Introduction:
Some of the legal theorists and philosophers argue that the natural law holds a superior authority because it is based on the universal principles that it transforms any legal infrastructure varying from state to state depending on its social and religious norms. While on the other hand, some legal theorist comes up with arguments defying the superiority of natural law that the positive law is itself produced or formed by the social and legal infrastructure and is superior above all.
No matter which law supersedes the other, whether natural law or positive law yet the most integral element is to understand the relationship of both laws with each other and I would argue that none of them is mutually exclusive and try to come up with a study of which one is superior.
Definitions for Natural Law:
“An ordinance of reason for the common good, made by him who has care of the community, and promulgated.”- Thomas Aquinas [1]
According to Aquinas, Nature’s law, based on reason and human nature, promotes the common good. It is a guide for human conduct and is oriented towards the well-being of all.
“The rule that tells us what we ought to do and what we ought to forbear.” – John Locke [2]
According to John Locke, The principle of natural law is based on preserving life, liberty, and property. It has been used throughout history to affirm individual rights and limit the powers of governments.
Definitions for Positive Law:
“Positive law refers to a legal system in which laws are enacted by a recognized authority, such as a legislature or a sovereign, and derive their validity from that authority alone. Positive law emphasizes the social and governmental construction of legal rules.” – H.L.A Hart.[3]
“Positive law is a legal framework consisting of rules and regulations that are officially recognized and enforced by a particular political authority or governing body within a given jurisdiction. It reflects the norms, customs, and statutes that are formally established and applied within a society.” – John Austin.[4]
What are the co-relevant characteristics of Natural Law and Positive Law:
- Normative Authority: Both natural laws and positive laws emphasizes normative authority to guide human behavior. Both provide rules and principles which govern the human conduct and act as a basis for moral and legal judgments.[5]
- Social Order and Stability: Both natural law and positive law aim to establish and maintain social order and stability within a society. They provide a legal framework for resolving conflicts and promoting justice.[6]
- Relationship to Human Rights: Both natural law and positive law promote the human rights. Natural law asserts that certain rights are inherent in human nature, while positive law establishes legal rights and protections within a legal system.[7]
How do both Natural Law and Positive Law proceed to “Justice”:
As mentioned earlier, both the natural law and positive law have the purpose of providing the public with justice. The natural law presents itself with the assumption that justice can only be found in social morality, while positive law emphasizes that justice can be provided by the state recognized authorities, yet both laws share the omni objective of provision of justice in a society.
The natural law defines justice with regard to human laws and human nature, now human nature includes its logical and intellectual reflection with human reasoning based on the social and religious morality of the society, for which we can illustrate a good example of natural law that was practiced before the positive law, “The Social Contract Theory”.
Now let’s discuss the positive law, the positive law keeps a scientific approach towards justice that only accepts and adhere to a proven structure of legal infrastructure, yet the positive law is derived from the natural law and works on the principles of the natural law, but it approaches the justice and resolves disputes and protects the rights of the individual with the help of maintained social order.
The positive law ensures the provision of justice in a consistent manner where the laws are not partially applied but are very clear and specific to the offense.
That is why the positive laws are well structured and have no room for ambiguity and are made with a scientific process of the legislature and include expert opinions considering the severity of cases and passes the laws with special voting and where the majority favors that law is considered accepted and ‘enforced and applied’ by the executive authorities of a state rather being ‘implied’ like natural laws.
Which Law is Superior:
The positive law is superior. How?
- Being flexible in nature: With the change of time certain domains changes, like the economy and technology changes and our activities and circumstances with these also changes which impact our social life therefore, the positive laws are flexible in nature has the capability to change considering new policies unlike natural law that remain static.
- Based on public will: As mentioned earlier the, natural laws is based on the social and religious norms and based on man’s reasoning, while Positive law is processed through legal bodies of the state which includes courts and legislature and therefore is based on the will and consent of the public.
- Positive laws are codified: the positive laws are clear and are defined in a codified set of rules, statutes and precedents which make it certain to follow a procedure for a specific case. It works more like a catalog and the access for which is much easier. It is more reliable with such a legal framework.
- Based on Equity: The positive law is a good example of providing equal rights and justice to individuals in a society. The interests of a citizen are well secured and with the positive laws, it is much easier to interpret the legal dilemmas for a person and give a better judgment.
Conclusion:
To conclude, we have seen in the above arguments that natural is more of a philosophical and a subjective driven law while the adaptability of the positive is gained with each societal change, whether it is to make a new law within a legislative institute or superficially eliminating the crime and criminals by providing a clear legal framework, therefore the positive is much easier to fit in our legal system and keep updating itself with the dynamics of our society.
[1] Thomas Aquinas, Book “Summa Theologiae” (Chapter 9), Originally Published in 1485
[2] John Locke, Book “Two Treatises of Civil Government, Originally Published in 1689
[3] H.L.A. Hart, “The Concept of Law” (1961), Oxford University Press
[4] John Austin, “The Province of Jurisprudence Determined” (1832), Cambridge University Press.
[5] John Finnis, “Natural Law and Natural Rights” (1980), Oxford University Press, Chapter 2.
[6] Thomas Hobbes, “Leviathan” (1651), Cambridge University Press, Part II.
[7] Hans Kelsen, “The Pure Theory of Law” (1967), University of California Press, Chapter 5.