Law is a social phenomenon that presents a normative system by which it is possible to organize a society. The set of laws makes up the system that allows regulating social behavior in some area, be it commercial, civil, criminal, labor, etc.
From the point of view of philosophical reflection, it is considered that the laws of law require a rational legitimation
In this sense, there are two possible theoretical approaches:
1) Legal norms have a natural foundation in human reason, specifically in universal ethical principles, such as the idea of justice, freedom or equality and
2) There is no human reason that is the general principle of the legal norm, but each law or norm depends on the social context and the historical evolution of the law.
The first approach is known as natural law or natural law and the second is positive law or law.
General principles of iuspositivism
The main source of law is the law. In this way, iuspotivism studies the law as it is, that is, the laws that make up the legal system. Although the law is the source of fundamental law, there are also other sources of law, such as custom or jurisprudence.
From the postulates of iuspositivism, a judge must be a faithful interpreter of the law, so that their decisions cannot be based on supreme ideas or values outside the legal norms.
Positive law maintains that we only know the data provided by the sciences and the various auxiliary branches that can prove facts and such facts must be interpreted according to what the laws dictate.
Legal norms can exist independently of an ethical foundation. In this way, law and ethics are completely autonomous areas. In this sense, law deals with the external behaviors of individuals, while ethics focuses on the intentions of the human being.
Antecedents of iuspositivism
- First, 19th century German philosophy presented positive law as opposed to natural law.
- Secondly, in the 19th century, the French philosopher Auguste Comte laid the foundations for positivism, a vision of reality founded on the scientific attitude and the rejection of metaphysical approaches.
- Finally, the current of logical positivism of the early twentieth century maintains that legal science is a normative science and must be detached from any other criterion based on the natural reason of the human being.
Photos: Fotolia - Xiaoliangge / Lightfield
