4.3. From the natural law to the natural right
88. The natural law (lex naturalis) expresses itself as natural right (ius naturale) when the relation of justice between men is considered: relations between physical and moral persons, between persons and public power, and relations of all men with the positive law. One passes from the anthropological category of natural law to the legal and political category of the organization of the State. Natural right is the measure inherent in the agreement between members of the society. It is the immanent rule and measure of human interpersonal and social relationships.
89. Right is not arbitrary: the requirement of justice, which derives from the natural law, is previous to the formulation and to the issuance of right. It is not right that decides what is just. Not even politics is arbitrary: the norms of justice do not arise out of a contract established between men, but their provenance is prior, from the very nature of the human being. Natural right is the anchorage of human law to the natural law. It is the horizon the function of which is to regulate the human legislator when he issues rules as part of his mission in service of the common good. In such a sense, he honors the natural law inherent in the humanity of man. To the contrary, when natural right is negated, only the will of the legislator makes law. In such circumstance, the legislator is no longer the interpreter of what is just and good, but he attributes to himself the prerogative of being the ultimate criterion of what is just.
90. Natural right is not ever a measure fixed once and for all. It is the result of an evaluation of the changeable situations in which men live. It formulates a judgment of practical reason which considers what is just. Natural right, the legal expression of the natural law in the political order, appears as it were the measure of just relations between the members of the community.
No comments:
Post a Comment