positive law and natural law
Historically, two quite different kinds of law have been invoked in rights discourse:POSITIVE LAW : The kind of law that is enforced, by institutions such as the police & judiciary. On this count, a citizen can enforce his/her claim rights through the civil or, in some circumstances, the criminal courts. Whether or not these rights are adequate or easy to enforce is, of course, debatable, the key point is that they are the rights of a specific group of people. NATURAL LAW : To establish human rights, a different kind of law is necessary , some version of natural law. The most developed version of natural law was established in the Middle Ages by Catholic Schoolmen, philosophers and jurists. One of their most distinguished modern successors has described the idea of natural law as being based on the existence of: (1)...A set of basic practical pri
Natural law and positive law each have advantages and disadvantages as foundations for rights. The great merit of naturalist approaches is that they provide a basis for a claim to possess rights, which is not so unhelpfully restrictive. Those who live in countries where this is not the case can find little solace in a view of rights which makes them the product of positive law, and this is particularly unfortunate since it is clearly the case that it is precisely those countries where the rule of law is absent that individuals are most likely to suffer the sort of oppressions that rights are designed to rectify. Rights associated with positive law are associated with particular jurisdictions and thus are not, as such, human rights- but, on the other hand, their ontological status is secure. Potentially, natural law provides the basis for a powerful critique of existing social institutions in a way that positive law does not and cannot. If one has rights solely by virtue of one's humanity, the tact one happens to be the citizen of a tyrannical regime, while still deeply regrettable, no longer leaves one without intellectual resources, because the heart of a natural law perspective is precisely the assertion of universal rights against local custom. Rights established by positive law are critical in the sense that they may allow one to argue that a particular social institution is not working in the way that it ought to, but they are less useful when, as is too often the case, a social institution is working exactly as intended, but the intention itself is oppressive. Positive legal r!ights provide no basis for an ------------------------------------------------------------------------**Bibliography**. This is only valid in places where the rule of law applies and where the rights to be found in constitutional documents have actual force. A citizen can point to specific pieces of legislation or to common-law judgements to support his case. nciples which indicate the basic forms of human flourishing as goods to be pursued and realised, and which art in one way or another used by everyone who considers what to do[and] (2).
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