Legal Theories: Naturalism, Positivism, Realism, and the State
Legal Iusnaturalism
Legal iusnaturalism is a conception of law and justice which defends the existence of natural rights of the individual that are universal and inalienable. Therefore, for iusnaturalist thinkers, the main function of the State is to protect and ensure that individuals can enjoy these natural rights. From that perspective, the positive recognition of these fundamental natural rights in the laws is interpreted as a formal recognition by the State of a series of previous ethical principles, which are inalienable and thus can be protected more easily.
Legal Positivism
Legal positivism is a conception of law and justice where there is only a legal norm, a law, when it has been established positively, that is, when it has been explicitly included in some legal code. Therefore, any belief in the existence of some valid law prior to positive law is interpreted by legal positivists as the result of an unacceptable metaphysical position. In short, for legal positivism, the promulgation or positive recognition of human rights is not a mere declaration, since they do not exist previously, but a constitution of their existence. It is not a question of ratifying the postulates of natural rights, but of “giving them life” within the framework provided by a specific legal order.
Legal Realism
Legal realism is a conception of law and justice opposed both to those in favor of legal iusnaturalism and those in favor of legal positivism. From this perspective, the positivization process does not mean the declaration of preexisting rights (iusnaturalism), nor the constitution of new rights (positivism), but is a further requirement to take into account for the effective and real enjoyment of certain moral and political demands of freedom and justice. The formal recognition of certain fundamental rights is not the end of the process, but a further condition for the subsequent development of real conditions in order to protect these rights.
The State
The State is a political organization which has the sovereign power over a territory which is exercised from various administrations and which has the monopoly of the use of force and violence.
Characteristics of the State
- a) It has territorial power. The power of the State extends to the whole territory that delimits its borders. Within these borders, nothing and no one escapes its power. Any person or organization acting in its territory is automatically subjected to its rules.
- b) It is sovereign. At the state level, there is no instance higher than the State itself. So, the State is the supreme sovereign and it has supreme authority. The other associations or institutions of that community are subordinated to it and must operate within what the State authorizes. Otherwise, they can be sanctioned or canceled.
- c) It is in charge of maintaining order. This is perhaps the main function of the State. The State has an obligation to protect its members from internal and external threats. Thus, internally, it must enforce the law to avoid conflicts and ensure stability and social peace. Externally, it must protect its citizens from foreign attacks or incursions by means of international relations and diplomacy.