The difference between natural law and positive law is that natural law is independent of the state or laws. Therefore, it is considered autonomous. This type of right is inherent to every human being, having a universal, immutable and timeless character.
Positive law, on the other hand, depends on a manifestation of will, either by society or authorities. It is created through voluntary decisions, and must be guaranteed by a set of laws and regulations.
| natural law | positive law | |
|---|---|---|
| What is it | It is a presupposed right, being superior to the State. | It is defined and enforced by the State. |
| Validity | Universal, unchanging and timeless. | It is valid for a certain time and has a territorial basis. |
| Basis | In the fundamental principles, of an abstract order. | It is based on the order and stability of society. |
| Character | Informal. | Formal. |
| Infractions | The offender is not subject to legal sanction. | Suffers legal sanction. |
| Example | Right to freedom and equality. | The Federal Constitution. |
Concept of natural law and positive law
Natural law, or jusnaturalism, is the inherent right of every human being, from birth. It does not depend on the State or any law, being universal, immutable and timeless. This right is based on human principles and morals.
Positive law, or juspositivism, is a concrete set of legal norms, culturally constructed. These norms are guaranteed by the State through laws. It depends on a manifestation of will, either from society or from an authority.
As this right is based on a legal system, its validity is temporal and territorially based.
Today, natural law is seen as a set of principles that legislators take into account when creating new laws. That is, for the elaboration of positive law. Among them we can highlight the right to life, equality and freedom.
Violations of natural law and positive law
Positive law determines law as a factor, not just as a value. Therefore, it is defended by legislation and the infraction will be considered a crime, generating a legal sanction according to the act committed.
On the other hand, the transgression of a rule seen as a natural right will not suffer legal sanction, as it is not provided for by law. However, the society that values this right will repudiate the person's act.
Origin of Natural Law and Positive Law
Natural law is seen as a derivation of the human essence, of its nature. This nature can be of religious origin (the laws of God) or the rationality of human beings.
Its study originated with the Greek philosophers, who saw this right as a natural order of things.
This conception of natural law was influenced by the church during the Middle Ages. And the values of the clergy came to be seen as the laws of God. Later, Enlightenment thought classified natural law as the discovery of human reason behind nature.
Legal positivism, which gave rise to positive law, emerged in Europe in the mid-nineteenth century. This current defended that only that emanating from the decisions of the State would be considered Law. Therefore, it should be guaranteed through laws and regulations.
See also the difference between:
- equality and equity
- Plaintiff, respondent, defendant and plaintiff
- prescription and decadence
- Complementary law and ordinary law
- guardianship and guardianship
- Executive, Legislative and Judiciary: the three powers
