DOI: https://doi.org/-DOI_NO_DISPONIBLE_-_DOI_NOT_AVAILABLE-

Naturaleza - Naturaleza humana - Derecho Natural

 -Emilio Serrano Villafañe


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Resumen

 8
The title of this paper is very significant. It deals with an attempt to show the connection between the concepts of «nature», «human nature», and «natural law». In fact, the latter concept is no more than the result of the two terms which constitute it: nature and law.
The existence of an intimate relation between nature and natural law is undeniable. In the first place, natural law takes its name from «nature»: the «natural justice» of Aristotle, the «naturalis ratio» of Cicero, the «natura rerum» of the Roman Jurisconsuls, the «naturalis inclinatio» or the «instinctu naturae» of Ulpian, the «natura ut natura» of Saint Albert the Great, the «natural tendencies» of Saint Thomas, the «quod est se et natura sua» or «quod est ex se et natura rerum» of all the authors of the Spanish School of Natural Law, or the more recent «naturalis conceptio et naturalis inclinatio» of Pizzorni. And, in another sense, although also in connection with the term «nature»: the natural law -too natural- of Grotius, Puffendorf and Thomasius, or the «natur der Sache» to be found in the doctrine of our days.
In «human nature», the properties of natural law are founded: it is one in space (or universal) and one in time (or immutable), because human nature in all men and in all times is one and immutable in its essential traits. And in «nature», natural law has its foundation: in «human nature» and in the «nature of things», from the Roman-Medieval «natura rerum» until the modern «logical-ontological objectivities». And also in human nature and its «tendencies» must we find the content of natural law.
The problem of nature is the problem of being and the meaning of reality (its essence, its substance, its being). Philosophy in its entirety is an answer to the problem of «What are things?»; that is, «What is it that constitutes the nature of things?»; the answer for the nature of things is the starting point of philosophizing. Metaphysics, Theodicy, Anthropology, Cosmology, Ethics, etc…, are yet another series of answers to the problem of being as being, God as being, the world, man. Juridical Philosophy, which is related to Moral Philosophy, and both of these with Metaphysics, is the supreme rational «knowledge» of the finalities of the juridical being, of law, of «that which is properly juridical».
Natural law is part of the Philosophy of Law, a speculative-practical philosophical knowledge about the very essence of law and of juridical institutions. Now, natural law derives from human nature, in the same sense that human nature is, in its constitutive elements, substantiality, animality, rational, being at once spiritual, free and social. From these essential constitutive elements of the human person, according to Boethius' definition, there derives -according to the text in the Summa Theologica of Saint Thomas (II-II, q. 94, a. 2), which the author of this paper comments extensively- a triple order of «natural» tendencies which are translated into principles and precepts of social human operation which constitute the objective «natural law», and which are, in an ensemble of moral faculties, the «subjective natural laws».
Thus, from the connection between «nature», «human nature», and «natural law», the following logical consequences derive: 1) Natural law is the ordaining of human life which commands or prohibits that which does not exceed the natural forces. 2) Natural law has to be congruent with human nature and with the nature of things. 3) Every being possesses some essential and permanent qualities and others which are variable (in man, in nature, and in history respectively). And in law there exist fundamental permanent principles which are applied to variable cases.
At the same time, from this connection between «nature», «human nature», and «natural law» -considering natural law in the context of norms- nature or «that which is natural» applied to law supposes: 1) A law which is neither artificial, animal, nor supernatural acquired by revelation, but rather a «rational» knowledge. 2) That we encounter it in our own nature as an engraved vis insita, «in conformity» with that nature as it really is in its constitutive elements and in its social existence.
With all logical rigor we understand that one may well call this law «natural» and know what the term «natural» as applied to law means. According to this, natural law becomes the whole of conditions, principles, and precepts which, derived from the natural tendencies of man, organize and direct social (familial, economical, political and juridical) life according to the exigencies of rational and social human nature.
And within the juridical norms, natural law occupies a preeminent place, and has a basic function. From this we deduce that if the juridical positive norms have to regulate human life, they will have to be congruent with natural law, or at least they must not contradict it, because by so doing they would destroy their own foundation and binding power, their own fundamentation and justification.

Palabras clave

Materias Investigación; Derecho


Autores

Emilio Serrano Villafañe e-mail (Inicie sesión)

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La revista Persona y Derecho se publica bajo una licencia Creative Commons Reconocimiento-NoComercial-SinObraDerivada 4.0.