Theoretical Perspectives: How Natural Law and Legal

Positivism Theorists Perceive Human Rights?

Mohammad Habibur Rahman*

ABSTRACT

Human rights are inherent rights to the human beings. However, some of the rights
can be restricted for the very purposes of maintaining public morality, public
health, and public order. The line of difference between “natural law theory” and
“legal positivism” is the disagreement of the legal positivists with the explanation
of law by the natural lawyers on the basis of some principles of morality derived
from either religion or rationale. This disagreement leads to the differences
between the notions of the extent and nature of “human rights” in these two
schools of thought. This article intends to critically evaluate whether the human
rights are inherent to every individual by being a human being or it is conferred by
anyone else.
INTRODUCTION

As regards to the nature of human rights, philosophers and jurists developed a

number of theories including “natural law theory” and “legal positivism”. Natural
law theory 1 is considered as the centuries-old most influential theory in the
development of the concept of absolute justice as well as thinking about morality,
theology, and politics.2 On the other hand, “legal positivists” 3 believe that the

*The writer Mohammad Habibur Rahman completed his first LL.B. (Hons.) from BRAC
University & then pursued his second LL.B. (Hons.) from University of London (UK).
Afterwards, he received Cardiff Law School Scholarship to do his LL.M. in Human Rights
Law & accordingly finished his LL.M. with highest distinction. Later on, he completed his
PGDL BPTC from Cardiff University and then called as a Barrister of the England & Wales
in 2017. At present, he is working as a Senior Associate at a reputed law firm namely ‘The
Legal Care’.

1
The main proponents of the “Natural Law Theory” are: Plato, Aristotle, Cicero, Aquinas,
Finnis, Fuller, Hobbes, and Locke; Jack Donnelly, ‘Human Rights as Natural Rights’ [1982]
4(3) Human Rights Quarterly 391, 395.
2
Brian Bix, ‘On the Dividing Line between Natural Law Theory and Legal Positivism’ [2000]
75(5) Notre Dame Law Review 1, 1.

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legal norm(s) created by the State authority is law irrespective of its immoral
features and consequences. 4 Here, the line of difference between “natural law
theory” and “legal positivism” is the disagreement of the legal positivists with the
explanation of law by the natural lawyers on the basis of some principles of
morality derived from either religion or rationale. 5 This disagreement leads to the
differences between the notions of the extent and nature of “human rights” in
these two schools of thought. 6 The main purpose of this essay is to critically
evaluate whether the human rights are inherent to every individual by being a
human being or it is conferred by anyone else. This essay will also shed a light on
that whether the human rights are subject to a sovereign or any other power.

HUMAN RIGHTS AND NATURAL LAW THEORY

7
The concept of “human rights” has been a universally accepted8 idea, this also
regarded as an essential issue of this present world in the discourse of both rights
and morality.9 In addition to that, in this contemporary period of struggling for
human dignity, the concept of human rights is considered as a “modern tool of
revolution”.10 In other words, with the development of law, politics and morality,
the notion of “human rights” has been acknowledged as a universal secular
ideology. However, it can be said that the idea of human rights indeed owes its
emergence from the “natural law theories”.

To begin with, during the “age of enlightenment” in the 17 th Century, the

proponent of “natural law theory” particularly John Locke advanced the “natural
3
Main proponents of “Legal Positivism” are Bentham, Austin, Kelsen, Hart; Note, ‘Legal
Positivism’ [1956-57] 32 Notre Dame Law 31, 32.
4
Ibid, 31.
5
JM Finnis, ‘On “Positivism” and “Legal Rational Authority”’ [1985] 5 Oxford Journal of
Legal Studies 74, 90.
6
JM Finnis, ‘Law as Fact and as Reason for Action: A Response to Robert Alexy on Law's
‘Ideal Dimension’’ [2014] 59 American Journal of Jurisprudence 85, 109.
7
Theodor Meron, Human Rights in International Law: Legal and Policy Issues (Oxford
University Press, 1987) 155; David Weissbrodt, Frank C. Newman & Joan Fitzpatrick,
International Human Rights, Law Policy and Process (Carolina Academic Press, 2009) 370.
8
Louis Henkin, The Age of Rights (Columbia University Press, 4th ed., 1990) 216.
9
Martin Shupack, ‘The Churches and Human Rights: Catholic and Protestant Human Rights
Views as Reflected in Church Statements’ [1993] 6 Harvard Human Rights Journal 127.
10
Irwin Cotler, ‘Human Rights as the Modern Tool of the Revolution’, in Kathleen E.
Mahoney & Paul Mahoney (eds.), Human Rights in the Twenty First Century [1993] 89.

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rights theory”.11 According to him, human beings have freedom, they are able to
take decisions, and therefore, they are not subjected to the will of any authority
e.g. the government or parliament. 12 Instead, holding the natural rights of life,
liberty, and property, they make social contracts among themselves in order to
avoid troubles of the state of nature and protect the natural rights of human
beings; they form a body of politics.13 From this perspective, it is clear that human
beings are entitled to the rights e.g. the right to life, the right to liberty etc., and
those are not conferred by the government rather the body of government is
formed by the human beings to protect their inherent rights. 14

The famous scholar, Hugo Grotius, known as father of modern international law,
very lucidly defined the “natural law theory” as “dictate of right reason”. 15
According to him, as of natural characteristics of human beings, whatever they did
for enjoying their rights was right and just whereas the opposing tools were all
wrong and unjust.16 Corresponding to the other proponents of the natural law
theory, Grotius observed that the laws of a nation reflect the will of the people,
which derived from the principles of the law of the nature.17 Thomas Aquinas, a
Medieval Christian philosopher, emphasised on the natural law theory which puts
certain absolute rights together on the men and women as part of the law of
God.18 These views also justify that even though the authorities of a country
ensures the protection of human rights by the implication of law, they should focus
on the wish of the human beings.

To put it in a real example, with the development of common law legal system
governing England and Wales, which is comprised of both criminal and civil law,

11
John Locke, The Second Treatise of Government (Awnsham Churchill, 1952) 455; JM
Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 2nd ed., 1980) 311.
12
Ibid.
13
David Brink, ‘Legal Positivism and Natural Law Reconsidered’ [1985] 68 The Monist 364,
387.
14
Jean-Jacques Rousseau, On the Social Contract (St. Martin’s Press, 1978) 1762.
15
Hugo Grotius, On the Law of War and Peace (Paris, 3rd ed., 1689)1171.
16
Heinrich Albert Rommen, The Natural Law: A Study in Legal and Social History and
Philosophy (Liberty Fund, 1998) 263.
17
Mark C. Murphy, Natural Law in Jurisprudence & Politics (Cambridge University Press,
2006) 761.
18
Ibid.

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the enactment of the Human Rights Act 1998 (HRA) can be referred to. 19 The
Parliament can pass a law but the HRA requires primary and secondary legislation
to be given effect in a way which is compatible with the European Convention on
Human Rights 1950 (ECHR) as far as possible. 20 In the recent case of Bellinger v.
Bellinger21, the Court states that, as a reflection of people’s perception, the Court
can at least issue a “declaration of incompatibility” under the purview of Section 4
of the HRA stipulating that the concerned law breaches the provisions of the ECHR.
In relation to the said theory, it raised a question as to whether this theory has any
flexibility to adopt new reforms for ensuring enjoyment of rights of the people
satisfying the needs of time and situation. 22 This is a legitimate issue that may
arise in the situation where some of the rights of human beings undoubtedly
depend on the resources available in a particular country. Here, the critics point
out the concern that under the natural law, the nature of inherent rights also
differs from the proponents to proponents. 23

John Finnis, modern proponent of natural law theory, has developed his own
theory of human rights focusing on the concept of “common good” and justice. 24
According to him, modern human rights are qualified rights and limited to the
aspect of common good.25 Categorically, he opined that common good
fundamentally includes the expressions of “public morality”, “public health”, and
“public order”.26 Nevertheless, corresponding to the principle that people are
entitled with the human rights by virtue of human beings, Finnis made an

19
The Human Rights Act 1998 received Royal assent on 9 November 1998 whereas it fully
came into force on the 2 October 2000.
20
Section 3(1) of the Human Rights Act 1998 reads as follows: “(1) so far as it is possible
to do so, primary legislation and subordinate legislation must be read and given effect in a
way which is compatible with the Convention rights.” See also Section 19 of the Act
“which requires the Minister to introduce a Bill to the Parliament to make a statement
that the Bill is compatible with the ECHR. However, the Government wishes the House of
Parliament to proceed with the Bill. Thus, the Parliament will not legislate incompatibly
with the ECHR, without being absolutely clear that it is doing so.”
21
[2003] UKHL 21; See also R (Ullah) v Special Adjudicator [2004] UKHL 26.
22
Mark C. Murphy, ‘Two Unhappy Dilemmas for Natural Law Jurisprudence’ [2015]
60(1) American Journal of Jurisprudence 1, 21.
23
Ibid, 19.
24
Finnis (n 11), 218.
25
Ibid,
26
Ibid, 218-19.

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exception of the previous categorized grounds of limiting human rights e.g. people
should not be deprived of life; they should not be condemned upon false charges;
they should not be denied the procreative capacity etc.27 Therefore, under the
ambit of the natural law theory, the human beings are entitled to these sorts of
rights automatically which does not even depend on an authority to ensure.

HUMAN RIGHTS AND LEGAL POSITIVISM

Legal positivism started attacking the natural law theory during the 18 th–19th
centuries by throwing contrary views of laws and related concepts. 28 Starting from
the classical positivist philosophers who view that all the rights and authorities
derive from the concerned State and its officials through the legislative and
judicial processes.29 In this aspect, the current debate of repealing the HRA and
enacting a British Bill of Rights can be addressed. Like the positivist views,
National Human Rights Institution (NHRI) claimed that since the human rights are
conferred by the Government of a country, and protecting and promoting such
rights are the responsibilities of the Government. 30 However, the proponents of
natural law theory claim otherwise.31

The proponents of legal positivism theory opine that the human rights are found
only and only in the laws enacted by the authorities of a country under the laws. 32
Moreover, they absolutely deny the moral philosophic basis of human rights. 33 The
legal positivists emphasized on compliance with the laws, irrespective of their
immoral features and adverse impacts on the people’s rights. Nevertheless, we
have experienced the Nuremberg Trials which ensured punishment for committing

27
Ibid, 225
28
John Gardner, ‘Legal Positivism: 5 1/2 Myths’ [2001] 46 American Journal of
Jurisprudence 199, 206.
29
Ibid, 207; James Nickel, Making Sense of Human Rights : Philosophical Reflections on
the Universal
Declaration of Human Rights (University of California Press, 1987) 84.
30
Colm O’Cinneide, ‘Human rights and the UK constitution’ [2012] The British Academy 1,
37.
31
Ibid.
32
Joseph Raz, The Concept of a Legal System: An Introduction to the Theory of Legal
System (Oxford: Clarendon Press, 2nd ed., 1970) 118.
33
Herbert Lionel Hart, ‘Positivism and the Separation of Law and Morals’ [1955] 71
Harvard Law Review 593; John Austin, The Province of Jurisprudence Determined (Wilfrid
E. Rumble, 1985) 790.

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the “crimes against humanity” significantly realizing the violation of the rights of
the human beings. In this regard, as per Hart’s view, it can be said that without
law such persecution for violation of human rights could not even be possible. 34
This is certainly the scope of conflict between both the natural law theory and the
legal positivism theory.

The critics of the legal positivists express their wonder as to how an iniquitous law,
which is not accepted by the people because of its lacking of reliability, become a
law of being implemented. 35 They argue that a law should reflect the implication
of morality that is surprisingly ignored by the legal positivism. 36 However, the legal
positivism has its significance when the human rights protection measures are
specifically implemented for ensuring the protection of human rights in particular
circumstances.37

CONCLUSION

To sum up, it is commonly believed that the main difference of the concept of
human rights between the natural law theory and legal positivism was about the
source of the notion of human rights. The legal positivism theory believes that the
human rights are fundamentally conferred by the Government whereas the natural
law theory argues that the people are entitled with the human rights as of their
nature of human being. The essences of these theories concerning the concept of
human rights differ when the question of protection of human rights arises. For
example, the right to life (Art. 2 ECHR) is theoretically demanded as an absolute
right under the purview of the natural law theory while the legal positivism theory
intends to impose a limitation to a very limited extent. 38 In recent jurisprudence,
Finnis argued that, human rights are inherent rights to the human beings.
However, some of the rights can be restricted for the very purposes of maintaining

34
Nicola-Ann Hardwick, Theoretically Justifying Human Rights: A Critical Analysis (5
August 2012) http://www.e-ir.info/2012/08/05/theoretically-justifying-human-rights-a-
critical-analysis/ accessed on 25 March 2017.
35
Murphy (n 17), 16.
36
Ibid, 17.
37
Ibid.
38
Andrew Fagon, ‘Human Rights’ [2006] The Internet Encyclopedia of Philosophy, available
at <http://www.iep.utm.edu/hum-rts/> accessed on 15 January 2017.

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public morality, public health, and public order. This approach somehow mixes the
theories of both the schools of thought giving the natural law theory more
weightiness than the legal positivism theory.

In any case, Finnis recovered the essence of the natural law theory and tried to
remove any kind of confusion regarding the concept of human rights under these
two schools of thought by challenging the objectivity in the positivism theory. 39 He
also revealed the insufficiencies of the aspects of laws from the point of view of
the legal positivism theory.40

39
Ibid, 296.
40
Ibid.