What are examples of natural rights

Natural law

Philosophers and theologians have consistently taken the view that there must be legal norms that apply to all people at all times, for example the right to life and physical integrity, perhaps also the right to free development of one's personality, to property and compliance once concluded contracts. However, the last three points are already controversial, which makes it clear that it is extremely difficult to find the individual norms of natural law, if they exist at all. However, the Catholic Church holds on to a doctrine of natural law to this day. Modern attempts to find natural law began in the Enlightenment at the end of the 18th century and found their expression in human or fundamental rights. In contrast to the theory of natural law, there is so-called legal positivism, which is based solely on the applicable law (in the objective sense). But it is also dangerous because it means that the courts can also become the tools of an injustice state, for example during the National Socialist rule in Germany.

natural order of the fundamental rights and duties in human coexistence. The N. needs i. In contrast to positive law (statutory law, customary law), there is no written record, notice or general practice. It applies at all times and wherever people live, and its core content applies regardless of state recognition. The foundations of the doctrine of N. can be found in particular in ancient philosophy (Plato, Aristotle) ​​and in Christian religious philosophy (e.g. in Augustine and Thomas Aquinas). The believer in God sees the effectiveness and binding nature of the N. as being based on the order of creation, the non-believer anchors it in nature and in the essence of man as he understands and recognizes it. As rationalism and the Enlightenment attempted, the content of the N. cannot be presented in detail as a "law of reason" in an all-embracing system; in its concrete ramifications it will even be subject to a certain change according to sociological, historical circumstances and according to the development of humans and their self-image. A core area can, however, be recorded as convertible, e.g. that no innocent person may be killed without sufficient reason (self-defense) and that freedom and human dignity are the highest legal value. Hugo Grotius. - GG, legislators and jurisprudence recognize the binding nature of the N. in the FRG.

a counter-term to the law of law already used by Aristotle. It can be defined as the totality of those norms which precede positive law and which claim general validity regardless of state sanctions. Thinking based on natural law applies - in strict opposition to power-related legal positivism - the nature of things as the source of timeless, rational, legal principles directly oriented towards the idea of ​​justice.
Meanwhile, the judge who is called to constitutionally examine acts of sovereign power of the state can hardly appeal to natural law because a large number of different doctrines of natural law come to light as soon as one leaves the relatively small area of ​​fundamental legal principles. For the German judge, the sole - and substantially sufficient - test standard is the Basic Law with its normative value system, which primarily professes human dignity, freedom and equality.

N. is understood to be an ideal law that is valid for all times and peoples, and which does not owe its creation to state legislation, but is given "by nature". The idea of ​​N. is of Greek origin (Plato, Aristotle). In particular, Thomas Aquinas trained and Christianly underpinned the ancient N., primarily with reference to Aristotle. According to Thomistic scholasticism, God laid values ​​in the order of creation that are recognizable to man by virtue of his nature. By following them, man fulfills his natural purpose. In modern times, the profane right of reason adheres to the universalistic and timeless validity claim of N., but detaches it from its foundation in the divine creative will and thus emancipates it from moral theology. In this form, the N. found its way into the great codifications of the 17th and 18th centuries (e.g. Prussian General Land Law of 1794). By the High Middle Ages at the latest, however, opposing currents emerged, which endanger the N.'s claim to validity. Nominalism in the school of Duns Scotus and Wilhelm Occam refuses to bind God to a certain system of values. According to this view, the good and just cannot be derived from general essential concepts, but only from devotion to the divine will. In this way the individual takes precedence over the general; the personal legal conscience takes the place of the objective order of being and values. Luther also ties in with this nominalistic voluntarism, who bases the justification of fallen people and people in need of redemption solely in the grace of God who is hidden from reason and can only be experienced in faith. (From this it becomes understandable that Protestant, in contrast to Catholic theology, mostly approaches natural law with great reservations.) Thomas Hobbes then draws the conclusion in his theory of the state from the rational inevitability of ethical norms that to overcome the otherwise inevitable war against all all - which he saw vividly before his eyes in the religious and civil wars of his time - the state authority must set the really effective legal and peace order. Hobbes is therefore ultimately considered to be the founder of legal positivism. For the followers of N. there are at least certain essential legal values ​​- e.g. B. respect for human dignity, justice, equality - but also comparatively concrete instructions for action - such as the prohibition of murder, bodily harm, deprivation of liberty, theft - pre-state, d. H. regardless of state law, valid. The N. always remains exposed to the objection that it is not possible to define timeless, generally applicable content as legally binding norms in view of the concrete historical situation. This does not change anything in the statement that the N. was always able to develop its mobilizing and revolutionizing power when the positive law no longer corresponded to the legal feeling of the age. Particularly in view of the extreme effects of legal positivism, as it was particularly evident in the unjust National Socialist state, it has gained a new topicality. By declaring human dignity inviolable (Art. 11) and declaring the commitment to inviolable and inalienable human rights (Art. 1 II), the Basic Law has recognized a value system prescribed by the constitution, which is based on the natural law tradition.
Natural reserve. The N. (including landscape conservation) is regulated in the Federal Nature Conservation Act and in the nature conservation laws of the federal states that supplement this framework act. It aims to protect and maintain nature and landscape as the basis of human life and as a prerequisite for recreation. Instruments of the N. include landscape planning, the establishment of nature and landscape protection areas, species protection for wild animals and plants. According to the Federal Nature Conservation Act, the states are obliged to set up species and biotope protection programs. Measures that can destroy or sustainably impair certain biotopes listed by law (e.g. moors, alluvial forests) are not permitted. Possession and commercial exploitation of specially protected animal and plant species (this also includes the species listed in Annexes I and II of the Washington Convention on Endangered Species) are only permitted in exceptional cases; their import and export requires approval. In the event of unauthorized import or export or lack of ownership, animals and plants of the specially protected species will be confiscated or confiscated. Serious violations of the prohibitions of species protection law are threatened with punishment.

is in the legal philosophy the totality of the inherent, timelessly valid legal propositions given to humans, which stand above the legal propositions set by humans (positive law). The N., the derivation and validity of which are controversial, serves as a limit or corrective to the established law. Representatives of the idea of ​​a natural law are Greek philosophers, Christian churches and modern philosophers (law of reason). General human rights or basic rights are most likely to be based on N. In particular, it is very difficult to prove a legal sentence as N. Lit .: Köbler, G., Target Dictionary of European Legal History, 3rd A. 2005; Schröder, P., Natural Law and Absolute State Law, 2001; Rohls, M., Kantian natural law and historical civil law, 2004

Right up to the present day, the development of legal philosophy has been determined by the (supposed) opposition between legal positivism (equating law and law) and natural law; this contrast can be traced back to the beginnings of ancient philosophy. The legal idea and the concrete legal system followed a religious or pseudo-religious justification idea, i. H. the believed basic relationship of man to God or the historical-philosophical principle put in its place. Natural law is a question of faith - in Christian as well as in general religious, humanistic and worldly understanding and reason; therefore the position on natural law always means a belief-based or ideological decision. The "delivery" of law to particular interests is the particular problem of legal positivism; the ideologization of law is the problem of the doctrine of natural law. The idea of ​​natural law has an eminently political function. Those who can appeal to nature have the legitimacy of law for themselves. The early modern tradition of natural law legitimized a completely secular and ultimately inhuman form of political authority through its paradoxical appeal to nature. Not only thinkers of the highest moral seriousness have taken refuge in natural law, but also the most unscrupulous contempt for law has taken refuge. Attempts have always been made to secure political power through natural law. There is therefore no such thing as a “natural law”, but there is, starting with Greek philosophy up to the present day, a number of historically changing natural rights that arose under the influence of different cultures, churches, world views and political situations. Even National Socialism claimed its “natural law”, which was based on the natural conditions of the blood and the soil. In a democratically organized society, in which the law primarily has functional importance, the importance of natural law recedes.
Natural law experienced an unexpected renaissance after World War II as a reaction to the horrors of the Third Reich. Radbruch held the position of Catholic in 1909
If natural law was judged to be completely out of date, it was hoped that natural law would provide an effective barrier against injustice and intolerance. person
As a (warning) example of natural law thinking, the report of the 1st Civil Senate of November 6, 1953 (BGHZ 11, Appendix 34, 65) states: “As far as human and personal dignity is concerned, men and women are completely equal, and this must be strictly expressed in all law. However, they are strictly different not only in terms of what is actually biological and sexual, but also in their being-like, creation-like relationship to one another and to the child in the order of the family, which is established by God and therefore impenetrable for the human legislator. According to the order of creation, the family is a unit strictly following its own order; Man and woman are one flesh. To want to approach this original fact (outside the marital economic area) with legal forms of a social nature is absurd. Within the strict unity of the family, the position and tasks of men and women are quite different. The man fathered the children; the woman receives, gives birth and nourishes them and raises the minors. The man, especially when turned outward, secures the existence, development and future of the family; he represents them externally; in this sense he is her 'head'. The woman dedicates herself to the internal order and the internal structure of the family, predominantly inwardly. The law cannot doctrinally bypass these fundamental differences when it asks about the equality of the sexes in the order of the family. "
Natural law has always been - and still is - of great importance in the area of ​​the Catholic Church. In keeping with the system, Catholicism has always adhered to the idea of ​​natural law (Victor Katrein, 1845-1931; Josef Mausbach, 1861-1931; Johannes Messner, 1891-1984; Heinrich Rommen, 1897-1967) and understood law as part and excerpt of the moral law of nature , so equated law and ethics. However, only the most general principles should apply as natural law, everything else should be left to the will of the members of the society. The Protestant legal doctrine - according to its basic understanding - has no natural law tradition.
The search for a universally valid standard derived from nature (human nature, nature as the divine order of creation) is inevitably doomed to failure. The ideas about human existence are too different to be made the basis of a legal system. No specific legal system can claim that its norms correspond to full, absolute justice. This is all the more true now that human coexistence is no longer instinct-oriented, no longer shaped by myths and no longer determined by the power of the revealed religions, but is more strongly regulated by democratic agreement and the knowledge of science.
“There is almost nothing right or wrong that does not change its nature with the change of the sky. Three degrees of pole height overturn the whole jurisprudence. A meridian decides the truth. Basic laws change after a few years of ownership. The law has its epochs.
A fun judiciary that borders a river or a mountain. Truth on this side of the Pyrenees, error beyond ”(Pascal).
The current use of the natural law discussion consists in keeping open the critical function of natural law and the dualistic legal doctrine with the parameters law, law and justice. What remains from the world of thought of natural law is not a system of eternal material legal principles, but the mandate to positive law, which has to be fulfilled under ever new conditions, to ensure that the struggle for the correct shaping of social relations remains an intellectual dispute. Even if the codification of a natural law has not succeeded, the idea of ​​inalienable human rights (natural rights) has prevailed. The only thing that remains is the legal idea, namely the attempt to realize what is socially right and just under the prerequisites and conditions of the time.

i. According to the philosophy of law, the law is derived from human nature and which is accordingly recognizable from the pure reason that is common to all human beings. The N. is therefore valid for all times, independent of space and time; According to a modified view, however, a legislative act based on the (respective) popular belief is required to be effective and is therefore changeable. The opposite is the positive, i.e. H. the established or customary law, the overemphasis of which is referred to as legal positivism. Followers of the ancient N. were z. B. Plato and Aristotle, followers of the Christian N. Thomas von Aquino, while Grotius and especially Pufendorf detached the N. from the theological basis and made it independent again. At the beginning of the 19th century, the N. was largely displaced by the historical school of law (Savigny), which regards the law as the source of every legal system. During and after the Second World War, under the impression of disregard for personality by totalitarian regimes and the incidents of war, natural law thought came to the fore again through the recognition of generally valid, inalienable basic and human rights. They are derived from the moral content of the idea of ​​law itself, from which certain basic rules for the coexistence of communities and people in the communities result, in particular the fundamental rights and freedoms (Convention for the Protection of Human Rights).




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