength which is not true governance destroys social and individual life, although it is an animalism as part of life, an animal characteristic which we clearly encounter in nature, and, consequently, is a part of life, the predominance of which, however, must be surpassed.
This vision and inspiration exists in Natural Law. How this will be interpreted or whether someone arbitrarily undertakes its representation is an issue which must be dealt with by self-initiated responsibility and the preparedness of men and their society. One thing which is certain is that in each case of inaction, refusal, and inability to understand, the abuse of power lurks. Voluntary responsibility also leads to preparedness, otherwise preparedness on its own is competitive and without vision.
Focusing on causes, to sum up, leads to timely apprehension and reaction. Otherwise, the reaction is inappropriate as regards timing, and ineffectual. The abrogation of principles of Natural Law already legislated 1. Undefined principles There is not only the case of those principles of Natural Law which are unknown, or, even if known, are still unintelligible.
To the extent that the abstract principles of Natural Law are undefined or capable of a host of definitions, a double problem arises as to: It is here that the principle difficulty in the interpretation of Natural Law lies. A rational judgement is needed as to the real possibilities of man's approaching the interpretatively absolute.
Since the answer can only be an honest admission of man's inability to approach the absolute, what is required of each of us is a modesty in interpretation, and a systematic 'serving' of the principles of Natural Law through intensive dialogue. In no circumstances, however, can we be deprived, because of the difficulties, of this source of inspiration and of the great principles which relate to the Common Good, which has been both the cause of all positive individual and social developments, and the concern of religions and major social movements, regardless of their distorted interpretation and implementation.Positive Law v. Natural Law [Introduction to Common Law]
In the last analysis whatever good has been contained in Positive Law has been based on principles of Natural Law. The legislated principles of Natural Law The truth is that, in contemporary societies, Natural Law is not entirely undefined. Modern constitutions, as fundamental laws, contain a host of its principles, such as human dignity and the value of man. Consequently, if these principles are suddenly abrogated - whether directly or indirectly — by interpretations which restrict them or reverse them, we must take the view that the new law even if this is a constitution which by a revision abrogates these principles violates these higher principles, whether these are still contained in the constitution or have been rescinded.
In this case, moreover, we cannot maintain that Natural Law is unknown and undefined, since it was already contained in the constitution, and that its abrogation constitutes a social involution or cultural degradation - and anyway we cannot regress from these principles. The interpretation of such principles is subject to evolution, but this cannot contract their content or their universality, which would be contrary to democracy.
If the personal development of the individual, for example, as an individual right means that someone can gain so much power that it permits him to use it at will against society and individuals, this can only be a distortion by interpretation which without due form turns freedom into unaccountability, which abolishes the freedom of others, and, consequently, democracy.
In other words, it is unsound for any constitutional provision to be cut off from the provisions of the constitution as a whole, because in this way distorting emphasis on the interpretation of a certain principle contrary to the content of the other principles, as, for example, of freedom against the welfare state, is being allowed.
And, naturally, the checks themselves which must be applied may, in their turn, be turned into lawlessness. The difficulty is unavoidable, and for that reason social maturity over the evolving process of democracy is called for. Such a warped interpretation in effect accepts the animal principle that only the one who can survives, or, in other words, the law of the fittest.