The principle of the rule of law and contemporary trends towards consensus between natural law and legal positivism

Abstract

The article emphasizes that certainty, clarity, and comprehensibility of legal norms are fundamental characteristics of law in general and of the rule of law in particular. Ambiguous legal provisions give rise to divergent, and sometimes contradictory, interpretations, making compliance difficult even for law-abiding citizens and effectively undermining the rule of law. It is noted that the doctrine of natural law is based on the recognition of inalienable human rights that belong to every individual by virtue of their nature rather than being granted by the state. At the same time, the ambiguity of such concepts as justice, morality, and reason has long been regarded as the most vulnerable aspect of this doctrine. The study establishes that contemporary approaches to defining the rule of law are primarily shaped by two legal traditions: natural law and legal positivism. While both doctrines possess significant strengths, they also have inherent limitations. Therefore, the article focuses only on those aspects that are directly relevant to the concept of the rule of law. The paper demonstrates that classical legal positivism prioritizes the will of the state and identifies law with enacted legislation. Within this framework, even the regimes of Mussolini’s Italy and Nazi Germany could formally be considered states governed by law, since their repressive policies were implemented through duly enacted legislation. Although legal positivism has made a substantial contribution to the development of democratic theory, some of its core assumptions were exploited by totalitarian regimes, including fascism, Stalinism, and apartheid. The analysis of legal scholarship indicates a gradual convergence of natural law and legal positivism based on the principles of the rule of law and constitutionalism. Classical or “hard” positivism has largely been replaced by a moderate approach that acknowledges the influence of morality and justice on law. At the same time, modern natural law theory seeks to enhance the certainty of its principles through their incorporation into written law. Consequently, legislative and judicial bodies in many countries increasingly combine the principles of both doctrines in law-making and legal interpretation. The article substantiates that the rule of law, which originated as a natural law concept and was later reduced to the supremacy of statute, is currently developing through the interaction of natural and positive law. Constitutionalism, particularly its emphasis on limiting state power, serves as the foundation for this convergence. It is concluded that the jurisprudence of the Constitutional Court of Ukraine and the Supreme Court of Ukraine demonstrates that, despite the constitutional entrenchment of the rule of law, its interpretation is predominantly based on the principles of natural law, reflecting contemporary global trends in the development of the rule of law. Keywords: law, democracy, human rights, the rule of law, natural law doctrine, legal positivism, legal norm, justice, morality, the Constitution of Ukraine, application of legal norms, legal interpretation.