Before you start reading...

Hello and welcome to my new post discussing rights and law. This is an extention of this post, so you can check out that post too if you want a more simplified version. Keep in mind that I've translated this on Google Translate and that it may have some grammatical errors or it would sound unnatural; since all my original research texts are in Serbian. And if you find anything that isn't true or something missing in this blog post, please let me know in the comments, I would appreciate it very much! And now, without further ado, enjoy reading.

Definition of rights and law

The concept of law (or rights) in philosophy refers to the system of norms and rules that regulate relations between people in society. These rules are based on moral, ethical and social norms and aim to ensure justice, order and peace in the community. Philosophy of law investigates the nature of law, deals with their source, purpose and relationship to morality, investigates justice, legitimacy and authority of law. Law in philosophy is a complex concept that can be interpreted in different ways, that's why there are different theories about what law is and how it should function.

The reason and importance of the existence of rights

In the modern age, people are fighting for freedom of speech, equality before the law and tolerance. Voltaire, a French philosopher, writer and historian from the Age of Enlightenment, emphasized the importance of the right to expression, even when we disagree with other people's opinions. "I will never agree with what you say, but I will always fight that you have the right to say it," Walter said in defense of free speech.

Human rights are needed to protect and preserve the humanity of each individual, to ensure that each individual can live a dignified life and a life worthy of being human. Question: Why should anyone "respect" them? Basically, because every human being is a moral being.

Natural rights

A theory that asserts that law has its basis in universal, objective moral principles that are independent of human rights. This theory starts from the idea that there are moral laws that are natural and understandable to the human mind, and human laws should reflect them.

The origin of natural rights is the natural state of human. A hypothetical state before the beginning of civilization, where people have no power over each other. There are different understandings about how people behaved in this state. Thomas Hobbes, an English philosopher and representative of classic English empiricism, believed that man in his natural state is egoistic, cruel and prone to conflict ("a war of all against all"). Everyone has the right to everything, which leads to violence and mistrust. Jean-Jacques Rousseau, a Swiss-French philosopher, took a more optimistic view, portraying man as a "romantic savage" living in harmony with nature. However, the emergence of private property creates inequality. Because natural law for John Locke, the English philosopher and physician, was based on God's authority, he believed that the state of nature was a state of freedom, but not arbitrariness. The freedom of an individual is limited by the freedom of others, which is similar to the golden rule.

In the state of nature, people have certain natural rights (eg the right to life, liberty, property), but have no mechanisms to protect them. Thus, natural rights derive from the state of nature and is related to morality.

Morality originally originates from within man, regardless of written or unwritten norms, and natural rights originate from the natural state of man. Therefore, the state of nature sets universal moral standards (eg the right to life, liberty, equality), enables the evaluation of laws and social norms through the prism of justice, and provides moral justification for resistance to unjust laws or authorities.

Natural law as a solution to the state of nature

Hobbes and Locke agree that natural law follows from the golden rule, but they differ on how it emerges. Locke believes that natural law exists in the natural state, while Hobbes believes that it appears only after overcoming the natural state with reason.

Natural law is a set of principles derived from nature (Hobbes) or divine law (Locke). It is the ultimate solution that arises from natural rights, allowing people to establish rules and society.

Natural rights, natural state and natural law are connected through the idea that people have certain rights by nature, but that these rights can only be protected and limited through natural law and the social contract. Without natural law, the natural state would be chaotic, and natural rights unrealizable.

Legal positivism

The word "positivism" comes from the positivist theory created by Auguste Comte, who believed that social phenomena can be studied using the methods of the natural sciences. Positivism is based solely on facts and tries to explain its subject as it is, without hypotheses and assumptions as to what it could be.

That is why legal positivism rejects the idea that law must be related to morality. According to this approach, law is simply a set of rules made by institutions that are valid because they have been formally adopted.

John Austin, an English legal philosopher, believed that law is "the command of the sovereign followed by sanctions." This means that law is an expression of the will of the sovereign power, and punishment follows those who do not comply with the orders.

H.L.A. Hart, a British legal philosopher, distinguished between primary (binding) and secondary (procedural) legal norms. Primary norms prescribe certain behavior and directly regulate the behavior of individuals and society. They are the basic rules that determine what is allowed and what is forbidden. While secondary norms determine how primary norms are applied and changed.

The pure theory of law, developed by Hans Kelsen, an Austrian legal philosopher, is a variant of legal positivism. According to Kelsen, the law should be "clean" of all improper influences. It should be based exclusively on positive legal norms and not on moral or political values.

Moral principles are not clearly defined and can vary according to culture, religion or personal beliefs, making them an uncertain basis for a legal system. Legal positivism believes that it is important for citizens to know what is legally binding, and this can only be achieved if the law is based on clear and recognizable sources. If law were based on moral principles, it would lead to uncertainty and subjectivity, because people have different moral attitudes. Positivists believe that natural law theories can be dangerous because they can justify disobedience to existing law in the name of higher moral principles, which can lead to the destabilization of society. Legal positivists focus on the analysis of actual law (lek lata) and not on what law should be (lek ferenda), which brings us back to the essence of positivism itself.

Although legal positivism rejects morality as the foundation of law, this does not mean that positivists completely ignore morality. Many legal positivists recognize that morality can play a role in making legal decisions or in criticizing existing law, but they believe that morality is not necessary to determine the validity of legal norms.
For example, Hart believed that law and morality could be related, but that it was important to distinguish between what is right and what ought to be.

Legal realism

Legal realism is a legal movement that emphasizes the role of judges in creating law. Oliver Wendell Holmes Jr., an American judge and legal philosopher, said that "law is what judges decide in the courtroom." This means that law is not only a set of rules, but also their interpretation and application by judges.

Holmes' saying is true to a certain extent. Judges play an important role in interpreting and applying the law, and their decisions often have a major impact on people's lives. However, this does not mean that judges can decide arbitrarily. They are bound by legal norms and must base their decisions on the law and evidence.

Legal realism also emphasizes the importance of empirical research into how law actually works. Karl Llewellyn, an American legal scholar, pointed out that legal systems are not static, but develop through practice and social change.

Conclusion

The three main approaches to law, natural law, legal positivism and legal realism, interpenetrate and complement each other, emphasizing that law is a dynamic, multi-layered phenomenon that remains the subject of critical study without definitive definitions.

These theories are not mutually exclusive, because they conflict and intertwine, emphasizing that law always balances between idealism (natural law), formalism (positivism) and reality (realism). For example, although positivism rejects morality, Hart acknowledges that morality affects laws, while realism accepts that judges, although free to interpret, must respect the framework of legal norms.

Law is still an open question because its nature changes as society evolves. Issues such as the relationship between law and modern technological challenges, globalization or climate crises show that legal systems must be adapted and thus constantly redefined.