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

The Integration of Natural Law and Positive Law

In the first and middle sections of the study, we have referred to trends in various periods and some solutions formulated by various thinkers for pages. Thus, the academic evaluation ground and theoretical knowledge that was intended to be comprehended were formed with their outlines. The question that constitutes the essence of the study is whether an integration can be achieved between natural law and positive law. Sure, without considering what the elements in the question are, what their limits are, and whether the same meanings can be derived from these elements, a healthy answer to this extremely comprehensive and innovative question could not be found.

In order to better understand the question “Can natural law and positive law be integrated?”, which constitutes the essence of the study, it is necessary to determine what should be understood from “integration” at this point. In this study, integration should not be understood as adding, welding, or connecting in the engineering or medical sense. Naturally, integration is the integration of different elements through mutual interaction. Since the nature of law does not include material elements, integration cannot be mentioned through articulation or connection. Throughout the study, the meaning attempted to be conveyed by the phrase integration is to bring together the harmonious and balanced elements of natural law and positive law to achieve a meaningful, functional whole. Naturally, the question of how this is possible will come to mind.

The answer to the question that forms the essence of the study can be found by starting from the nature and function of law. Although whether law itself is a science or not has caused deep debates among law academicians, it is indisputable that law is an extremely intricate, complex, and indispensable discipline. Even, it can be claimed that it is multifaceted, multidimensional, multilayered, and multicolored.

While the relationship between the values ​​of (a) and (b) is clear and predictable in numerical sciences, the penalty that the perpetrator will receive in a crime committed by the perpetrator is not as clear and fixed as it is in numerical sciences, despite the existence of all penal laws. In fact, according to the general penal theory, a crime has material and moral elements. To explain by giving an example: The material elements of the crime consist of two parts. These are the result that occurs at the end of the action and the movement that creates the action. Sure, the movement that creates the action can also occur in two ways: Passive behavior and active behavior. Strangling a person to death is an active behavior. A lifeguard’s failure to intervene in a drowning person, and literally being inactive, can be given as an example of passive behavior. There is an invisible relationship even between the result and the movement that constitute the material elements of the crime. This invisible relationship is often expressed as a causal link. In the example above, the person who had a severe crisis due to the lifeguard not intervening in the drowning person was being taken to the hospital by ambulance, and if the person lost their life as a result of an accident caused by the ambulance, the lifeguard would be legally liable for their passive behavior, but the causal link would be severed as of the moment the person was carried to the ambulance. In other words, the lifeguard is not criminally liable for the death that occurred as a result of the accident involving the ambulance, but their legal liability for their passive behavior continues (References 11, 12).

It was stated that crime has material and moral elements. When it comes to the moral elements of crime, the case-based approach of law will be understood much more clearly in this section. The moral elements of crime are basically divided into two: Intent and negligence. In cases where an action is acted on purpose, even though it is known that it leads to a crime, the existence of intent is accepted in the concrete case according to the general criminal theory. In cases where an action is caused unknowingly, unintentionally, accidentally or inadvertently, even though it is known that it leads to a crime, the existence of fault can also be mentioned, and this situation is called negligence within the scope of the general criminal theory. Sure, there are sub-divisions regarding intent and negligence in the depths of the general criminal theory. These are classified in the literature as “possible intent” and “conscious negligence”. Possible intent is when the result of the action is foreseen but not done for the result to occur, but acts with a will that will not prevent it from happening. Conscious negligence, on the other hand, is acting with the confidence that the outcome will not occur as a result of the action.

Although it may seem extremely strange to those who are not familiar with it, not every unlawful act is punished. Within the scope of criminal theory, there are situations that eliminate unlawfulness. It can be stated that while there are actions such as assault, force, and murder that the police carry out against a terrorist organization in order to establish general security, public order, and social peace while performing their public duty, the unlawfulness is eliminated on the grounds of public duty as long as there are legal reasons. Even if an individual acts with force and intent to ward off an attack directed at him, if the action is deemed necessary, proportionate and proportionate within the limits of self-defense, he will not be punished even if the action constitutes a crime. If the person committing the act is under the age of 18, and does not have the ability to discern without loss due to his own fault, the amount of the penalty will be reduced (References 11, 12).

We can clarify this theoretical framework, which is put forward to explain the flexibility of law, its unpredictability, and its difference from numerical and natural sciences with concrete examples, with a concrete example. Considering that Person (X) killed Person (Y), there will be a difference in criminal liability between intentional killing and negligent killing. While killing with a monstrous feeling is a reason for increase, not acting with a monstrous feeling is a reason for decrease. There will be a difference between committing the crime at night and during the day. There will be a difference between X being under the age of 18 and being over. There will be a difference between X losing his ability to discern due to the drugs he uses for his health and losing it by drinking alcohol. There will be a difference between X having a criminal record and X not having been involved in any crime before. This framework, which can be increased and transformed into infinite possibilities, will lead to different punishment methods for different perpetrators who commit the same crime, despite the predictability based on the existence of criminal laws.

The basic message that is tried to be explained with concrete examples is this: Law is a discipline that makes evaluations according to the requirements of the case, the characteristics of the case, and the conditions of the case. While there are countless possibilities and conditions even in one of the sub-branches within this discipline – within itself -, approaching the law as a whole with uniform evaluations will definitely lead the individual to an inaccurate conclusion.

When considering the issue of whether the integration of natural law and positive law is possible, I think that benefiting from the thoughts of two valuable philosophers (Harold McKinnon and British philosopher and professor Herbert Lionel Adolphus Hart) is a key to the solution. In the previous parts of the study, we explained the academic approach put forward by McKinnon. In order not to repeat the same things again, in this part, only the thoughts of Herbert Lionel Adolphus Hart will be included.

H.L.A. Hart mentions, in his masterpiece named The Concept of Law, that law is a system of rules. According to Hart, these systems are classified under 2 headings, which he calls primary rules and secondary rules. Primary rules include rules that tell individuals what to do and what not to do. These rules can be thought of as rules that include orders such as “do not kill” and “do not steal”. Secondary rules are defined with 3 main rules under them. Secondary rules are generally rules that reveal how the primary rules will be applied, how they will be protected and how they can be sustained. The first rule of secondary rules is defined as the rule of recognition. This rule determines which rules will be valid and fundamental within the legal system, just like the constitution. The second rule of secondary rules is the rule of change. These are rules that determine the limits of legislative activity and how legal rules will be determined. The third rule of secondary rules is the rule of adjudication. This rule determines the procedures regarding how the trial will be conducted within the legal system. Hart also explains how to avoid confusion in this hierarchy as follows: “Moreover, where more than one of such general characteristics are treated as identifying criteria, provision may be made for their possible conflict by their arrangement in an order of superiority, as by the common subordination of custom or precedent to statute, the latter being a ‘superior source’ of law.” (Hart, 1961, 95).

When the principles, precepts and rules put forward by McKinnon, whose thoughts are included in the study, and the primary and secondary rules approach put forward by Hart are considered together, they provide a strong perspective for the integration expected to be achieved between natural law and positive law.

In this context, as both a lawyer and a person who has been educating in the field of political philosophy, my thesis can be easily explained in the light of this information: Law is a discipline that is extremely comprehensive and has different branches/fields. In modern times, where we are in direct interaction with millions of people, where we desire to continue our common life in peace and tranquility, and where we constantly feel the transformative effect of technology, it is not appropriate to see law as a single system, or to be only a supporter of natural law or only positive law. Law has sub-branches that exhibit different characteristics. In areas where law is connected to philosophy and political science related to human rights, constitutional rights and fundamental rights, the approach of natural law based on moral principles and human nature can be accepted as the basis. Defined as rules by McKinnon; In the legal fields related to technical reasoning, defined as secondary rules by Hart (check, promissory note, insurance, interest, composition, bankruptcy, enforcement, seizure, procedural law, notification, guarantee, etc.), the institution and rule-based approach of positive law, which provides normative clarity, predictability and transaction security, can be taken as basis. Thus, law will be better understood in all its fields and scope, and the advantages and aspects of natural law and positive law will be evaluated in relevant fields.

Conclusion: The integration within a harmony is possible by noticing sub-branches of law

The study includes an introduction that explained the main framework of the study, explanations that give the definitions of the basic concepts such as law, natural law, positive law, morality to be used in the study and their boundaries according to the contexts in which they have been used, the moral foundations of natural law and positive law, various contemporary interpretations of the tensions and relations between positive law and natural law, and finally the integration that natural law and positive law can establish within the boundaries of modern law.

The thesis reached as a result of the study is that law should be considered as a discipline that is extremely comprehensive, complex, and has various branches.  The basic way to establish a connection between natural law and positive law is to know the law and to be aware of the sub-branches of law. In addition, the subjects that the branches of law deal with and the principles that these subjects accept as elements should be known very well. Although some branches of law directly include various regulations related to fundamental rights and abstract moral values, some branches of law expect normative clarity, predictability and transparency, in contrast to abstract moral evaluations. Otherwise, the functionality of the law and the system of law that the thinkers talk about will be disrupted. The integration of natural law and positive law in question, which we are looking for answers to whether the entire study is possible or not,  can be achieved with the inspiring thoughts and classifications put forward by Hart and H. McKinnon, that natural law should be taken as the basis in areas of law based on moral principles, and that positive law should be taken as the basis in technical areas that require normative clarity.

Semih TEMİZER

References

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2. Aquinas, T. (2013). Summa theologiae. Stephen Reynolds, 223.
3. González, A. M. (2016). Contemporary perspectives on natural law: Natural law as a limiting concept. Routledge.
4. Hart, H. L. A. (1961). The concept of law.
5. Kelsen, H. (1967). The Pure Theory of Law, University of California Press.
6. Morgan, M. L. (Ed.). (2006). Classics of moral and political theory. Hackett Publishing.
7. Stanford Encyclopedia of Philosophy (2002), date: 20.06.2025, https://plato.stanford.edu/entries/morality-definition/
8. McKinnon, H. R. (1947). Natural Law and Positive Law. Notre Dame Law., 23, 125.
9. Oakeshott, M. (2017). Introduction to Leviathan. In Thomas Hobbes (pp. 3-76). Routledge.
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11. Turkish Grand National Assembly, (2004), Turkish Penal Code (Law Number: 5237)
12. Turkish Grand National Assembly, (2004), Criminal Procedure Code (Law Number: 5271)