Natural Law

Natural law in the theory of state and law — a concept in ethics and philosophy that means the totality of principles, rights and values that are dictated by human nature itself and, therefore, do not depend on the legislative recognition or non-recognition of them in a particular state

The basic thesis of the concept of natural law is that along with positive law, i.e. laws enacted by the state, there is a higher, true, natural right inherent in humans from birth. This is the so-called unwritten law, which is understood as a combination of natural and inalienable human rights. The source of human rights is not legislation, but human nature itself. Human nature, these rights are acquired from birth.

The implementation of natural rights has its own peculiarities. Natural rights are exercised directly, i.e. without any natural rights are exercised directly, i.e. without any law enforcement act; the implementation of natural rights is carried out objectively, irrespective. The implementation of natural rights is objective and independent of the will of people.

Appearance of Natural Law

Natural law emerged in ancient times practically along with the emergence of the human community. However, it was firstly recognized much later — during the New Age.

The first ideas that man possesses certain rights given to him by nature originated in antiquity. Mention of this can be found in the works of Socrates, Plato, Aristotle, and other thinkers of Antiquity. However, the understanding of natural rights at that time differed noticeably from later times and was, in a certain sense, limited.

For example, according to Aristotle, the division of people into slaves and free is explained by the fact that they are slaves by nature, since it is nature that endowed some people (free ones) with the right to own other people (slaves), and therefore the latter must obey the former.

In the ancient Roman state, jurists also speculated a great deal about natural rights.

A famous Roman jurist, Ulpianus, noted that "natural law is the law which nature has taught to all living things: for this right is inherent not only in the human race, but also in all animals and birds”.

Thus, in the ancient Roman period, natural law was already designated with a greater degree of legal validity and certainty than in the era of ancient Greece. However, scientific approaches to this phenomenon did not take shape in the ancient Roman state either, there are no legal theories as such yet, but there are still separate statements, we can say, strokes, sketches to the theories, which will be developed much later. And the reference to the fact that even animals have a natural right testifies to the relatively low level of development of this theory.

In the Middle Ages the theoretical development of natural law was enriched very insignificantly. The fact that intellectual development in the period of feudalism was constrained by religious dogmas had its effect here. Accordingly, the issues concerning natural law were covered on the basis of the divine principle, which determined the eternity and immutability of human nature.

The post-Medieval period was undoubtedly the time of natural law. It was during this period that natural law received the most intense impetus in its development. The bourgeois revolutions proclaimed the principles of equality of all men, freedom, and other rights.

Following the Americans, natural rights were enshrined in the famous French Declaration of the Rights of Man and the Citizen of 1789, whose preamble stated that the representatives of the French people decided to set forth in the Declaration "natural, inalienable and sacred human rights," which included "liberty, property, security and resistance to oppression" (Article 2 of the Declaration).

Subsequently, in the nineteenth century, the theory of natural law experienced a certain crisis, associated with some fading of that mosh liberal-democratic wave, which was under the bourgeois revolutions, as well as due to the more active development of other areas of legal science.

Currently there are two main directions of the theory of natural law:

• The neo-Thomist theory, according to which the source of natural law is God.
• Secular doctrine, according to which natural rights emanate from human nature itself, and positive law is preceded by natural rights based on the principle of justice.

Proponents of the secular theory believe that natural law exists in and of itself, while deriving from the characteristics of man as a socio-biological being.

This is very well seen in the example of the right to life. A person, being born, begins to live, exercising this natural right, regardless of what the legislative body may write about it. In this case a human being does not differ from any other living being, as natural instincts are in the foreground here, and the right to life may be called natural-biological.

However, man is not only a biological being, but also a social being, and therefore he has corresponding natural-social rights. An example is the right to personal dignity, which emerges and is formed as social relations develop.

Difference between Natural Law and positive law

Law in general is the content of written documents adopted by the authorities representing the group of people to which these norms apply. These are laws, decrees, constitutions, etc. In international law, these are interstate agreements, international conventions, and other treaties reflecting the consent and will of states to be bound by such laws. The content of these texts is called positive law. 

Lawyers apply it by interpreting the meaning of every word, every default, every comma in the light of the legislator's intent. They also estimate the force of each rule according to the more or less formal form in which it has been adopted. The lawyer must be guided in his work by the observance of precise rules relating to the interpretation and hierarchy of legal rules.

Customary international law is part of positive law. Even without being enshrined in instruments and without a specific agreement of states, it expresses an implied consent that manifests itself in an ongoing repetitive practice by voluntary consent. Thus, these rules also represent the will of many states, which gives them the force of law: they thus become binding on all states.

Historically, natural law is related to morality and its religious influences. It developed on the basis of the following idea: representatives of the human race possess certain natural, inalienable rights which exist regardless of the fact of their recognition by political leaders and their codification in written documents. These rights are directly related to the belief in the special universal dignity of every human being.