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What is the difference between iusnaturalism and iuspositivism?

Jusnaturalism is a current of thought that is based on the idea that rights and norms have a natural origin and are inherent to human beings.

Juspositivism is a current of thought that is based on the separation between morality and law. From this point of view, there are only rules created by man and intervened 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 the right is created by man.

Jusnaturalism Iuspositivism
definition Legal and philosophical doctrine that establishes the universality of rights, depending on their metaphysical or natural origin. Philosophical and legal doctrine that establishes the origin of the right to the sovereign.
origin XV century, School of Salamanca, Spain. XVII century, Historical School, Germany.
  • Natural origin of rights.
  • Universality of rights.
  • The use of reasoning and morality is assumed.
  • It is above positive law.
  • Morality and law are separate.
  • Laws are rules created by the sovereign.
  • The law changes according to the circumstances of each state.
  • Laws are coercive in nature.
  • It is imperative.

What is jusnaturalism?

Jusnaturalism is a philosophical doctrine applied to law, which states that rights have an intrinsic origin in the human being. This means that they are given naturally, either because they come from a rational or divine source.

For this reason, iusnaturalism raises the universality of rights above the State’s rulings, since if their origin is natural, then it is not intervened by human agencies.

Jusnaturalism appeals to goodness, ethics, morality and reasoning as qualities specific to the human being so that he can distinguish between what is good and what is bad. In this way, the idea of ​​a social order regulated by universal rules, known by all members of society, would materialize.

Characteristics of jusnaturalism

These are some characteristics of iusnaturalism:

It proposes a natural origin of the rights of individuals

For iusnaturalism, rights have a metaphysical source, either because they are naturally given to humanity or because they come from divine agencies.

Rights are given to all equally, while they are universal

Therefore, all people know them or can deduce them with their reasoning.

Assume that all people will act righteously

This disposition to act from the good is what will regulate human action, beyond the provisions or laws created by man.

For law to work, it must also rest on morality

In this sense, iusnaturalism proposes that everyone can elucidate good from evil.

Nothing is above natural and universal laws

If natural rights are not considered by positive law in its legal system, then the latter has no validity.

Origin of jusnaturalism

Although the first modern naturalistic theses began to be considered between the 15th and 17th centuries in the School of Salamanca (Spain), the reality is that the Greeks and the Romans had made similar questions about the existence of laws with universal scope.

In this sense, Plato had proposed in his work Republic and laws (4th century BC) the existence of a natural law based on human reasoning. On the other hand, the Roman jurist Marcus Tullius Cicero (30 BC) supported the idea of ​​a right common to all human beings, and which therefore had a universal scope.

What is positivism?

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 compliance. This makes them valid beyond any transcendental or metaphysical order or consideration.

For this reason, the ultimate object of iuspositivism is the law itself and considers all laws objectively. Therefore, there are no more or less strict or more or less fair laws, since they are stripped of interpretation.

The separation between morality and law raised as a core issue in juspositivism has to do with the conception that morality is one-sided and subjective. It is up to each individual, their beliefs and interpretations to decide what is right or wrong, and this only serves to regulate their own conduct.

For its part, law is bilateral, since it challenges the individual in relation to another (another individual, institutions, society, etc.).

Morality is autonomous while it has to do with a personal conception which, at the same time, depends on reasoning. Law implies a series of rules that must be fulfilled 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 positivism

Here are some essential characteristics of positivism:

He rejects the idea of ​​a link between morality and law

Morality is subjective, individual and autonomous, laws are objective and mandatory.

Laws are rules created by human beings

For positive law, the rules are the expression of the sovereign and are regulated by the State.

The right 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 nature

In other words, they can involve the use of force, at the same time protected in the legal framework.

It is imperative

The sovereign obeys the laws because he knows that if he does not, he will have to confront formal, not divine, laws.

Origin of juspositivism

The formal approaches of iuspositivism have their origins 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. Added to this was 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 finished systematizing and influencing the European legal system. In this instrument, published in 1804, all the laws foreseen for different situations were organized for the first time, and the role of the judge is established as a neutral actor whose job is to apply the rules, without interpreting or subjectivizing them – them

Jusnaturalism, juspositivism 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 positive laws into account, but rather holds to the metaphysical origin, therefore, all people have universal rights. Whereas for positivism, 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 this arrangement. At the time, the priority was to ensure the protection of all people to prevent a repeat of the injustices that took place during the two world wars, not to explain their origin or source.

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