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

I. Introduction

Throughout history, the vital condition for living together has been the respect and loyalty of individuals to the law. Societies have tried various legal possibilities to make living together possible. Thinkers have extensively evaluated what these legal tools offer, their sources, and possible outcomes. During this process, there have been societies that have approached to the principles of natural law, and societies that have approached to the principles of modern positive law. Both orientations promise various benefits within themselves. The fact that such deep-rooted experiences have found a place in political history has brought to mind the question of whether both systems can be implemented in an integrated manner. Starting from this point, throughout my article, I will discuss what law is, what natural law and positive law mean, at what points they differ, how the concept of morality is positioned in this conflict, how the source of law should be determined, what function we expect by instrumentalizing law, how thinkers throughout history have addressed this conflict, and the possibility of integration within an academic framework, taking into account the word limit of our article.

Keywords: Law, Natural Law, Positive Law, Modern Law, Jurisdiction, Morality, Integration

II. Definitions

Concepts may differ in different ages, different societies, and different contexts. Since many concepts will be used throughout the study, I will try to make the article more understandable by defining the boundaries of the concepts. In the following lines, the definitions of the concepts that will be used repeatedly and will be taken as a basis in the article will be included in the context of the study.

Law

The indispensable element of social life is norms. In every environment where an individual lives, there are norms that are recorded by law or not recorded by law. In case of violation of norms, sanctions occur. In case of violation of norms recorded by law, judicial/administrative fines, imprisonment or similar sanctions are in question; in case of violation of norms not recorded by law, social sanctions such as condemnation, alienation and exclusion arise. The basic purpose of norms as a whole is to protect common sense, peace, tranquility and conciliation within society. In this respect, law is, in the most general sense, a set of legal rules that regulate the behavior of individuals, determine boundaries and contain sanction power. Thinkers have put forward different approaches to the purpose, scope, boundaries and necessity of law. That will be discussed in detail in the following pages of the study, some authors define what law aims to achieve as common good, while some authors have put forward different interpretations. In this context, Aquinas revealed the relationship of law with the common good with the statement “Law is an ordination of reason for the common good by one who has the care of the community, and promulgated” (Morgan, 2006, p. 465). On the other hand, J. Austin states a different definition for law as follows: “Laws are general comands issued by a sovereign…” (Austin, 1832). So, there is an approach that defines law as the will of the sovereign itself, that thinks that the sovereign’s commands shape the law, and that accepts the law as what the sovereign says, whoever rules, be it king/emperor/feudal lord, rather than structural/institutional approaches. In this context, the thoughts of classical thinkers will also be included in the later parts of the study.

Natural Law

The definition of natural law has more pastoral traces throughout the ages. It is thought that natural law is the product of nature and the human mind, that it will not change from state to state, from geography to geography, from country to country, that it is a set of exponential rules, and that it is closely related to the nature. Sure, just as there are pros and cons against every thesis, there are those who oppose natural law, who claim that nature does not provide us with guiding arguments in specific areas (ship trade, checks/promissory notes, interest). There are also those who argue that we should look at the order and system of nature and get inspiration from it. One of the clearest answers to what natural law includes is given by T. Aquinas as follows: “constitutes the basic principles of practical rationality” (Aquinas, 2013 ed.) Thus natural law will constitute a source of inspiration, basis, foundation, and essence for every norm to be derived. In this context, it is possible to mention that there have been advocates of natural law since ancient times, such as Aristotle from ancient times, Aquinas from the middle ages, and various authors in modern times, as names that defended natural law to certain extents.

Positive Law

When evaluating positive law, rather than the pastoral approach found in natural law, more structuralist elements draw attention in defining positive law. Because, in a fundamental sense, positive law consists of a set of rules prepared for a certain mass (country population, signatory countries, parties) by a certain authority authorized by law, in accordance with the procedure (referendum, parliament, senate) and legislated. One of the striking definitions given for positive law is expressed by Shapiro as “plan based system of social order” (Shapiro, 2002). Since positive law is prepared, declared and enforced by a specific authority, some authors -such as J. Austin- see positive law as the will, commands and orders of the sovereign power that prepares, declares and enforces positive law. Positive law is thought to be more structural, formal, rigid and frozen than natural law. In response to these criticisms, supporters of positive law state that structural, formal, rigid and frozen elements are a dimension of trying to make it impossible to leave positive law to the whims of the sovereign, thus positive law is more predictable, transparent and egalitarian in contrast to the uncertainty in natural law. Hart, one of the important thinkers of the modern age, states that positive law continues its vitality on the individual will to recognize the rule. In the following parts of the study, Hart’s thoughts will also be discussed in an explanatory manner.

Morality

Although morality has been discussed extensively by various groups for centuries, it has been one of the most controversial basic concepts throughout human history due to the opposing ideas put forward by various thinkers. For centuries, the source of morality, the relationship between morality and religion, the universality of morality, the locality of morality, and the necessity for morality have been debated. The most comprehensive definition that can be made about morality, where all thinkers who put forward ideas in favor and against are evaluated as a whole, can be as follows: Morality is an entity/thing that allows us to make choices between right and wrong; good and bad. The use of the term entity is not for the purpose of considering morality in a material form. In fact, morality is free from many binding factors such as form and institution. The definition in the Stanford Encyclopedia related morality is also noteworthy: “a code of conduct that, given specified conditions, would be endorsed by all rational people”  (Stanford Encyclopedia of Philosophy, 2002). Although it can be claimed that morality can be shaped by social traditions and Bourdieu’s key concept “habitus”, the individual himself/herself is the one who will make the final choice between right and wrong or good and bad.

III. Moral Foundations

Although their definitions do not create any controversy, the source, origin and justification of natural law and positive law have always been debated. In particular, the origin of the current positive law rules is a serious matter of debate among contemporaries. For this reason, the moral foundations of natural law and the moral foundations of positive law emerge as two topics that need to be carefully examined. In this context, the moral foundations of natural law and the moral foundations of positive law will be discussed in outline in the following lines.

Moral Foundations of Natural Law

According to the most general acceptance in academic circles, the moral basis of natural law is not based on any institution, person, autocrat, or bureaucrat. Even if the law is the command of a sovereign, it may not be considered moral. Natural law is the systematization of moral principles derived from nature. Therefore, the moral basis of natural law is not a revelation, divine book, or prophet, but rather the values inherent in human reason and nature. According to various thinkers who adopt a pro-natural law stance within political philosophy, it is argued that law cannot be a set of rules dictated by the sovereign and his interests, but must include objective values inherent in human nature. When it is necessary to talk about the supporters of natural law with more concrete examples, it can easily be claimed that Aristotle was also a supporter of natural law, considering the ancient times. Indeed, it will be seen that the concept of “virtue”, which this thinker frequently mentions, has a depth of meaning that is compatible with the description of natural law outlined in the above lines. It can easily be claimed that the famous Italian thinker Thomas Aquinas, who greatly influenced his era and those who came after him, was also a supporter of natural law. Thomas Aquinas’ interpretation of the set of rules systematized by the reflection of God’s eternal mind in human reason as natural law is a sufficient assessment to express this claim. The famous Dutch thinker Hugo Grotius, who drew attention in the subject of natural law, also had a striking effect against this rigid idea put forward by various groups that the moral basis of natural law should be based on a religion or a creator, with his works expressing the legitimacy of natural law by ignoring the existence of God theologically. Although many academics and thinkers who support natural law have put forward remarkable and striking evaluations in the recent era, it will not be possible to evaluate all of them within the scope of this study.

Moral Foundations of Positive Law

It can be considered relatively easier to grasp the moral foundations of positive law than the moral foundations of natural law. Because, the moral foundations of positive law can be easily understood when the legislative activity required by the system to which it is subjected is carried out by an authority with the power to legislate, then the enactment of the law and the application of the enacted norms are carefully examined. The moral foundation of positive law is based on the implementation of the will to ensure that society lives in peace, tranquility and harmony through normative regulations in its simplest form. It is quite natural that this situation is an evaluation based on legitimacy rather than an evaluation related to morality. Because, within the framework of positive law, whether the laws are valid or not does not depend on their being moral. Normally, even if a legitimate law is immoral, it can be applied in positive law systems if there is no doubt about its validity.

The famous English thinker Thomas Hobbes, who draws attention with his important arguments in political philosophy, associates the legitimacy of law with absolute sovereignty. Even, T. Hobbes directly states that: “Law in general is not counsel, but command (…)” (Oakeshott, 2017). On the other hand, John Austin, who expanded and strengthened this front by presenting a similar approach, evaluates law as a set of commands put forward by the sovereign in case the legal steps presented and explained in the above lines are completed. This approach has taken its place in political philosophy as the “command theory of law” and has been carefully examined by many academics and thinkers later on. The Austrian thinker Hans Kelsen, whose work was talked about at the beginning of the 20th century and received serious response in the legal community, also explains the validity of law through norms and states that it is possible to understand law from the perspective of the hierarchy of norms. In his book, Kelsen summarizes what should be understood by the norm as follows: “By “norm” we mean that something ought to be or ought to happen, especially that a human being ought to behave in a specific way.” (Kelsen, 1967).When examined with a general evaluation, the fundamental value that the supporters of positive law take into consideration is not whether the law is moral or not, but whether the norm and law in question has the legal conditions required by the legislature. Because, on this point, some contemporary thinkers also hold the opinion that rules enacted by a majority vote or unanimity by a parliament or senate that is legitimate, does not have elements of coup or autocracy, and represents different colors and ideas are far from having the characteristics that would constitute immorality.

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