Natural Law v. Positive Law

[seakelp]

Well, sort of what I’m saying is that those positions aren’t exclusive. In fact, as far as I’m aware they’re orthogonal. If Julie is a positivist, then she can believe that the natural moral law makes it a) immoral to perform or procure an abortion and b) obligatory for the state to ban abortion, while believing that as a matter of fact c) abortion is legal and d) the state may not legally (i.e. constitutionally) ban abortion. On the other hand if Mark isn’t a positivist and he believes (a) and (b), he might believe as a result that abortion is in fact illegal or that the state in fact has the right to ban it. But that wouldn’t mean that Mark is rejecting positivism because of natural law. After all, Julie and Mark agree about what the natural law says. Their disagreement is strictly over the relationship between moral law and positive law, and thus the content of the positive law as well.

So, first, “orthogonal” is a fantastic word. One of the professors at my law school had a very (in)famous run-in with the word during Supreme Court oral arguments (volokh.com/2010/01/11/orthogonal-ooh/).

Second, yeah, I kind of see what you mean. It’s definitely possible to have some sort of hybrid. I would say all natural law theorists recognize the positive law as existing.

 

[Charlemagne_II]

Natural law is the foundation of positive law. However, natural law can be overcome by logical tricks, as when Aristotle justified slavery, or as when modern day sodomites justify same-sex marriage. That is why Christianity brings to us a revealed theology that is more in sync with natural law than with positive law. Whereas the positive law may justify abortion, natural law condemns it as an outrage against nature. The Catholic Church is more connected to natural law than to positive law, though over the centuries it has tried to influence positive law by reminding men that natural law is ordered by God; and all the more so we know this because common sense tells us so.