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
[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
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