Source of law on the axis of voluntarist and necessitist approaches

For centuries, people have sought for the source of social rules that they depend on out of the community, and sacred beings. These transcendent and sacred beings, whatever they are called (God, nature, holy ancestor), law has always been accepted as the creation of these natural powers. As a result of this transcendence, people could only make laws which are not inconsistent with these sacred and cannot be changed rules. In the late Middle ages, with the prevail on the modern tought that put the individual in the center, natural law will be replaced with human made or positive law, sacred and transcendent references to law will end. Human is now the creator of his own law and makes it with his own freewill. In the source of law, there is earthly power not transcendent power anymore. While this earthly power appears as a monarch at the beginning of modernity where absolute monarchies rule; in onward process of modernity, it will yield its place to nation with the effects of the theory of social contract. Political power and law now find their source from free will of nation. Acception of law as a volitional creation in this way will bring natural legalism and modern voluntarist positivism side by side. In both approaches, the law is idealised by presenting it as the disposition of an autonomous creative will, and the necessities underlying the legal phenomenon are ignored. Against the approach which puts will to the source of law, there are necessity approaches which defend that any transcendent or earthly will cannot create law. According to necessity approaches, law is not autonomous and superior to society, but a phenomenon determined by necessities and immanent to sociality. The aim of this study is to make a contribution to the approaches that explain the law with power relations and necessities that determine these power relations, in the light of anthropological studies. It is also a criticism towards the modern law dicourse which finds the source of law in earthly autonomous will with the theory of sovereignty and the social contract theories attached to this theory.