LAW

INTRODUCTION

This paper is set to discuss the concept of natural law and how it is different and similar to human positive law. The difference and similarity between natural law and positive law is not merely of doctrinal concern, it develops with regards to jurisprudence.

WHAT IS LAW?

Law is an ordinance of reason directed towards the common good and promulgated by one who has care for the community (Aquinas). It is a statement of order on the relationship between phenomena and physical laws. Law means a rule of action or events in nature or in human activities, which covers human beings and other things in nature, whether animate or inanimate.[1] Law as a rule has two senses: firstly, it is the uniformities and regularities of things in nature.[2] Here law is scientific and natural such as cosmological sequence and natural occurrences. Secondly, it is norms or rule of conduct made obligatory by some sanctions which are imposed and enforced for their violations by a controlling authority. Here, law is human and municipal.

THE CONCEPT OF NATURAL LAW

Natural law is a system of right or justice held to be common to all humans and derived from nature rather than from the rules of society, or human positive law. The concept of natural law can be defined as an observed or inferred regularity or uniformity of events, which holds or is supposed to hold out of some sort of necessity as contrasted with accidental or coincidental regularity. It can be understood in two senses: prescriptively and descriptively. In the prescriptive sense, it is an order intended to regulate human behavior;[3] it is a natural injunction. In the descriptive sense, it describes the regularity with which certain physical things happen universally under certain conditions.[4]

HUMAN POSITIVE LAW

According to the catholic dictionary, human positive law is legislation imposed by human authority, implementing the natural law. The human positive law is enacted by a legitimate authority which is complementary and supplementary to the provision of natural law. It is made in view of the special needs of the human community.

The Difference and Similarity between Natural Law and Human Positive Law

There have been several disagreements over the meaning of natural law and its relation to human positive law. Aristotle held that what was “just by nature” was not always the same as what was “just by law,” that there was a natural justice valid everywhere with the same force and “not existing by people’s thinking this or that,” and that appeal could be made to it from positive law.[5] This supposes that there are similarities and differences between the natural law and the human positive law.

DIFFERENCES

The difference between natural and human law is grounded in the Greek philosophical thoughts which distinguished nature form custom.[6] However according to Thomas Davitt, natural law is a man discovered law which implies that it is no man’s creation, it is God-given and are inherent in humans, while positive laws are man-made. The natural law cannot be changed by humans; it is immutable because it is based on man’s nature which remains always the same[7], but positive law is influenced by humans. Natural laws have a universal application, but positive laws bind only within the confines of a geographically defined political territory. Natural laws are based on reasons which have reflected upon fundamental principles of morality such as self-preservation, but positive laws are prescription and people are meant to abide by that prescription. Natural law can exist independent of man, but positive law is dependent on man’s existence. Natural laws are eternal and constant, positive laws can be amended. Natural law appeal to human instinct and reason, but positive law appeals mostly to human reason.

SIMILARITIES

Natural law and positive law are similar in some aspect. They both have man as their subject and they exist to ensure order, discipline, morality and well-being of the societal inhabitants especially man. In other words, they both work for the common good. Man appeal to both the natural law and positive law when making judgment of things. Both natural and positive laws impose necessity on the human persons which they guide. The natural law and Positive law conditions human thought pattern, and both laws are premeditated.

CONCLUSION

            From the discourse so far, we are able to garner some of the points of convergence and divergence between natural law and positive law. The similarity is basically hinged on the fact that both the natural law and the positive law, seeks to strike a balance and order in the society. And there differences are basically on their originations.

BIBLIOGRAPHY

1.      Macaulay-Adeyelure, A Comparative Analysis of the Natural Law Doctrine in Ancient and Medieval Periods, (Lumina, Vol. 21, No.1, March 2010)

2.      John Hospers, An Introduction to Philosophical Analysis, Second Edition (London: Rontledge and Kegan Paul, 1976)

3.      Joseph Omoregbe, An Introduction to Philosophical Jurisprudence,(Joja Educational Research and Publishers Limited, 2004)

4.      Encyclopædia Britannica. Encyclopædia Britannica Ultimate Reference Suite.  Chicago: Encyclopædia Britannica, 2014.

5.      http://www.enotes.com/topics/aristotle/summary

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[1]Macaulay-Adeyelure, A Comparative Analysis of the Natural Law Doctrine in Ancient and Medieval Periods, (Lumina, Vol. 21, No.1, March 2010), p. 1

[2] John Hospers, An Introduction to Philosophical Analysis, Second Edition (London: Rontledge and Kegan Paul, 1976) p. 231

[3] Joseph Omoregbe, An Introduction to Philosophical Jurisprudence,(Joja Educational Research and Publishers Limited, 2004), p.xi

[4] ibid

[5] "natural law." Encyclopædia Britannica. Encyclopædia Britannica Ultimate Reference Suite.  Chicago: Encyclopædia Britannica, 2014.

[6] http://www.enotes.com/topics/aristotle/summary

[7] Joseph Omoregbe, An Introduction to Philosophical Jurisprudence, p.  67