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Rule
of
Law: The Story of Human Rights in World History |
Legal Theories of
the Western Tradition:
Comparison
of Natural Law and Positivism**
Word document
or
PDF] Role of Law in society: Law determine rights and responsibilities, governing both the leadership and the individual in society
| Natural Law/Naturalism | Positivism |
| The Law of Nature is the embodiment of the principle of justice | Positive Laws are the laws made by states (mostly by legislatures) |
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Origins: Developed by Greek Stoics Discussed by Aristotle in Nicomachean Ethics Justinian Code: * Governs relations among nations * "The law of nature is that law which nature teaches to all animals. For this law does not belong exclusively to the human race, but belongs to all animals, whether of the earth, the air, or the water. Hence comes the union of the male and female, which we term matrimony; hence the procreation and bringing up of children. We see, indeed, that all the other animals besides men are considered as having knowledge of this law." (1) Middle Ages: Natural Law is Christian Law 17th-19th c.: Natural law is reason mid-late 19thc.: Natural law is the law made by rational states |
Origins: Justinian Code: Civil law is made up of the laws made by a nation for its citizens Scholastics place "human law" (the "ordinance of reason") in their system of laws, although human law is inferior to divine law Jean-Jacques Rousseau's (1712-1778) opinion that individuals obtain true freedom by entering into societies governed collectively (by "general will") developed the idea that justice can only be found through democratic decision-making, leading to the idea that laws made by elected legislatures ("positive laws") are the truest justice. Georg Wilhelm Friedrich Hegel's (1770-1831) philosophy that ethical responsibility could only be determined by observing one's contemporaries furthered this state-based idea of justice.
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Contemporary applications: Common Law can also be seen as a type of Natural Law, as it is based on how people have behaved over time (Sir Edward Coke, 1552-1634). |
Contemporary applications: Both legal systems in the West (Common Law and Civil Law) rely heavily on written laws.Sir William Blackstone (1723-1780) wrote that parliamentary law should overrule common law because human laws are inspired by the law of nature. |
While Natural Law and Positivism are often juxtaposed as sources for justice, their relationship can actually be quite fluid, as some will claim that nature or reason has inspired man-made laws or that written laws may shape one's perception of what is rational.
*Where not otherwise attributed, categories on this sheet are adapted from Edgar Bodenheimer, Jurisprudence: The Philosophy and Method of the Law, Cambridge, MA: Harvard University Press, 1962.
(1) Justinian Code, "The Institutes: Book I, Section I," Medieval Legal History Sourcebook, Last modified: March 4, 2001. <http://www.fordham.edu/halsall/basis/535institutes.html>
page created by Hallie Fader, ORIAS, July 2004.
Sponsored by the University of California at Berkeley Office of Resources for International and Area Studies (ORIAS), Institute of East Asian Studies, Center for Latin American Studies, Center for Middle Eastern Studies, Institute of Slavic, East European and Eurasian Studies, Center for South Asia Studies, Center for Southeast Asia Studies, Institute of European Studies.
Funding is provided by Title VI grants from the United States Department of Education.