[English] -II- The Possibility of Integration of Natural Law and Positive Law

Contemporary Approaches: Natural Law & Positive Law

In order to better understand the conflicts, oppositions, differences of origin and moral foundations that occur between natural law and positive law, it would be extremely useful to consider the evaluations of all historical knowledge and accumulation by contemporary academics and writers, looking back from today. Therefore, in the following lines of the study, you will read the current evaluations approaching the date the study was prepared, starting from the article of McKinnon, a very important name, in which he addresses the relationship between positive law and natural law.

In the article examined in our study, Harold R. McKinnon actually provides a striking summary of the dialectic we have outlined so far. Harold R. McKinnon starts his assessment of natural law from ancient times, and claims that in the Middle Ages, the assessment of natural law was more administrator-centered, while in modern times, law has been distanced from morality for institutionalized state mechanisms and sustainable systems. Harold R. McKinnon surprisingly claims that the USA legal system is actually based on natural law, and that even if some contemporary lawyers and academics do not accept it, decisions in the US judicial system are still made following the line of natural law. McKinnon presents the evidence for this as follows: “In the first place, there is implicit evidence of it in all those laws which reflect the jus gentium, that is, laws which are so spontaneously expressive of the human conscience that they are characteristic of the legal systems of all civilized countries.” (McKinnon, 1947, p. 4). This approach can be considered extremely unusual in the eyes of contemporary lawyers. Because, in the way that has been discussed so far in the study, it can be thought that natural law has disappeared as an ancient value, and positive law has transformed into modern law. The author, Harold R. McKinnon, states that highly institutional, federative state like the USA, which is the most powerful state in the world – as claimed –  have an analytical legal system applied to hundreds of millions of people is on the axis of natural law.

It will be seen that this striking approach put forward by Harold R. McKinnon is presented with arguments that are well-structured, analytical and rationally based, and in line with reason and logic, and that are thought out in detail by Harold R. McKinnon. In this context, the author discusses natural law in 3 parts. The first part is principles. Principles explain the basic provisions of reason, the universal reasoning power, as I have discussed in detail in the natural law section. The second part is precepts. Precepts are derived norms. In clearer terms, when principles are considered, precepts are derived. Before discussing the third part, it is possible to give concrete examples of the 2 parts briefly explained. Protecting the nature we live in, or in a more comprehensive expression, “not harming” can be accepted as a principle. In this context, the derived norm – according to the author, precept – can be understood as not harming a tree, a bird, or a plant. The third part is the rules. According to the author Harold R. McKinnon, rules include practical, analytical, rational norms developed for situations encountered in the developing and changing world. When the concretization activity continues, the enactment of the penalty for cutting down a tree can be given as an example of how rules work. When this philosophical approach put forward by the author Harold R. McKinnon is carefully evaluated, it is quite normal to think of positive law as the latest updated view of natural law in the rules section. Although it is a fact that countless academic benefits will undoubtedly arise from a detailed examination of the remarkable thoughts that Harold R. McKinnon shared with the public, it will be sufficient to mention Harold R. McKinnon’s thoughts only this much due to the word limit and volume of the study.

There are also contemporary academics and writers who have reached the same conclusions within the conceptual framework and philosophical depth that Harold R. McKinnon put forward, without the same conceptual map, ideological framework, and philosophical approach.

In a 2008 book edited by Spanish professor Ana Marta González, born in 1969, sometimes common and sometimes contradictory opinions of academics, jurists and writers who present contemporary approaches to natural law have been compiled. In the following lines of the study, the thoughts of contemporary academics, writers and lawyers, included in the articles compiled by Ana Marta González, will be examined.

Ana Marta González presents a striking claim in her article in the book. The author openly accepts that positive law, the laws created according to the needs of society, can change from country to country, from system to system, from period to period. Despite all this, she states that positive law will only maintain its meaning if it remains within the boundaries of natural law. While she does not base the boundaries of natural law on any regulation, law, book, or religion, the author Ana Marta González emphasizes that the metaphysical aspect of natural law is dominant. Gonzalez goes beyond the nature approach and also refers to natural law: “That is, in the case of human behaviour, the first principle of practical reason, the main principle which orders our actions is not simply nature, but rather, a natural law.” (Gonzalez, 2016, 34).

The valuable academic F. Russell Hittinger, who made an assessment that presented meaningful results in a different context than Ana Marta González, argued that the legitimacy of a structure claiming sovereignty can only be measured by its commitment to natural law. Author Russell stated that positive law should be seen as a concretized version, appearance, and result of natural law (Gonzalez, 2016).

In another article in the book, the study put forward by Juan Cruz, it is stated that positive law can be considered as the extension and practice of natural law. Montserrat Herrero from the University of Navarra, on the other hand, states that positive law, with its original perspective that limits natural law, can be accepted as a product of the development, transformation and modernization process of society from a Hegelian perspective, and that natural law can still be found meaningful only in limited contexts. Unlike classical thinkers, Alfredo Cruz Prados, who attempted to interpret the tension between natural law and positive law through practicality, stated that natural law is nothing more than an abstract theory, and that the virtues expected to be provided by natural law can only be protected with institutional, practical, systematic, rational and analytical structures such as positive law. The author Alfredo Cruz Prados also argued that natural law cannot be protected without the system of positive law operating through these institutional, practical, systematic, rational and analytical structures (Gonzalez, 2016).

In addition to the views of the valuable authors mentioned in this section, some contemporary authors claim that natural law has a purpose to ensure a virtuous society, and that this purpose adopted by natural law can only be possible with a judicial system that legislates virtue and punishes virtuous behavior, the limits and aspects of which have led to various discussions since ancient times.

Among contemporary academics and writers, the American John Deely, whose approach has personally attracted my attention, adds a biological dimension to this ongoing comparison between natural law and positive law. Namely, American John Deely says that natural law should be reconsidered in the light of evolutionary biology, and claims that positive law can be considered as a product of evolutionary biology. Among the writers examined so far, there has been no thinker or writer who has made such direct references to the fields of medicine and biology (Gonzalez, 2016).

Contemporary academics and writers have made original assessments of the two-way relationship between natural law and positive law, sometimes referring to evolutionary biology, sometimes to practicality, sometimes to a historicist perspective. Up to this point, the fundamental differences, boundaries, affinities and contrasts between natural law and positive law have been presented, starting from their definitions, and benefiting from various ideas from ancient thinkers to contemporary writers, in proportion to the volume of the study.

In the following parts of the study, academic evaluations will be given regarding the main questions of the study: “Can natural law and positive law be integrated? To what extent are natural law and positive law compatible? How can natural law and positive law be integrated? What does the two-way relationship between natural law and positive law promise for modern times?”

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