In any of its branches and interpretations, the law implies an ideal of justice. In this way, the laws seek to restore justice in human relationships. In the field of legal philosophy there are two opposing approaches to the philosophical origin of laws: those who argue that laws arise as a consequence of an ideal concept of a natural nature of human reason or those who affirm that there is no natural reason that legitimizes the law but the just dimension of the laws is based on the different legislative bodies.
The former are called iusnaturalistas or supporters of natural law and the latter are iuspositivistas or defenders of positive law. In this way, positive law is the set of legal rules issued by a competent authority that has the purpose of establishing the common good.
Natural law versus positive law
According to natural law, there are universal rules that tend to establish justice within society. Insofar as man is a social being, his life in society has to be fair. Consequently, the sense of justice as the ideal of human reason is the foundation of law. In this way, the current laws of positive or objective law are the concrete embodiment of natural law through a series of rules. Consequently, natural law determines and guides the different general guidelines that are later embodied in legislation. Thus, a norm will be fair when it meets the criteria of natural law.
According to the iuspositivistas the source of the right is not a natural right of universal character but the law itself. Therefore, those who defend this vision focus on the study of law as it is and do not take into account some supposed universal and immutable values, as argued by natural law scholars.
Despite this, the iuspositivistas do not rule out other possible sources of law, such as custom or jurisprudence. However, both custom and jurisprudence must always be subject to the law. As is logical, the iuspositivistas consider that the judges must be faithful interpreters of the law.
A conception of the western world
The vision of positive law is based on four fundamental theses:
1) the law consists exclusively of a series of rules and everything that does not conform to the law is meaningless from a legal point of view,
2) It is intended to guarantee legal certainty, that is, the certainty of prior knowledge about what the law is so that it is possible to foresee its consequences,
3) the law is a human work and a strictly conventional social fact of each historical epoch and should not depend on any value judgment that is universal and permanent and
4) Law and morality are independent realities, so a law is not legitimate because it expresses an ethical position but because it has been created by a competent institution.
Photos: Fotolia - Pongmoji / Andrey Burmakin
