Iusnaturalismo is a current of thought that is based on the idea that rights and norms have a natural origin and are inherent to the human being.
Iuspositivism is a current of thought that is based on the separation between morality and law. From this point of view, there are only rules created by man and mediated by the state.
The difference between iusnaturalismo and iuspositivismo lies in the origin of the law and the norms. For natural law the origin is natural, it is given by the fact of being human, while for iuspositivism the right is created by man.
| Iusnaturalism | Iuspositivism | |
|---|---|---|
| Definition | Legal and philosophical doctrine that establishes the universality of rights, depending on their metaphysical or natural origin. | Philosophical and legal doctrine that establishes the origin of law in the sovereign. |
| Origin | XV century, School of Salamanca, Spain. | 17th century, Historical School, Germany. |
| Characteristics |
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Index
What is natural law?
Natural law is a philosophical doctrine applied to Law, which affirms that rights have an intrinsic origin to the human being. This means that they come naturally, either because they come from a rational or divine source.
For this reason, natural law raises the universality of rights above the opinions of the State, since if their origin is natural, then it is not mediated by human instances.
Natural law appeals to goodness, ethics, morality and reasoning as qualities proper to human beings so that they can distinguish between good and bad. In this way, the idea of a social order regulated by universal norms, known to all members of society, would materialize.
Characteristics of natural law
These are some characteristics of natural law:
Poses a natural origin of the rights of individuals
For natural law, rights have a metaphysical source, either because they are naturally given to humanity or because they come from divine instances.
Rights are given to everyone equally, as they are universal
Therefore, all people know them or can deduce them with their reasoning.
Assume that all people will act righteously
That willingness to act from the good is what will regulate human doing, beyond the provisions or laws created by man.
For the law to work, it must also rest on morality
In this sense, natural law states that each person can elucidate good from evil.
Nothing is above natural and universal laws
If natural rights are not considered by positive law in its legal system, then the latter has no validity.
Origin of natural law
Although the first modern natural law theses began to be raised between the 15th and 17th centuries in the School of Salamanca (Spain), the reality is that the Greeks and the Romans had made similar questions about the existence of laws with universal scope.
In this sense, Plato had proposed in his work Republic and laws (4th century BC) the existence of a natural law based on human reasoning. On the other hand, the Roman jurist Marco Tulio Cicero (30 BC), supported the idea of a common right to all human beings, and that therefore, had a universal scope.
What is iuspositivism?
It is a philosophical doctrine that raises a separation between morality and law. Iuspositivism considers laws as a set of norms created by man and managed by the State, which is the guarantor of their compliance. This makes them valid beyond any transcendental or metaphysical order or consideration.
Therefore, the ultimate object of iuspositivism is the law itself and it considers all laws objectively. Consequently, there are no more or less strict or more or less fair laws, since they are devoid of interpretation.
The separation between morality and law raised as a core issue in iuspositivism has to do with the conception that morality is unilateral and subjective. It is up to each individual, their beliefs and interpretations to decide what is correct or not, and this only serves to regulate their own behavior.
For its part, the law is bilateral, since it challenges the individual in relation to another (another individual, institutions, society, etc.).
Morality is autonomous insofar as it has to do with a personal conception that, in turn, depends on reasoning. The law implies a series of norms that must be fulfilled beyond one’s own beliefs and that are administered by a legislator, who is a third party with an objective assessment of the laws.
Characteristics of iuspositivism
These are some essential characteristics of iuspositivism:
Rejects the idea of a link between morality and law
Morality is subjective, individual and autonomous, the laws are objective and mandatory.
Laws are rules created by human beings
For positive law, norms are the expression of the sovereign and are regulated by the State.
The right is determined by the circumstances of each State
According to iuspositivism, the law cannot be based on universal values since each State has its own historical, political and social context.
The laws of positive law are of a coercive nature
That is, they may involve the use of force, in turn protected by the legal framework.
It is imperative
The sovereign abides by the laws because he knows that if he does not do so, he will have to face formal, not divine, laws.
Origin of iuspositivism
The formal approaches to iuspositivism have their origin in the nineteenth century in Europe, specifically in the German Historical School, a legal doctrine that affirmed that the law is linked to the origin of peoples. To this is added the positivist current that promoted the separation between science and metaphysics.
It was the entry into force of the Napoleonic Civil Code, in France, which ended up systematizing and influencing the European legal system. In this instrument, published in 1804, all the laws foreseen for different situations were organized for the first time, and the role of the judge is established as a neutral actor whose job is to apply the rules, without interpreting or subjectivizing them.
Iusnaturalism, iuspositivism and human rights
There is some controversy about the role of natural law and iuspositivism in relation to human rights. On the one hand, natural law does not take into account positive laws, but is established in its metaphysical origin, therefore, all people have universal rights. While for iuspositivism, rights are only such a thing if they are established in the legal system of a country.
For this reason, the Universal Declaration of Human Rights, promulgated in 1948, avoided justifying the origin of said order. At that time, the priority was to ensure the protection of all people to prevent a repeat of the injustices that took place during the two world wars, not to explain the origin or source of these rights.
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