Natural law
Natural law (Latin ius naturae, from ius 'law' and natura 'nature'; also Latin ius naturale, natural law; more rarely supra-positive law) is the name in legal philosophy for a universally valid principle of order, the basic assumption of which is the idea that the norms of human coexistence are to be founded on human nature. Natural law is not to be understood in terms of natural ethics as the "law of nature", because at the centre is the value-forming human being with his natural endowments.
The question of the implementation of a priori ideas of righteous action, truth, goodness and beauty was already raised in the philosophy of ancient Greece. Plato and Aristotle also argued that the medium of reason was needed to make these values arable for human beings, in particular to protect them from drives and desires and to create balance. The Sophists countered these essentialist approaches with named principles of law. Modern natural law was significantly influenced by the Enlightenment philosophers Hobbes, Locke and Rousseau. For today's reception, natural law gained importance in the law set by man, the positive law. This is represented by a number of important codifications of the 18th century, such as the Prussian Land Law. As the highest-ranking source of law, it serves to legitimise legal views.
In a narrower sense, moral philosophy and theology use natural law as a standard for those principles from which the ought principles and the determination of justice for a natural coexistence are derived. Legal positivism, on the other hand, holds that constitutionally established law does not need a higher justification.
Natural law is conceptually rooted in Greek philosophy. While natural law had little significance in Rome beyond the Roman Republic and into the classical period of the emperors, it gained weight in the post-classical period and sat alongside or took the place of ius gentium. The Catholic Church continues to hold to the concept of natural law into the 21st century.
The secular legal-philosophical expressions of natural law, which are not derived from basic religious values but from the cognizability by human reason, are called the law of reason.
Term
Conceptually derived from antiquity, the concept of natural law is based on the belief that "the norms of human coexistence can and must be grounded in human nature." This encompasses both indisputable legal principles (premises) in the tradition of ancient philosophers such as Heraclitus, the Sophists, Aristotle, and Plato, which derive from an idea of objective or absolute truth, and the idea that every human being is endowed "by nature" (i.e., not by convention) with inalienable rights-regardless of gender, age, location, state affiliation, or the time and form of government in which he or she lives. Nature is thereby understood as a feature of the "essence" of man, not as "rights of nature" in the nature-ethical sense. In this respect, the idea of natural rights is closely linked to the idea of human rights. Natural rights are thus seen as pre- and supranational "eternal" rights. The idea of ancient natural law arises in Heraclitus, Plato and Aristotle, nevertheless, through a unified approach, the coincidence of human nature (physis) and man-made laws (nomos). Physis and nomos are anchored in the logos, i.e. the divine unity of the laws of the world. From this derive the laws of nature and of reason, which establishes the laws for communal coexistence.
In addition, there is a view of natural law as the "right of the strongest". Under the premise of public utility, this meant that equal rights should enable the victory of better performance over ancestral entitlements. In social Darwinism and fascism, however, a paradoxical "ancestral right of the better performance" has resulted from this - similar to the way in which God's grace had previously been understood as the "legitimation by God's grace" of the monarch position, which was not to be touched.
The invocation of superpositive law assumes that certain legal principles claim validity "par excellence", irrespective of their concrete formulation by the legal system, and thus need not be created nor can they be overruled by a positive act of lawmaking.
From time immemorial, questions of natural law have focused on aspects with which legal philosophy as well as philosophy and theology are concerned. Natural law as an essential subfield of legal philosophy forms one of the foundations of jurisprudence, which, in the sense of a natural law of reason, attempts, for example, to formulate "commandments of morality" or to create critical standards of the applicable law by characterizing contradictions to humanly established law.
Furthermore, natural law is to be understood as a standard and corrective of positive law. This view is also held by the Roman Catholic Church.
In the modern tradition, which presents itself decidedly as "post-Christian", the definition of the term is based solely on human reason.
Distinction from legal positivism
For legal positivism, only those norms are binding that have been enacted by a legislative act. From the point of view of positivist legal doctrine, superpositive law alone - as a body of moral principles - is then on the one hand not subject to the grasp of positive law, but on the other hand also has no legal effect. The pressure of consensual opinions can, however, gain influence on the legislator to raise superpositive principles to the status of law (positive law).
