Natural Rights vs. Positive Law: Three Legal Perspectives
Legal Iusnaturalism
Iusnaturalism, as we saw, defends the existence of natural rights of the individual that are universal and inalienable. Therefore, for iusnaturalist thinkers, the main function of the State is to protect and ensure that individuals can enjoy these natural rights. From that perspective, the positive recognition of these fundamental natural rights in the laws is interpreted as a formal recognition by the State of a series of previous ethical principles, which are inalienable and thus can be protected more easily.
This was the consideration of the law under which the first declarations of rights of the 18th century were constituted, such as the Virginia Declaration of Rights (1776) in the United States or the Declaration of the Rights of Man and the Citizen (1789) in France. Moreover, this iusnaturalist approach also inspired during the 20th century the Universal Declaration of Human Rights (1948) or the current Spanish Constitution (1978).
In this way, legal iusnaturalism understands that the human rights recognized in the Universal Declaration of Human Rights are rights inherently human, and therefore, prior and superior to any written laws and to any agreement between governments. Therefore, for iusnaturalists, human rights exist and are owned by individuals regardless of whether or not they are recognized by positive law, that is, by the written laws that have validity in a given State.
Legal Positivism
Defenders of legal positivism stand up for a position radically opposed to iusnaturalism. From their point of view, there is only a legal norm, a law, when it has been established positively, that is, when it has been explicitly included in some legal code. Therefore, any belief in the existence of some valid law prior to positive law is interpreted by legal positivists as the result of an unacceptable metaphysical position.
This conception had one of its clearest representatives in the English thinker Jeremy Bentham, father of ethical utilitarianism, who revealed the incongruity of accepting the existence of some rights before the existence of the State, because, according to Bentham, there is no law if there is no State nor positive laws.
In general, positivist thinkers consider that the so-called “natural rights” are no more than a set of social norms founded on certain collective opinions and sentiments which, although they may influence law, they are not part of law. Those “natural rights” will be authentic rights only when they are promulgated by a State through mandates that impose duties and imply sanctions.
In short, for legal positivism, the promulgation or positive recognition of human rights is not a mere declaration, since they do not exist previously, but a constitution of their existence. It is not a question of ratifying the postulates of natural rights, but of “giving them life” within the framework provided by a specific legal order.
Legal Realism
Legal realism is opposed both to those in favor of legal iusnaturalism and those in favor of legal positivism. From this perspective, the positivization process does not mean the declaration of preexisting rights (iusnaturalism), nor the constitutions of new rights (positivism), but is a further requirement to take into account for the effective and real enjoyment of certain moral and political demands of freedom and justice. The formal recognition of certain fundamental rights is not the end of the process, but a further condition for the subsequent development of real conditions in order to protect these rights. Ultimately, these real and effective conditions are those that make possible the legitimacy of Positive law.
Therefore, the defenders of legal realism accuse both iusnaturalists and positivists of some kind of abstraction. Legal realists think that the problem of fairness and legitimacy of a particular legal system must be sought in the economic and social conditions which allow the real and effective enjoyment of some fundamental rights by citizens. Hence, in the end, the justice and legitimacy of a society must be traced in the power relations that support them and that are based on certain social, economic, and cultural conditions.
Legal realism is closely linked to the socialist movement. Not for nothing, Marx and socialism in general express a constant concern to face the problem of fundamental rights from the perspective offered by the existing socio-economic structures.
Therefore, as a conclusion, we could say that while iusnaturalism deals with the problem of the relationship between law and justice from a philosophical perspective and positivism deals with this problem from a legal point of view, according to legal realism the appropriate perspective is the political one.