Iusnaturalismo y Positivismo Jurídico (N. Bobbio) PDF

# El problema del Positivismo Jurídico ## **III. Jusnaturalismo y Positivismo Jurídico** ### **1. Definición de los dos términos** The distinction between the different meanings of the expression "legal positivism", presented in the previous chapter, can also be used for another purpose: to elim...

# El problema del Positivismo Jurídico ## **III. Jusnaturalismo y Positivismo Jurídico** ### **1. Definición de los dos términos** The distinction between the different meanings of the expression "legal positivism", presented in the previous chapter, can also be used for another purpose: to eliminate many misunderstandings in the traditional dispute between the supporters of natural law and legal positivism. The intensity of the controversy can actually lead one to believe that it is a matter of two entirely opposed conceptions and that one must choose between them: either one is a natural law theorist, or one is a legal positivist. On the contrary, I argue that: (1) the expressions "natural law" and "legal positivism" have been adopted with such diverse meanings that the relationship between the two currents is located on different levels depending on which meaning is being considered; (2) only in one of these meanings do they constitute a true and authentic alternative. It is precisely due to the failure to consider the different levels that a curious consequence arises: often, the rival arguments do not meet each other, so that after the duel to the death, both remain more alive than at the beginning. ### **2. Three Forms of Natural Law** Natural law, as we have said, affirms the superiority of natural law over positive law. This superiority has been defended, in broad strokes, in three ways, which distinguish three typical forms of natural law: Scholastic, Modern Rationalist, and Hobbesian (I do not find a better name for the latter). **(1)** Natural law is the set of first ethical principles, very general, from which the human lawmaker should draw inspiration for the formulation of positive law rules; the latter, according to the well-known exposition by St. Thomas, derives from what is natural, per conclusionem, or per determinationem. In this sense, natural law is a system composed of very few norms (some say only one norm) whose beneficiaries are not all humans, but primarily lawmakers. The fact that those who benefit from natural law are primarily lawmakers leads to the consequence that subjects, in some cases, are obligated to obey even unjust laws because they are legitimately promulgated. **(2)** Natural law is the set of dictamina rectae rationis that provide the material for regulation, while positive law is the set of practical-political means (such as the institution and organization of a coercive power) that determine the form of those dictamina; or, in other words, the former constitutes the prescriptive part of the rule, the part that attributes normative qualification to certain behavior, and the latter the punitive part, the part that enforces the rule in a world that, like the human world, is dominated by passions that prevent the majority from following the dictates of reason. According to Kantian terminology, which in my opinion reproduces this point of view accurately, the distinction between natural law and positive law corresponds to the distinction between prescriptive law and prohibitive law; what changes in positive law with respect to natural law is not the content, but the various procedures used to impose it. In this sense, natural law is the product of the co-existence of individuals outside the state (that is, in the state of nature), and therefore, it is addressed not only to the lawmaker, but also to individuals. **(3)** Natural law is the foundation or support of all positive legal order. Unlike the previous theory, here, the content of regulation is exclusively determined by the human lawmaker (the sovereign): the function of natural law is simply to provide a foundation of legitimacy for the power of the human lawmaker, prescribing obedience to subjects for all that the sovereign orders. In this conception, which in my opinion characterizes Hobbes' theory, natural law is reduced to just one norm. In a society of equals, "promises should be kept"; in a society of unequals, "one should obey the orders of the sovereign". # El problema del Positivismo Jurídico ## **II. Jusnaturalismo y Positivismo Jurídico** ### **3. Three Moments of Positivist Criticism** The distinction between the three main forms of natural law, presented in the previous paragraph, allows one to identify and review the three main moments of positivist criticism. Each of the three forms of natural law represents a way of affirming that positive law is dependent on natural law; the three main moments of positivist criticism represent the various ways in which natural law has been displaced, if not completely eliminated, from the positions in which it has repeatedly been situated. - Against the first position of natural law -the traditional or Scholastic position, according to which natural law is the set of first ethical principles- legal positivism has used historicist criticism, which does not admit ethical principles that are obvious in themselves, with absolute and universal value. The so-called primary natural laws are merely formal (like bonum faciendum, male vitandum), and therefore, they can be filled with any content and interpreted by each person in their own way. All the main philosophical currents of the past century have been anti-natural law theorists, from the historicism of the right to the left, from evolutionist positivism to the sociological, from utilitarianism to pragmatism, and even to irrationalism. Legal positivism has taken all the consequences from there; these are: if there are no universally valid laws of conduct, if the laws that govern the life and society of humans are mutable over time, there is no other criterion of good and evil than that which is established from time to time by the constituted authority, the human legislator, the sovereign. It is possible to have multiple interpretations of natural law, the safest interpretation is the one that has the support of history, which is manifested in the form of political success (Realist theories) or the approval of the majority (democratic theories). - Against the second form of natural law, positivist criticism has been increasingly clear in affirming that there are no privileged legal matters, and therefore, that any behavior can become the content of a legal norm. What makes a rule of conduct into a legal norm is not its content, but the way in which it is created or enforced. Here is where we find typical positivist doctrines of law, such as a mandate from the sovereign or as a coercive norm; doctrines whose characteristic consists of shifting the constitutive element of the concept of law, from the matter to the form of the legal rule (hence the frequent identification of legal positivism and formalism). In Kantian terms, one could say that legal positivism is, in this sense, the doctrine that, denying the character of law even to prescriptive law, makes legal coercion the essential characteristic of law. - The third and final position of natural law is the one that, as we have seen, attributes to natural law the function of an atlas of the positive legal system, or of a fundamental norm of the system. Against this position, we find the positivist principle par excellence of the foundation of law, not on another law (which would imply an infinite regression), but on a fact, that is, the principle of effectiveness. What makes a set of rules of conduct constitute a legal order in a given society is not the existence of a duty of obedience by its members, derived from extra-positive law, but the fact, the simple fact, historically verifiable, that the order is habitually obeyed by most of those to whom it is addressed. When some author has wanted to continue defending the natural law theory of the fundamental norm, it has been transformed, as in the doctrine of Kelsen and his supporters, not into a norm equal to all others, but rather into a scientific hypothesis, or into a norm regarding which the question of validity cannot be raised, as it can be raised regarding other norms, since its existence can only be admitted when its effectiveness is verified. ### **4. Something More about the Three Forms of Legal Positivism** If we closely observe these three moments of positivist criticism, we see that each one of them gives rise to the three main forms in which legal positivism has historically been presented, and about which I have already called attention, individualizing, in the vast and complex phenomenon of legal positivism, sometimes a justice ideology (ethics), or a general theory of law, or a way of understanding legal science (in a very broad sense, a method). - In its first aspect, or rather, as an ideology, legal positivism is ultimately reduced to the affirmation that valid laws should be obeyed unconditionally, that is, regardless of their content, or that there is a moral obligation to obey all valid laws. At other times I have called this position "formalist ethics", defining it succinctly as the conception that reduces justice to validity, since it considers laws just simply because they are valid. Here, I will limit myself to pointing out that this conception can be considered as a response to the skeptical position in which, sometimes, historicist and relativist polemics against natural law end up. Where there is no objective moral law accessible to human reason, it might seem that the only remedy against the confusion of moral judgments, which prompts violence and anarchy, is submission to the artificial reason of the sovereign (Hobbes), or to the historical reason that is realized each time in the general will (Rousseau), or in the state (Hegel). - In the second aspect, as a general legal Theory, legal positivism has fostered a particular current of legal thought, characterized by reducing law to state law, and the latter to products of the legislator; from here comes the common attribution to law, those characteristics that are typical of the state-made law of the modern state (generality, imperativeness, coercion, presumed plentitude). However, it seems to me that this current can be illuminated by appealing to the second moment of the positivist critique, that is, to the moment through which there is a radical shift from a material consideration of law -typical of extreme natural law- to a merely instrumental one. This is the consideration according to which, # El problema del Positivismo Jurídico ## **II. Jusnaturalismo y Positivismo Jurídico** ### **5. Relationship between Natural Law and Legal Positivism as Ideologies** Once we have shown that there are three different forms of legal positivism, the next step in this investigation consists of showing that the relationship between legal positivism and natural law presents itself differently in each of the three different forms; so diversely that the simple opposition, because it is too generic, can lead us astray. - Simple opposition only works when it is referred to the relationship between legal positivism as an ideology and natural law as an ideology. Here, the opposition is clear, to the point that it poses an alternative. The fundamental maxim of legal positivism as an ideology can be formulated in this way: "Laws should be obeyed as such"; the one of natural law, in this other way: "Laws should be obeyed only insofar as they are just". In the first case, laws themselves are the criterion of justice and injustice; in the second, laws are subject in turn to a higher criterion of evaluation (which is considered attainable, in natural law ethics, from knowledge of human nature). In the first case, one might speak of legalist ethics, according to which only legal justice exists; in the second, of naturalist ethics, according to which natural justice also exists (or exists only). Note that the anti-positivist polemic carried out in recent years by the reborn and invigorated natural law is an ideological polemic; that is, a polemic in which what is imputed to legal positivism is a certain position, or, in other words, the surreptitious passage from a certain method of investigation or from a certain theory to the declaration and exaltation of certain ideals that would later become the condemned ideals of the cult of the State, of the exaltation of the leader, of depersonalization, etc., etc. I am not examining the historical basis for attributing such egregious faults to legal positivism here, since I have examined this on other occasions. I will simply emphasize that, if it is considered not as a method or a theory of law, but rather as a justice ideology, natural law is presented here not as another method or another theory, but as another ideology, and the relationship between the two, at this level, is a relationship between two moralities that exclude each other. - I would only add that even at this level, the opposition between legal positivism and natural law is not always so clear. So far, the opposition has been presented in this way because we have kept in mind the most extreme versions of the two ideologies. But these extreme versions often exist only in the reconstructions that are made of them by adversaries in order to obtain an easier target. # El problema del Positivismo Jurídico ## **II. Jusnaturalismo y Positivismo Jurídico** ### **6. Relationship between Natural Law and Legal Positivism as General Theories of Law** - The matter presents itself differently when considering the relationship between legal positivism and natural law, when both ideas are considered and contrasted as general theories of law, that is, as ways of understanding and explaining the legal phenomenon. In this contrast, we are dealing with the old distinction between a voluntarist concept (ratione imperii) and a rationalist concept (imperio rationis) of law. The legal positivism defended by jurists is not an exaltation of the State as a moral force; it has nothing to do with the cult of the State. It is merely a theoretical elaboration -one might say the dogmatic elaboration- of legal voluntarism. Once law is understood as the will of the sovereign, the dogma of the supremacy of law over other sources, and of the norm as an imperative, follows the invocation of tacit will to justify custom, and the assumed will to justify the expansion of the system beyond express formulas. - Similarly, if the history of natural law is considered without prejudice, it is observed that natural law doctrines, # El problema del Positivismo Jurídico ## **II. Jusnaturalismo y Positivismo Jurídico** ### **7. Relationship between Natural Law and Legal Positivism as Different Ways of Approaching the Study of Law** Finally, let's analyze the contrast between legal positivism and natural law when it comes to considering legal positivism as a way of approaching the study of law, specifically as that method which, setting aside all value judgments, directs itself to law as a historical and social fact and studies it using a scientific method. Only in this sense does legal positivism have something in common with philosophical positivism; in fact, it could be said that the specific characteristic of legal positivism in this sense is the adoption of the positive method for the study of positive law. In this sentence, the term "positive" appears twice: first, in the sense of philosophical positivism; second, in the sense of legal positivism. # El problema del Positivismo Jurídico ## **II. Jusnaturalismo y Positivismo Jurídico** ### **8. Conclusions** - If we now summarize the exposition of the three forms under which, in our opinion, the relationship between natural law and legal positivism has historically been presented, we observe that in these three forms, one and the other behave reciprocally very differently. - In the sense of being two different justice ideologies, natural law and legal positivism are incompatible (in their extreme forms); moreover, they represent an alternative for which it is impossible to avoid choosing. They thus tend to behave as two contradictory propositions that cannot be accepted or rejected both. - When they are presented as two different general theories of law, natural law and legal positivism are also incompatible, in the sense that it is impossible to simultaneously uphold the superiority of natural law over positive law and the exclusivity of positive law. Yet, they tend to behave more like two opposing propositions that cannot be accepted at the same time, although both can be rejected: A theory, for example, that would argue that natural law and positive law are two species of the genus law, would be neither a natural law nor a positivist theory, but a tertium quid between the two extremes. - Finally, when they are presented as two different ways of approaching legal experience - the way of taking a position and the way of knowing - natural law and legal positivism are perfectly compatible since they operate on two different levels; on the one hand, the evaluation of the justice of laws with a view toward reform and, on the other hand, the interpretation of laws with a view toward better systematization, theoretically, and, therefore, better practical application; in this case, the controversy between the proponents of one position or another is completely sterile. At most, one could add that, just as in this third situation, it is possible to discern a relationship of conflict when it is understood - as we have noted in the preceding paragraph - that the insistence on natural law is a demand for a value-based definition of law, so too, in the first situation (opposition between the two ideologies), it is possible to discern a relationship of convergence, where moderate natural law and moderate positivism meet. This is further confirmation of the main topic of this work, namely that the relations between natural law and legal positivism - these, so to speak, fraternal enemies- are very varied and complex. One could say jokingly that when they confront each other as ideologies, they are enemies, but not brothers; when they confront each other as theories, they are neither brothers nor enemies; when they confront each other as different approaches to legal experience, they are brothers and not enemies. - If we return now to the starting point, that is, to the definitions of natural law and legal positivism given in the first paragraph and summarized in this one - the mentioned superiority of natural law, characteristic of natural law, and the mentioned exclusivity of positive law, characteristic of legal positivism - on the plane of the ideological relationship, the superiority of natural law means that there are rules of conduct whose validity is the foundation of the validity of positive law rules, and, as such, they must be obeyed in preference to the latter. On the plane of the theoretical relationship, the superiority of natural law means that recourse to nature rather than to the will of the legislator offers a more adequate explanation of the legal phenomenon and a firmer basis for constructing a general theory of law. On the methodological plane, the superiority of natural law means that, alongside the non-value-based scientific study of law, if room is given to calls for a critique of the law, the best way to carry it out is to use the suggestions that come from the tradition of natural law. - Similarly, the exclusivity of positive law means, first, that one must obey unconditionally the laws established by the legislature because there are no higher laws than them; second, that natural law is not a form of law that can be placed alongside the various forms of positive law; third, that positive law is the sole object of study of jurisprudence as science. - One of the aims - and certainly not the least - of this study, which shows the variety and complexity of the relations between natural law and legal positivism, was to recommend henceforth a certain caution in attributing to this or that author the merit (or demerit) of being a natural law theorist or a legal positivist. As Cattaneo has shown in his study on legal positivism in England,6 authors who were considered to be typical representatives of the positivist tradition, # El problema del Positivismo Jurídico ## **II. Jusnaturalismo y Positivismo Jurídico** **8. Conclusions** - If we now summarize the exposition of the three forms under which, in our opinion, the relationship between natural law and legal positivism has historically been presented, we observe that in these three forms, one and the other behave reciprocally very differently. - In the sense of being two different justice ideologies, natural law and legal positivism are *incompatible* (in their extreme forms); moreover, they represent an alternative for which it is impossible to avoid choosing. They thus tend to behave as two *contradictory* propositions that cannot be accepted or rejected both. - When they are presented as two different general theories of law, natural law and legal positivism are also *incompatible*, in the sense that it is impossible to simultaneously uphold the superiority of natural law over positive law and the exclusivity of positive law. Yet, they tend to behave more like two *contradictory* propositions that cannot be accepted at the same time, although both can be rejected: A theory, for example, that would argue that natural law and positive law are two species of the genus law, would be neither a natural law nor a positivist theory, but a *tertium quid* between the two extremes. - Finally, when they are presented as two different ways of approaching legal experience—the way of taking a position and the way of knowing—natural law and legal positivism are *perfectly compatible* since they operate on two different levels: on the one hand, the evaluation of the justice of laws with a view toward reform and, on the other hand, the interpretation of laws with a view toward better systematization, theoretically, and, therefore, better practical application; in this case, the controversy between the proponents of one position or another is completely sterile. At most, one could add that, just as in this third situation, it is possible to discern a relationship of conflict when it is understood—as we have noted in the preceding paragraph—that the insistence on natural law is a demand for a value-based definition of law, so too, in the first situation (opposition between the two ideologies), it is possible to discern a relationship of *convergence*, where moderate natural law theory and moderate legal positivism meet. This is further confirmation of the main topic of this work, namely that the relations between natural law and legal positivism—these, so to speak, fraternal enemies—are very varied and complex. One could say jokingly that when they confront each other as ideologies, they are enemies, but not brothers; when they confront each other as theories, they are neither brothers nor enemies; when they confront each other as different approaches to legal experience, they are brothers and not enemies. - If we return now to the starting point, that is, to the definitions of natural law and legal positivism given in the first paragraph and summarized in this one—the mentioned *superiority* of natural law, characteristic of natural law, and the mentioned *exclusivity* of positive law, characteristic of legal positivism—on the plane of the ideological relationship, the superiority of natural law means that there are rules of conduct whose validity is the foundation of the validity of positive law rules, and, as such, they must be obeyed in preference to the latter. On the *plane of the theoretical relationship*, the superiority of natural law means that recourse to nature rather than to the will of the legislator offers a more adequate explanation of the legal phenomenon and a firmer basis for constructing a general theory of law. On the *methodological plane*, the superiority of natural law means that, alongside the non-value-based scientific study of law, if room is given to calls for a critique of the law, the best way to carry it out is to use the suggestions that come from the tradition of natural law. - Similarly, the *exclusivity* of positive law means, first, that one must obey *unconditionally* the laws established by the legislature because there are no higher laws than them; second, that natural law is not a form of law that can be placed alongside the various forms of positive law; third, that positive law is the sole object of study of jurisprudence as science. - One of the aims—and certainly not the least—of this study, which shows the variety and complexity of the relations between natural law and legal positivism, was to recommend henceforth a certain *caution* in attributing to this or that author the merit (or demerit) of being a natural law theorist or a legal positivist. As Cattaneo has shown in his study on legal positivism in England,6 authors who were considered to be typical representatives of the *positivist* tradition, # El problema del Positivismo Jurídico ## **II. Jusnaturalismo y Positivismo Jurídico** ### **8. Conclusions** - If we now summarize the exposition of the three forms under which, in our opinion, the relationship between natural law and legal positivism has historically been presented, we observe that in these three forms, one and the other behave reciprocally very differently. - In the sense of being two different justice ideologies, natural law and legal positivism are _incompatible_ (in their extreme forms); moreover, they represent an alternative for which it is impossible to avoid choosing. They thus tend to behave as two _contradictory_ propositions that cannot be accepted or rejected both. - When they are presented as two different general theories of law, natural law and legal positivism are also _incompatible_, in the sense that it is impossible to simultaneously uphold the superiority of natural law over positive law and the exclusivity of positive law. Yet, they tend to behave more like two _contradictory_ propositions that cannot be accepted at the same time, although both can be rejected: A theory, for example, that would argue that natural law and positive law are two species of the genus law, would be neither a natural law nor a positivist theory, but a _tertium quid_ between the two extremes. - Finally, when they are presented as two different ways of approaching legal experience—the way of taking a position and the way of knowing—natural law and legal positivism are _perfectly compatible_ since they operate on two different levels: on the one hand, the evaluation of the justice of laws with a view toward reform and, on the other hand, the interpretation of laws with a view toward better systematization, theoretically, and, therefore, better practical application; in this case, the controversy between the proponents of one position or another is completely sterile. At most, one could add that, just as in this third situation, it is possible to discern a relationship of conflict when it is understood—as we have noted in the preceding paragraph—that the insistence on natural law is a demand for a value-based definition of law, so too, in the first situation (opposition between the two ideologies), it is possible to discern a relationship of _convergence_, where moderate natural law theory and moderate legal positivism meet. This is further confirmation of the main topic of this work, namely that the relations between natural law and legal positivism—these, so to speak, fraternal enemies—are very varied and complex. One could say jokingly that when they confront each other as ideologies, they are enemies, but not brothers; when they confront each other as theories, they are neither brothers nor enemies; when they confront each other as different approaches to legal experience, they are brothers and not enemies. - If we return now to the starting point, that is, to the definitions of natural law and legal positivism given in the first paragraph and summarized in this one—the mentioned _superiority_ of natural law, characteristic of natural law, and the mentioned _exclusivity_ of positive law, characteristic of legal positivism—on the plane of the ideological relationship, the superiority of natural law means that there are rules of conduct whose validity is the foundation of the validity of positive law rules, and, as such, they must be obeyed in preference to the latter. On the _plane of the theoretical relationship_, the superiority of natural law means that recourse to _nature_ rather than to the will of the legislator offers a more adequate explanation of the legal phenomenon and a firmer basis for constructing a general theory of law. On the _methodological plane_, the superiority of natural law means that, alongside the non-value-based scientific study of law, if room is given to calls for a critique of the law, the best way to carry it out is to use the suggestions that come from the tradition of natural law. - Similarly, the _exclusivity_ of positive law means, first, that one must obey _unconditionally_ the laws established by the legislature because there are no higher laws than them; second, that natural law is not a form of law that can be placed alongside the various forms of positive law; third, that positive law is the sole object of study of jurisprudence as science. - One of the aims—and certainly not the least—of this study, which shows the variety and complexity of the relations between natural law and legal positivism, was to recommend henceforth a certain _caution_ in attributing to this or that author the merit (or demerit) of being a natural law theorist or a legal positivist. As Cattaneo has shown in his study on legal positivism in England,6 authors who were considered to be typical representatives of the _positivist_ tradition, ## **Apéndice** ## **Otras Consideraciones Acerca del Positivismo Jurídico** The majority of jurists of the last century, at least in Europe, have been positivists without knowing it. People began to speak of a more or less defined current of "legal positivism" when its first detractors were already considering it over or finished. Later, with the revival of natural law, the need to historically limit and conceptually define the opposing current of "legal positivism" has been increasingly felt. In the dispute between attackers, and defenders, one has to know, on the one hand, *what* one wants to destroy *and*, on the other hand, *what* one wants to preserve. In recent years, legal positivism—just as natural law has done in other eras—has become an object of historical investigation and of critical reflection. Limiting ourselves, for now, to what has happened in Italy, one might begin this phase of reflection with the study of Francesco Carnelutti, _Bilancio del Positivismo Giuridico_, published in 1951.1 But the first study where the problem of "positive law" has been tackled directly, developing a historical and dogmatic analysis, aimed at obtaining a redefinition of the concept of "positive law" has been by Roberto Ago, _Diritto Positivo e Diritto Internazionale_,2