Natural rights were understood first as basic human claims or entitlements; they were of course not understood in the modern sense of constitutional fundamental or contemporary universal human rights, that refer rather to values that assure the individual a satisfactory and decent life. We can say that the notion of natural human rights is axiological in that it asserts individual entitlement to a choice of morally appropriate life, not in a narrow legal sense but in light of certain fundamental human moral values. For the natural law scholar, human rights form part of a wider moral and ethical discourse.189 Note that this axiological characterization of natural human rights does not necessarily exclude a characterization also of a more legalistic nature. The only particularity is that, for the iusnaturalist, human rights must first and foremost be understood from an axiological perspective; only in certain historically contingent circumstances do these rights acquire a legal character. The axiological nature of human rights relate them above all to the moral character of the individual and his or her ethical values190, and not to the formal process of making law.
the power of the state.193 We note that human rights theory is to a large extent a secularization of the rationalist natural law doctrines of the 17th and 18th centuries.194 Legal positivism is above all a theory of law. It is common understanding among legal scholars that the two central preoccupations of legal positivism are a separation of morality and law and a focus on the formal aspect of law. For positivism, laws are valid only in the context of a well established procedure; positivism sees only the formal aspect of the law, its procedural aspect, as a source of authority and validity. For this reason, positivism often loses sight of a norm's substantive component; that is, it loses sight of the fact that a law has validity only to the extent that the values it defends are just and true. This oversight occurs because positivism is conceived as being an entirely neutral form of law, in which value judgements are essentially neglected.195 In the late 19th century, legal positivism was the prevailing school of thought in the context of international law. It dominates legal theory still today.
If the doctrine of natural law places its focus and bases its authority on the rational and autonomous individual, the contrasting doctrine of positive law focuses on the authority of the polity, its will and the rule of law.196 This difference in the allocation of power in relation to authority is of fundamental importance when answering the question of who may legally structure a society? What are the sources of law? With particular regard to human rights, the positivist school speaks in terms of an "authoritative enactment of a system of law sustained by organized community coercion"197, such that norms are only or mainly positive enactments of the state.198 In addition, and in contrast to the iusnaturalists, the positivists elaborate their assumptions on the basis both of traditional legal concepts and empirical knowledge, while at the same time denying the existence of any a priori source of rights. For them, a serious plea to a higher law is little more than a meta-legal aspiration.199
Positive law seeks to detach questions of morality from questions of law. For the positivist, there is a clear separation between the law that "ought" to be, and the law that
193 Lauterpacht, above note 22, p. 112.
194 Eusebio Fernández García “Dignidad Humana y Ciudadanía Cosmopolita”, 2001 p. 102.
195 Frauke Lachenmann “Legal positivism” in Max Planck Encyclopedia of Public International Law R Wolfrum (ed.), 2012, p. 785.
196 Shestack, above note 164, p. 38.
197 McDougal et al, above note 173, p. 73.
198 Lillich et al., above note 12, p. 35.
199 McDougal et al, above note 173, p. 38.
is. However, for the iusnaturalist, natural law is always superior to positive law. The core thesis of positivism is that a law that ought to be, but which is not, is not a law; for this reason, it is cognitively worthless.200 This school of thought refuses to give meaningful value to metaphysical argument, since the truth proposed by the transcendentalists cannot be objectively demonstrated.201 For the positivist, moral principles are subjective in nature; only the law is truly objective. Similarly, legal rights arise from the law itself, moral rights, on the other hand, are merely principles of righteousness. 202 Two major examples from contemporary history suffice to demonstrate how a positivist legal system may become completely disassociated from the ethical and moral foundations of its society: the Nazi Regime in Germany, and the system of apartheid in South Africa. Both systems claimed validity and justification in the argument that positive law must simply be obeyed, regardless of its morality.203 The key criticism of positivism is that positive laws may sometimes contain values contrary to basic human morality. These values, values contrary to individual morality, may best be described as negative values, values of human indignity.204 A law which takes a repeated procedure or custom as its source of validity cannot easily exclude immorality from its legal system. Defenders of legal positivism are vulnerable to easy refutation because positivism does not include a notion of moral correctness or right action among its constitutive elements. However, human indignity, as the examples given above clearly demonstrate, is absolutely not compatible with the order created by the international community, after 1945, with the establishment of the United Nations through UN Charter, not to mention the whole body of treaties that give legal shape to certain universal human claims. A second criticism of positivism is that the somewhat vague, unanchored derivation of its positive legal concepts also renders them vulnerable to manipulation within a confusion of over-elaborated and over-technical rules and procedures; the real value of the legal provisions may then easily be lost in a labyrinth of abstract technicalities. In the case of human rights, basic founding principles, like human dignity205, are easily lost in a jungle of legalism.
200 Shestack, above note 164, p. 39.
201 Paul Sieghart, “The International Law of Human Rights”, 1983, p. 12.
202 Donnelly, above note 166, p. 9.
203 McDougal et al, above note 173,p. 75.
204 Ibid., p. 75.
205 Ibid., 75.
The strength of legal positivism is that it constitutes a complete system of legal norms;
criticism aside, it has greatly contributed to the realization of human rights by acknowledging them within a system of positive rules. Human rights, be they domestic, regional, or global, once reflected in a positive set of rights, do at least set out a template of acceptable behaviour. Another advantage of positive law is that, in contrast to natural law, positivism does not recognize absolutes. Positive law is a quintessentially dynamic legal universe that, thanks precisely to its flexibility, is able easily to adapt to the different expressions of human morality and dignity that occur within a given moment and at a given place. The principal achievement of positive law is in its implementation of human rights rather than in its grounding of them. Positive law is thus a truly effective legal means by which, in a context of human dignity, and in the particular case of human rights, to guarantee respect for the moral behaviour of the individual.