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Natural Law

These so often mentioned unalienable rights are rooted in natural law[21]. By this we mean those social orders which seek to derive generally valid standards from the nature of human beings, which purport to be Positive Law and which can be unlocked with reason.[22] Problematic, however, is how such a Natural Law should be recognised and what its contents actually mean, above all there is also the question of who has the competence to define the contents of such a Law.[23] It is human reason, which the system can detect, and according to which human will must act, in order to fulfil the essential goals of human essence. The human understanding of Natural Law is increasing little by little with the growth of moral awareness.[24] It is therefore not inconvertible.

A practical awareness that all humans have in common in a natural and inherent way consists of the idea that one should do good and avoid doing evil. We acknowledge the idea that murder of people who are different-minded or of different religions, nations and ethnic groups, as well as the elderly or the sick cannot be right. We adjudge the killing of people simply because they want to leave the country as wrong; we abhor cruelty, every physical and psychological injury to others, the denunciation of parents and lies in the service of a party even when the Law stipulates that they are moral and justifiable.

Human rights can also be gathered from natural law because a human is a person making decisions about himself and his behaviour alone. There are therefore things that come to a person because he is a person. Because we have privilege to belong to the world of spirits, we possess rights over other human beings and all creatures.[25] That is basically the preamble of natural law; it is not the law itself. The natural law is the sum of all the rights that people enjoy. A person has the right to live, because all people want to survive. The same natural law that provides us with the basic rights also dictates our fundamental obligations, obligations that a person should respect, the things that one should do and should not do.

The natural law principles allow “their transmission to inferential derivatives not in all areas of political activity but only in those cases in which a direct ethical-moral issue comes into question”[26]. Furthermore it must be emphasised that natural law can provide us with fundamental ideas but it cannot boast a detailed programme. The opponents of Natural Law[27] argue against the natural law doctrine by saying that it undermines the authority of the state because it is not the state which stands sovereign at the top but a set of laws which are higher than the state and that endanger each specific regulation and legal certainty[28]. It therefore stands to reason, that currently, in totalitarian States and social orders, the existence of pre-governmental rights is principally denied because, if it were otherwise, the state would have to give up its claimed power of disposition over its people.[29] This means that no objective or completely absolute values are recognised and the state alone formulates its legal values according to its own arrangements. According to this doctrine of positive law, there are no inherent human rights; at least, they cannot be proven. Only what the state declares to be law is valid[30]. This means, as written in commentary to the constitution of the former German Democratic Republic[31], that it is strange to the socialist concept of basic rights to derive rights given by humans and the human society from celestial commands, transpositive, or other similar metaphysical reasons. According to the view of legal positivists, a right is something “legal”, something made and decided upon by people. Legal positivists condemn speculative ideas about a law that is found in nature and which people, through their reasonableness or whatever, can always find. Laws are held to be created and invented not discovered or found. For this reason they also cannot differentiate between rights and laws because, in their view, all laws are rights. This view was always steadfastly opposed by respected authorities.




Date: 2015-02-16; view: 707


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Commitment to natural freedom in codifications | II. The Natural Freedom of Man
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