Natural Law vs. Positive Law | Introduction to Law

Summary

In this video, the speaker, Brunell, explores the fundamental concepts of natural law and positive law, two pivotal ideas in legal theory. Natural law, rooted in human nature and universal justice, contrasts with positive law, which is created by the state to regulate society. The video delves into the tension between these two systems, explaining how they complement and sometimes conflict with each other. Brunell also introduces a special offer for students of the 'First Steps in Law' course, which includes a bonus digital book and free educational content to aid students in their legal studies.

Takeaways

• 😀 The difference between natural law and positive law is central to understanding how legal systems are structured.
• 😀 Natural law is based on the idea that there are universal, immutable principles of justice inherent in human nature or divine principles.
• 😀 Positive law refers to laws created by the state, which are changeable and depend on the social, historical, and cultural context of a specific place and time.
• 😀 Natural law is closely tied to ethics and morality, while positive law focuses on the legitimacy of laws created through established legislative processes.
• 😀 According to Hans Kelsen, positive law should be understood independently of morality, focusing on the formal creation of laws by the state.
• 😀 Positive laws can be valid and enforceable even if they seem unjust from a moral perspective, as long as they are created through legal processes.
• 😀 Natural law serves as a moral and ethical guide to evaluate the fairness of positive laws, suggesting that laws should align with universal principles of justice.
• 😀 Tension between natural law and positive law arises when state laws conflict with inherent human rights or moral values, leading to debates about their legitimacy.
• 😀 The relationship between natural law and positive law is crucial in shaping just legal systems that both regulate society and uphold fundamental ethical principles.
• 😀 The course 'First Steps in Law' is introduced as a tool for students to build a solid foundation in legal knowledge, with a special bonus for students.
• 😀 A new digital book, 'Notions of Law for College Students,' is available as a bonus to help students better understand legal concepts, tailored to their academic needs.

Q & A

What is the key difference between natural law and positive law?

Natural law refers to universal, immutable norms based on human nature or divine principles, while positive law refers to rules created by the state that can be modified according to social and political changes.

How does natural law relate to morality and ethics?

Natural law is closely linked to morality and ethics, as it is based on universal principles of justice that guide human behavior in society, often reflecting what is considered inherently just.

What is the role of the state in positive law?

The state creates, enforces, and maintains positive law, which is designed to regulate society within a specific time and context. These laws are enforceable and can be modified by the state.

What does Hans Kelsen's theory of legal positivism emphasize?

Hans Kelsen's legal positivism emphasizes that law should be understood as a system of norms created by the state, independent of morality, and that the validity of laws depends on their formal creation rather than moral justness.

How can natural law and positive law sometimes conflict?

Natural law and positive law can conflict when state-enacted laws violate principles considered inherent in natural law, such as human rights or fundamental freedoms. In such cases, natural law advocates may view these laws as unjust or invalid.

What role does natural law play in evaluating the legitimacy of positive law?

Natural law serves as a benchmark for evaluating whether positive laws align with fundamental principles of justice. If positive laws conflict with these principles, they may be considered illegitimate, even if formally enacted by the state.

How do defenders of legal positivism view laws that seem unjust?

Defenders of legal positivism argue that laws, even if perceived as unjust, are still valid and must be followed as long as they are created according to the established legal process, independent of moral considerations.

Why is the relationship between natural law and positive law important for a just legal system?

The relationship is important because a balance between both ensures that a legal system is both practical and ethically grounded. Positive law provides concrete regulation, while natural law offers the moral principles that guide those regulations.

What is the significance of understanding natural law and positive law for individuals?

Understanding both natural law and positive law helps individuals navigate societal norms and ensures they can protect their rights, recognize unjust laws, and act in a legally informed manner.

What additional resource is offered for students interested in learning more about law?

The course 'Primeiros Passos no Direito' offers an exclusive digital book titled 'Noções de Direito para Universitários,' which is designed to simplify legal concepts for university students, providing essential knowledge for their academic journey.