Man-made law

Man-made law is law that is made by men and women. It is a concept that is usually considered in opposition to concepts like natural law or divine law. As such, it is not an easy concept to pin down, given that it has varied over the years and across cultures.

Professor Heinz Mohnhaupt of the Max Planck Institute for European History of Law relates man-made law to Hegel's concept of Rechtsgesetze or "Laws of Right", which Hegel placed in opposition to the Naturgesetz or laws of nature. In the Hegelian view, according to Mohnhaupt, man made law is Rechtsgesetze, or at least a subset thereof. Its characteristics are that it is "not absolute", and is created by human beings "above all" for the regulation of their actions and behaviour (but also for the ordering of things). It "has to be generally known" and "has to take into account [both] its anthropological determination and [...] its chronological determination". Man-made law is fluid, changing over time in order to adapt to changing real-world circumstances.

Thomas Aquinas expounded the concept of Human Law, a distinct form of law alongside Natural Law and Eternal Law, in Summa Theologica. Thomas asserted the primacy of natural law over man-made law, stating that where it "is at variance with natural law it will not be a law, but spoilt law" (ST, I–II q. 95 a. 2). The result of any such conflict is that the man-made law does "not oblige in the court of conscience" (ST, I–II q. 95 a. 4). Natural law theorists and others have thusly challenged many man-made laws over the years, on the grounds that they conflict with what the challengers assert to be natural, or divine, laws.

Thomas Aquinas himself conflated man-made law (lex humana) and positive law (lex posita or ius positiva). However, there is a subtle distinction between them. Positive law regards law from the position of its legitimacy. Positive law is law by the will of whomever made it, and thus there can equally be divine positive law as there is man-made positive law. (More literally translated, lex posita is posited rather than positive law.) In the Summa contra Gentiles Thomas himself writes of divine positive law where he says "Si autem lex sit divinitus posita, auctoritate divina dispensatio fieri potest (if the law be divinely given, dispensation can be granted by divine authority)" and "Lex autem a Deo posita est (But the Law was established by God)".Martin Luther also acknowledged the idea of divine positive law, as did Juan de Torquemada.

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