Iusnaturalism is a current of thought based on the idea that rights and norms have a natural origin and are inherent to human beings.
Iuspositivism is a current of thought based on the separation between morality and law. From this point of view, there are only norms created by man and mediated by the State.
The difference between iusnaturalism and iuspositivism lies in the origin of law and norms. For iusnaturalism the origin is natural, it is given by the fact of being human, while for iuspositivism law is created by man.
| Iusnaturalism | Iuspositivism | |
|---|---|---|
| Definition | Legal and philosophical doctrine that establishes the universality of rights, based on their metaphysical or natural origin. | Philosophical and legal doctrine that establishes the origin of right in the sovereign. |
| Origin | 15th century, School of Salamanca, Spain. | 17th century, Historical School, Germany. |
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What is iusnaturalism?
The iusnaturalism is a philosophical doctrine applied to Law, which affirms that the rights have an intrinsic origin to the human being. This means that they are given in a natural way, either because they come from a rational or divine source.
Thus, iusnaturalism posits the universality of rights over and above the dictates of the State, since if the origin of rights is natural, then it is not mediated by human instances.
Iusnaturalism appeals to goodness, ethics, morality and reasoning as qualities inherent to human beings so that they can distinguish between good and evil. In this way, the idea of a social order regulated by universal norms, known by all members of society, would materialize.
Characteristics of iusnaturalism
These are some characteristics of iusnaturalism:
It posits a natural origin of the rights of individuals.
For iusnaturalism rights have a metaphysical source, either because they are given naturally to humanity or because they come from divine instances.
Rights are given to all equally, inasmuch as they are universal.
Therefore, all people know them or can deduce them with their reasoning.
Assume that all people will act righteously.
That disposition to act from the good is what will regulate human doing, beyond the dispositions or laws created by man.
For law to function, it must also be based on morality.
In that sense, iusnaturalism posits that each person can elucidate right from wrong.
Nothing is above natural and universal laws.
If natural rights are not considered by positive law in its legal order, then the latter has no validity.
Origin of iusnaturalism
Although the first modern iusnaturalist theses began to emerge between the 15th and 17th centuries in the School of Salamanca (Spain), the fact is that the Greeks and Romans had raised similar questions about the existence of laws with universal scope.
In this sense, Plato had proposed in his work Republic and Laws (4th century B.C.) the existence of a natural law based on human reasoning. On the other hand, the Roman jurist Marcus Tullius Cicero (30 B.C.), held the idea of a law common to all human beings, and that therefore, it had a universal scope.
What is juspositivism?
It is a philosophical doctrine that proposes a separation between morality and law. Juspositivism considers laws as a set of rules 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 considers all laws objectively. Consequently, there are no laws that are more or less strict or more or less just, 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, his beliefs and interpretations to decide what is right or wrong, and this only serves to regulate his own conduct.
For its part, law is bilateral, since it interpellates the individual in relation to an other (another individual, institutions, society, etc.).
Morality is autonomous insofar as it has to do with a personal conception that, in turn, depends on reasoning. Law implies a series of norms that must be complied with 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:
It rejects the idea of a link between morality and law.
Morality is subjective, individual and autonomous, laws are objective and of obligatory compliance.
Laws are norms created by human beings.
For positive law, norms are the expression of the sovereign and are regulated by the state.
The law is determined by the circumstances of each State.
According to iuspositivism, law cannot be based on universal values since each State has its own historical, political and social context.
The laws of positive law are coercive in character.
That is, they may involve the use of force, protected in turn by the legal framework.
It is imperativist
The sovereign abides by the laws because he knows that if he does not, he will have to face formal, non-divine laws.
Origin of juspositivism
The formal approaches of iuspositivism have their origin in the 19th century in Europe, specifically in the German Historical School, a legal doctrine that affirmed that 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. This instrument, published in 1804, organized for the first time all the laws foreseen for different situations, and established the role of the judge 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 iusnaturalism and iuspositivism in relation to human rights. On the one hand, iusnaturalism does not take into account the positive laws, but rather it is anchored in their metaphysical origin, therefore, all people have universal rights. For iuspositivism, on the other hand, rights are only such 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 such an order. At that time, the priority was to ensure the protection of all people in order to avoid a repetition 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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