Modern Political Philosophy: Natural Law and Legal Positivism

Modern Political Philosophy: Hobbes, Locke, Rousseau, Weber, and Kelsen

Jusnaturalism: A Western Tradition

Jusnaturalism is a tradition of Western culture originating from the Greek world. It is generally considered in the following forms:

• a) Natural rules take precedence over positive law.
• b) Natural rules act as ethical limits that should govern state power and the conduct of individuals and entities.

Historical Perspectives on Natural Law

• Sophocles: Opposes the laws of Creon.
• Cicero: Defines law as established by reason, immutable, and eternal.
• Hugo de Groot (Grotius): Asserts that natural right is independent of the will of God.

The Social Pact and Modernity

In modernity, natural law becomes an innate subjective power of the human being. Through the social pact, humans leave the 'state of nature' and organize themselves politically.

Modern Jusnaturalist Thinkers: Grotius, Locke, Pufendorf, Rousseau, and Kant.

Legal Norms and Moral Standards

Legal language is a tool humans use to regulate their own conduct and that of others. Laws possess a coercive character.

Classification of Legal Norms:

• a) Obligations: Prescribe that certain actions must be performed.
• b) Prohibitions: Prescribe that certain actions must be avoided.
• c) Permissions: Prescribe how and under what conditions actions may be performed.

Legal norms are heteronomous, whereas moral standards are autonomous. Moral standards affect a person's conscience and conviction, regardless of legal requirements.

Legal Positivism and Hans Kelsen

Legal positivism asserts that there is no right other than positive law. This is brilliantly expressed in the Pure Theory of Law by Hans Kelsen, which states that a rule of law originates from an authority vested with the power to dictate it.

Principles of a Democratic Society

• a) Free and equal citizens.
• b) Participation in political life.
• c) Citizens have the right to propose.
• d) Democracy is a way of living and coexisting.
• e) Setting priorities through majority rule.

A democracy requires an understanding of the difference between responsibility and diversity in justice.