Determinant presuppositions of the law: humanity and positivation

Abstract

Abstract: Positive Law does not constitute an isolated normative system disconnected from social reality; rather, it is grounded in fundamental assumptions that refer to human existence, nature, and interpersonal interactions. Law is thus conceived as an institutionalized response to the demands for safeguarding the subjective rights inherent to each society. Consequently, the current legal framework represents nothing more than the formalization of a consensus regarding what, from the standpoint of human intellectual nature, ought to be legally protected. This research has been conducted through a descriptive and analytical methodological approach. In the descriptive phase, an inquiry was made into how legal systems reflect inescapable presuppositions that precede the formulation of legal norms. In the analytical phase, the study explored how values are transformed into subjective rights, whose protection becomes the primary objective of the legal system. A comprehensive understanding of Positive Law is unattainable without considering the axiological and anthropological foundations that sustain it, as it constitutes a normative manifestation of society’s juridical aspirations. It can be asserted that Positive Law invariably owes its existence to Natural Law; in other words, all legal positivism is ultimately rooted in a form of natural law. Each society chooses to legislate and protect those rights it deems essential for the orderly and stable development of human nature within a social context. Positive Law cannot be dissociated from the rights inherent to human nature, for it is precisely to them that it owes its very existence.