Nature right

the term nature right or over-positive right is a right-philosophical name for the right, which precedes the set or positive right regulated by social standards and is superordinate. The nature legal doctrine stands contrary to the right positivism.

In many positive-legal regulationsare standards of the nature right, which are simply shown either for larger security or are applied in detail to a concrete situation.

1 definition
2 origin
3 appointment
4 demarcation to the right positivism
5 meaning
6 history
of 7 important representatives of theNature right
of 8 important critics of the nature right
9 literature
10 see also
11 Web on the left of

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definition

this term can the conviction at the basis lie that each humans are by nature equipped with inalienable rights, independent of sex, age, place,Nationality or the time and the system of government, in which it lives. In addition the right to lives and physical soundness or the right to personal liberty belongs. The nature rights are therefore considered as pre and supra-national “eternal” rights. Also the idea ofNature right as “right of the stronger one” existed, is publicised rather rarely however under this name. The idea of the nature rights (both developments) goes back into the Greek antique one and wins in the age of the clearing-up political meaning.

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origin

thoseAppointment to over-positive right assumes nor certain right sets must to be stressed be able to be set independently of the concrete arrangement by the legal order “absolutely” validity and be created thus by a positive act of the legislation neither repealed.

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appointment

the right principles taught in the nature right different, but not sources influenceable of humans are always awarded. As examples are mentioned:

God or a certain divinity, which created the right principles with the creation,
that as göttliches lawinterpreted Logos, which the world flows through,
the law of nature working written into the human individual and (ability for the self realization and orientation of the conscience) in contrast to that purely instinktiven laws of nature of the animal realm,
certain scientific necessities, itself in natureshow,
nature as such.
the reason

defiance of the possibility of setting as source of the nature right both God and humans can be rejected it not in the sense of the modern natural science, but forms a main object moral and of the philosophy of law. After Johannes Messner does not exist (specifically human) the law of nature outstanding for the nature right as main basis “in a Moralkodex, rather into the full-human its causing and humans obligating basic values or basic principles, constantly same for all times, only intheir general content possess constantly and only to that extent absolute validity, when they correspond to the constant and even an absolute value representing basic natures of the person nature of humans.“

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in contrast to this other right-philosophical

considerations the validity answer demarcation in the negative to the right positivisma over-positive right and consider only that obligatory, which was standardized by a right-setting act as positive right.

The problems of both conceptions are obvious: By the acceptance of a over-positive right elementary moral principles become, are these ethicalally or religiously motivated, to that access of the positive legislation extracted, which strengthens these principles on the one hand, on the other hand it however only in the measure to carry out leaves, as over their existence as broad a consent as possible prevails.

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meaning

the nature right (asIdea of the inalienable rights) forms a substantial argumentation basis of certain right areas like those of the human rights or international law. The nature right is then that part of the human law of nature, which refers to the joint life, because only where community, therealso right, why Johannes Messner defines in such a way: “Nature right is existence order, constitutional structure of existing humans as humans, in the wahrsten and fullest sense of “existing”, the order, their demands it with this existing in its certain contents becomes conscious in accordance withthe principle that all realization is due to the experience, also those of the principles of the right reason as part of the practical reason. So seized, these demands of the fully unfolded reason in their general in itself certain truth become and intheir general obligating validity seen.“

An example of over-positive right places those after dominant right understanding became humans. The German Basic Law guarantees these in kind. 1 GG, but becomes their inviolability here only as principle of the rightrepresented; to follow it is rather as generally valid right set from pre-aged ethical or religious opinions, which are to apply to all human societies. A consequence of this view is the fact that not only inviolable but in particular should be also indispensable. ThatLegal entity cannot consent thus effectively to its injury. Beyond that the thought leads, is given, also by over-positive right to the fact that also outside of the area of application of the Basic Law an interference into an individual no obedience expectmay. The interference offence against the straight by no legislation act created, but from itself valid over-positive right.

The moreover one is to be proceeded from over-positive right always then, if from “customs” the speech is, so for example in kind. 2 GG, § 138 BGB, § 242 BGB or § 826 BGB.

Into the iurisdiction of the Federal High Court the nature right always flowed the way of the Radbruch' formula , which grants priority before the positive right to the nature right under certain circumstances.

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history

conceptions of a over-positive standard setting already give it since the Greek antique one. These had however still no commitment, but were considered only as a worthwhile individual goal. Both the criticism at the different treatment of humans by positive lawslike the criticism at the development of the laws at all for the advantage of the weak ones is occupied in the antique one (anti-phon Orator, Kritias). Obligatory over-positive standards emerge likewise in the Bible and other religious Codizes, however is this revealedQuite and particularly in the case of the Bible not logically coherently, but decrease/go back directly to words of God.

A first influential synthesis of the two origins tried Thomas's von Aquin. In scholastischen moral theology and in the age of the clearing-up nature legal doctrines attainedagain meaning. Particularly influential in forming out liberally determined nature right thought was here Hugo Grotius with its work “De iure belli AC pacis” as well as with its private law text book “introduction to the Dutch jurisprudence”, Samuel of Pufendorf with “De iure naturae etgentium " and particularly John curl. To curl considerably the US-American founder fathers and in particular Thomas Jefferson referred with the reason of the US-American declaration of independence.

At the problem of the nature right the overlap of jurisprudence and philosophy becomes and/or. Theology again and againclearly. Thus the nature right is not only a substantial subsection of the philosophy of law, but also the jurisprudence as such whether it specializes now in lay or church right.

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important representatives of the nature right

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important critics of the nature right

Hans Kelsen

Ernst Topitsch

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literature

Ernst Bloch, Naturrecht and human became, 1961.
C.S. Lewis: The abolishmenthumans. ISBN 3894111577 - English text
Johannes Messner: The nature right. Manual of the society ethics, state ethics and restaurant ethics, Berlin 1984. ISBN 3-428-05660-4 (publishing house Duncker & Humblot), 1372 S.
Eberhard shock-hope: Nature right and. Universal ethics in onehistorical world, Mainz 1996. ISBN 3-7867-1899-7
Merio Scattola: The nature right before the nature right. To the history ius naturae in 16. Century, Tübingen 1999. ISBN 3-484-36552-8.
Raoul Muhm: Germany: The Renaissance of the nature right and the crimes approximatelythe humanity. Germany: The Renaissance OF natural law and of crimes against humanity. Germania: La rinascita del diritto naturale e i crimini contro l´umanità. Vecchiarelli Editore Manziana (Roma) 2004. ISBN: 88-8247-153-2
Raoul Muhm: IL “MURO THE BERLINO”, I PROCESSI PARALLELI EIL DIRITTO NATURALE IN GERMANIA, L'INDICE PENALE, XXV III - N. 3 - To CEDAM, PADOVA, 1994 http://www.larchivio.org/xoom/muhmberlino.htm