Natural Law vs. Legal Positivism: Core Jurisprudence Concepts
In this question, we are dealing with the two classical classifications of legal theory: Natural Law tradition and Positivism. The main discussion between them is whether the law is linked to morals or not. Of course, there are more points of view that address this issue and are not strictly naturalist or positivist, but rather a nuanced perspective between black and white. However, it is said that these two are the most important and form the basis of the rest.
Natural Law Tradition
On the one hand, the Natural Law tradition defends the existence of a set of universal (above any legal, geographical, political, economic, or social man-made laws), non-written, and eternal principles of human conduct based on morals that are discovered by men via reasoning. As Thomas Aquinas stated: « the law is the dictate of right reason ».
This doctrine has its origins in Ancient Greece, with figures such as:
- Plato
- Aristotle
- The Stoics
Subsequently, Christianity also adopted this theory through the figures and work of Saint Augustine and Saint Thomas Aquinas (Classic Natural Law), and it was the only one accepted until the 18th Century. However, Natural Law did not disappear. In fact, in the 20th Century, it became popular again after the emergence of the question of whether totalitarian laws should be followed.
Legal Positivism
On the other hand, Positivism can be defined as the branch of legal theory whose objective is to demonstrate that laws and morals are separate. For those who agree with this position, the law is a set of compulsory rules created by certain organs that, in a given society, have the competence and power to do so.
Some of the characteristics of this doctrine include:
- The law must always be written.
- The consideration of the law’s validity, ignoring its content.
- The importance of following a scientific method.
These ideas arose in different European territories:
- France, with Black Letter Positivism
- Germany, with Abstract Jurisprudence
- England, with Analytical Positivism
The establishment of this doctrine is said to be linked with the development of the Contemporary State in the 19th Century. Some of the most important thinkers were John Austin, Hans Kelsen, and H.L.A. Hart.
From Natural Law to Positivism: The Rationalization Process
Now that we understand the essence of both doctrines, we can explain the process through which the rationalization of Natural Law led to Positivism. To understand why the Natural Law tradition led to a new theory called Positivism, we must examine the context in which this happened.
The framework in which Positivism emerged was the 18th Century, a century of many changes and reforms, such as:
- New philosophical thoughts that gave great prominence to reason.
- Significant revolutions:
- American Revolution (1776)
- French Revolution (1789)
- Several declarations of rights:
- Virginia Declaration of Rights (1776)
- Déclaration des droits de l’homme et du citoyen (1789)
The Rise of Rational Natural Law and Secularization
Thanks to this atmosphere, rational Natural Law arose, and a process of secularization took place, meaning law would no longer be connected to religion. Instead, the law would be used as a tool to provide a system of ethics common to everybody and explained through reason.
The Codification Movement
These ethics had to be collected and transformed into different principles that they believed had to be written down to ensure legal certainty. This led to a Codification movement, with codes being organized sets of norms that were articulated and included specific matters. Some examples include:
- Code Civil (Napoleon, 1804)
- Code Pénal (Prussia)
- Code de Commerce
Conclusion: The Emergence of Positive Law
Once the rational, general, abstract laws had been organized and codified in codes and treatises, Natural Law had effectively become Positive Law and was considered the sole legal system.