Natural law and positive law are two distinct theories within jurisprudence that provide different perspectives on the nature and source of law. The relationship between these two perspectives has been a subject of ongoing debate within jurisprudence.
Natural Law
Natural law is a theory that posits the existence of a higher, universal law that is inherent in nature and accessible to reason. This law is considered to be pre-existing and independent of human-made legal systems.
Natural law theorists argue that certain moral principles or fundamental rights are discoverable through reason and are part of a higher, natural order. These principles are seen as transcending positive laws created by governments.
Natural law is often associated with a strong moral foundation, asserting that laws should reflect ethical principles, and an unjust law, according to natural law, is not a true law.
The idea that certain rights, such as the right to life, liberty, and property, are inherent and should be protected by legal systems, regardless of whether specific positive laws exist to guarantee them.
Positive Law
Positive law, also known as man-made or enacted law, derives its legitimacy from human authority, such as legislation, constitutions, and legal systems established by governments or other governing bodies.
The authority to create positive law comes from recognised legal institutions and processes. It is essentially law that is posited or positively laid down by human authorities.
Positive law is often considered morally neutral. Its legitimacy is not necessarily based on ethical principles, and the validity of a law is determined by its source rather than its inherent moral quality.
Traffic regulations, tax laws, and criminal codes are examples of positive law. These laws are created and enforced by human authorities and may or may not align with moral or ethical principles.
Key Differences
Natural law is rooted in moral principles derived from nature and reason, while positive law is based on human-constructed legal systems.
Natural law finds legitimacy in moral principles, whereas positive law derives legitimacy from authoritative human institutions.
Natural law often has a strong moral component, prescribing that just laws align with inherent moral principles. Positive law can be morally neutral, and the morality of a law is not a criterion for its validity.
Natural law is seen as relatively stable and enduring, reflecting timeless principles. Positive law can change over time based on the decisions of legislative bodies and legal authorities.
In summary, natural law emphasises universal, moral principles inherent in nature, accessible to reason, while positive law focuses on laws created by human authorities and institutions, with legitimacy derived from the established legal process.
You can learn more about this topic with our Jurisprudence and Legal Theory notes.
