Natural Law v. Positive Law

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Hey, all! I’m new to the forums, but very excited to hear folks’ thoughts on some interesting issues.

I was curious to know what thoughts people have (or if they think about this stuff at all) concerning natural law and positive law. Of course, most Catholic scholars of the past (and perhaps the present) are natural law theorists. But has anyone heard of, or is anyone personally, a legal positivist?

Personally, I shift back and forth. I’m a law student, and at least here in the US, we’re fairly obsessed with positivism. I’m generally a big fan, but on occasion, I find myself wondering if there isn’t something about natural law that just makes sense.

Any thoughts?
 
Hey, all! I’m new to the forums, but very excited to hear folks’ thoughts on some interesting issues.

I was curious to know what thoughts people have (or if they think about this stuff at all) concerning natural law and positive law. Of course, most Catholic scholars of the past (and perhaps the present) are natural law theorists. But has anyone heard of, or is anyone personally, a legal positivist?

Personally, I shift back and forth. I’m a law student, and at least here in the US, we’re fairly obsessed with positivism. I’m generally a big fan, but on occasion, I find myself wondering if there isn’t something about natural law that just makes sense.

Any thoughts?
I am trying to understand your question. Positive law, it seems to me, is based upon the idea of justice or, perhaps, social contract. As such, it seems to be missing a foundation for the “content” of what is right and focuses more on the “form” of what is.

To put it in simpler terms, positive law might make a claim that we ought to treat everyone equally, but that is more of a formal injunction and lacks the content of what “equally” requires to be functional under the law. After all, treating everyone equally does not mean, necessarily, “equally well,” because “equally badly” still fulfills the mandate of equally.

Natural law seems to fill in the content of the “well” part in equally well, because the well-being of humans comes from our nature as what is required for humans to flourish.

Have you ever read John Rawls’ A Theory of Justice? He attempts to distill the means by which justice might provide its own principles for adjudicating or moving beyond the formal aspect of “equally,” more towards the “equally well.”

I am not sure if this is what you were seeking as a contribution to your OP, but it’s what came to mind when I read what you wrote.

BTW, welcome to the forums! I look forward to hearing more from you and your take on natural law.
 
I am trying to understand your question. Positive law, it seems to me, is based upon the idea of justice or, perhaps, social contract. As such, it seems to be missing a foundation for the “content” of what is right and focuses more on the “form” of what is.

To put it in simpler terms, positive law might make a claim that we ought to treat everyone equally, but that is more of a formal injunction and lacks the content of what “equally” requires to be functional under the law. After all, treating everyone equally does not mean, necessarily, “equally well,” because “equally badly” still fulfills the mandate of equally.

Natural law seems to fill in the content of the “well” part in equally well, because the well-being of humans comes from our nature as what is required for humans to flourish.
That’s exactly it. I think the classic explanation is probably the best: positivists think of law as if it were the rules of a chess match. Studying law is devoid of any moral or ethical content: it’s just about the rules of the game.

Natural law presumes there is some form of non-political law, and on top of that, thinks that the human mind can discover that law’s content. Natural law theorists also assert (I guess) that the application of this natural law to our political law is desirable.
Have you ever read John Rawls’ A Theory of Justice? He attempts to distill the means by which justice might provide its own principles for adjudicating or moving beyond the formal aspect of “equally,” more towards the “equally well.”
I have! Admittedly, it was a while back, in college. I never really understood if Rawls took a position on philosophy of law per se in ATJ. I mean, I guess Political Liberalism implies a belief in some natural law. But I think you could say that Rawls wasn’t aiming towards a description of law, but rather, simply outlining a rational process for determining social goods.

It’s been a while, so I could be way off!
I am not sure if this is what you were seeking as a contribution to your OP, but it’s what came to mind when I read what you wrote.

BTW, welcome to the forums! I look forward to hearing more from you and your take on natural law.
Thanks for the welcome!

The dilemma for me is that I feel particularly drawn to positivism as a theory of law. But when I try to figure out what content the law should actually have, I’m at a bit of a loss. For example, as a Catholic, I have certain values I take on personally and believe in deeply. But these values couldn’t really by labeled civic virtues: they’re religious or spiritual virtues.

Is it right for a person to demand that those religious values be the measure by which public law is evaluated? My friends disagree with me vehemently on the issue of abortion, for example. Taking it for granted that my beliefs concerning abortion are based on my religious beliefs about the human soul, can I (as a citizen) rationally demand that those beliefs shape laws concerning abortion?

If I believe that natural law exists, I can say, “Yes - abortion is contrary to natural law.” But the problem, of course, is that people would disagree with me about whether my belief IS the natural law (much less whether they believe in natural law at all!).

On the other hand, if I approach law with a positivist attitude, I can’t justifiably say that my own beliefs should give the law its content. But then, are religious believers doomed to political silence?

That’s a bit of ramble, so I apologize (I’m out of practice writing about these sorts of things!), but I’d love to read your responses!
 
I think all “positive law” comes from someone’s idea of ethics…and all ethical views have there basis in our response to nature…therefore all law is in essence “natural”.

For example, a person may see our world as god-free and randomly evolved…and, therefore, devoid of an overarching moral order from a Creator…Yet, that person STILL sees the world divided between the Strong and the Weak…between those who would Manipulate for selfish gain and those with Empathy toward others.
Hence, a secular “moral code” of ethics finds its way into law that is based on defending the “rights” of the Weak…(because all of nature apparently evolved equally) against the Domination of the Strong.

I believe, Western law is filled with both the Judeo-Christian and secular views of reality…but both take natural law into account.
 
I am surprised that ‘natural law’ theory has survived as long as it has, and if it is hanging on by a very worn thread, that is only because so much ‘moral’ theology is founded upon it. But that foundation looks is serious need of underpinning!

Natural Law from the religious perspective presupposes that we are ‘created’ in the image and likeness of a creator God. It further presupposes that within that creation is a moral and spiritual order. Yet there is nothing in human history to a reflect moral or spiritual order nor the progress the would spring from such order, that could be anything other than an affront to the very idea of ‘God’.

Certainly our species has ‘some’ moral potential and spiritual aspirations, but if anything, natural law may very well be the glass ceiling that defines the limitations of our species, fixed, if not a ‘prisoner’ within a materialist evolutionary paradigm.

As a growing environmental crisis approaches, our stewardship of the planet cannot in any way be considered worthy of any omniscient insight. Our species remains the most destructive and self destructive species. Were we created in His image or has that process of creation and completion yet to begin? energon.org.uk
 
…Yet there is nothing in human history to a reflect moral or spiritual order nor the progress the would spring from such order, that could be anything other than an affront to the very idea of ‘God’…
Wow.....There is NOTHING in human history that reflects moral order or spiritual order or progress? I could list a thousand in 3 hours....but I'm only gonna say this....the McRib sandwich with fries :D
 
I am surprised that ‘natural law’ theory has survived as long as it has, and if it is hanging on by a very worn thread, that is only because so much ‘moral’ theology is founded upon it. But that foundation looks is serious need of underpinning!

Natural Law from the religious perspective presupposes that we are ‘created’ in the image and likeness of a creator God. It further presupposes that within that creation is a moral and spiritual order. Yet there is nothing in human history to a reflect moral or spiritual order nor the progress the would spring from such order, that could be anything other than an affront to the very idea of ‘God’.

Certainly our species has ‘some’ moral potential and spiritual aspirations, but if anything, natural law may very well be the glass ceiling that defines the limitations of our species, fixed, if not a ‘prisoner’ within a materialist evolutionary paradigm.

As a growing environmental crisis approaches, our stewardship of the planet cannot in any way be considered worthy of any omniscient insight. Our species remains the most destructive and self destructive species. Were we created in His image or has that process of creation and completion yet to begin? energon.org.uk
My apologies, but I read and re-read your post and I still am quite unsure of what your point is, exactly. You have questions mixed in with assertions that seem to conflict with each other. Perhaps a clear conclusion with a few supporting points would be in order?
 
Hello, Seakelp,

I’m a lawyer and think about these issues constantly. A great website for natural-law resources is:

firstthings.com/

You might also be interested in Brian Tamanaha’s book Law as a Means to an End:

amazon.com/Law-Means-End-Threat-Context/dp/0521689678/ref=sr_1_1?s=books&ie=UTF8&qid=1363190689&sr=1-1&keywords=law+as+a+means+to+an+end
Thanks for the resources! I will have to give them a look. Maybe I’ll read that book over the summer - it looks fascinating.
 
Are natural law theory and legal positivism at odds? I’ve always understood natural law to be a moral theory, while legal positivism is a thesis about the relationship between moral theory and positive law. Seems like you could, say, think that a fetus is a person and should be treated as a person (because of natural law theory) while thinking that it is not legally a person (because of legal positivism and the laws of your particular jurisdiction).
 
Are natural law theory and legal positivism at odds? I’ve always understood natural law to be a moral theory, while legal positivism is a thesis about the relationship between moral theory and positive law. Seems like you could, say, think that a fetus is a person and should be treated as a person (because of natural law theory) while thinking that it is not legally a person (because of legal positivism and the laws of your particular jurisdiction).
Well, imagine you’re on SCOTUS. Someone asks you, “Judge, can a state’s professed interest in fetal life overcome a constitutional right of privacy? If so, can a state then regulate or outright ban a particular medical procedure?”

Your feelings on whether there is a “natural law” may well lead you to a different decision than if you were theorizing from a positivist standpoint.

I think your post illustrates the point that, yes, judges must follow the law. But when it comes to higher courts, who ask not, “What is the law?,” but, “What does the law mean?”, it seems natural (pun intended) to assume that one’s views on what “law” is in an abstract sense will influence one’s opinion.
 
The dilemma for me is that I feel particularly drawn to positivism as a theory of law. But when I try to figure out what content the law should actually have, I’m at a bit of a loss. For example, as a Catholic, I have certain values I take on personally and believe in deeply. But these values couldn’t really by labeled civic virtues: they’re religious or spiritual virtues.
The problem, it seems to me, is one of uncertainty. The values you have may be religious or spiritual, but they could just as well be the true values which underlie reality. In that case, giving the benefit of the doubt to alternative values is undermining the values which ought to be foremost in any considerations, but are not.

Since values are not “evidential” in nature, any true values which ought to drive considerations of law are actually at a disadvantage because they may have no more cogency than pseudo-values because of the presumed neutrality that does not side with any particular value set, not even the correct one.
Is it right for a person to demand that those religious values be the measure by which public law is evaluated? My friends disagree with me vehemently on the issue of abortion, for example. Taking it for granted that my beliefs concerning abortion are based on my religious beliefs about the human soul, can I (as a citizen) rationally demand that those beliefs shape laws concerning abortion?
This is the crux of the issue in practical terms. If religious values are “true” in any meaningful sense then their truth value must be expressible in non-religious terms and we need to resist the accusation that any expression of value is merely a religious one. Your first question can be reiterated as, “Is it right for a person to demand that true values be the measure by which public law is evaluated?” Surely, if there is no sense by which the “trueness” of values can be determined, then laws have no basis by which they must be obeyed. This would seem to lead to the undermining of the authority of all governments to impose laws upon citizens, except as a function of power. Legitimate authority would seem to require a determination of the truth value of ethical standards in order that citizens be expected to respect judicial authority.
If I believe that natural law exists, I can say, “Yes - abortion is contrary to natural law.” But the problem, of course, is that people would disagree with me about whether my belief IS the natural law (much less whether they believe in natural law at all!).

On the other hand, if I approach law with a positivist attitude, I can’t justifiably say that my own beliefs should give the law its content. But then, are religious believers doomed to political silence?
This is the work that Catholics have cut for them. Are your beliefs merely “your own beliefs” or those beliefs you have determined to be true (and not just for yourself but all)? This is where relativism in all its forms has undermined not just ethical standards but the trust and certainty in truth that was simply a given sixty years ago

The error of relativism is that it assumes disagreement over truth entails there is no truth to be had. Which is clearly wrong, since claiming there is no truth is itself a truth statement, but a logically incoherent one.

As in all disciplines, a method must be constructed by which ethical and legal first principles can be clearly established and demonstrated beyond doubt, even to the deconstructionists who use pseudo-logic like a wrecking ball.

Our culture has succumbed to the notion that only physical evidence counts towards establishing certainty. Yet physical reality exists only contingently and therefore cannot parlay certainty to metaphysical considerations. The problem, therefore, is a cultural one. We have too many individuals, especially among those in power, who have no grounds upon which to base decisions and so are susceptible to loosening any prohibitive laws in the name of “freedom” when really what is taking place is an assault by anarchy upon a culture that has lost all ability to defend its moral groundwork.
That’s a bit of ramble, so I apologize (I’m out of practice writing about these sorts of things!), but I’d love to read your responses!
Your rambling was undetectable I think you are very clear in what you write.

You might be interested in the Morality Without God thread

forums.catholic-questions.org/showthread.php?t=748996
 
There is a talk on the Boston College philosophy and theology podcasts (search for “Boston College” podcasts on iTunes) by Paul Kane from UT Austin Texas called “Are All Values Relative?” that might be what you are looking for in terms of connecting natural law with positive law.

The talk is also found here:

frontrow.bc.edu/podcasts/2007-04-17-kane.mp3
 
Thanks for the reply, Peter Plato!

I think you’re correct in that there is an aspect of moral relativism that haunts in the background of this question.

For me, though, it’s also about what kinds of truths / propositions / ideas should be entertained in a secular, democratic system. Yes, there are religious beliefs that I hold are true, and are true regardless of any other individual’s acceptance of those beliefs. God is real: therefore, atheism is untrue. Jesus Christ suffered and died in order to save humanity: any proposition contrary to this statement is therefore false.

But the question is, what aspects of my religious life should be kept “private” (in the sense that I, and my community of religious believers, can live out fully and personally) and what aspects should be pressed publicly. I should clarify here that by “public,” I don’t simply mean, “Out loud,” or, “Around other people who can see me.” By “espousing a belief publicly” I mean, “Attempting to use tools of government, particularly law, to impose that belief on others.”

Obviously, I believe that we should be MORE free to live and profess our faith “privately” than we should be free to espouse that belief “publicly.” I would never (and I doubt even the most devout Catholic could ever) seek to impose a law saying that every citizen in America must be Catholic, or they cannot vote.

But if I do believe that Catholicism is the one, true faith (and I do), how can I justify my belief that imposing Baptism on the populace in exchange for the franchise is inappropriate? What distinguishes, say, my belief in the Trinity from my belief, say, in the sacred life of the fetus? From my personal perspective, the truth of either is indistinguishable. So, why is the former somehow NOT appropriate for “public” dialogue, but the latter IS?

So, I think there’s something else going on aside from mere moral relativism. I think the wedge between certain kinds of religious beliefs and others, and that this wedge is important for coming to a fruitful understanding of how political / legal discussion intersects with religious belief.

But I’m not sure exactly where that wedge lies (lays?). You suggested something interesting:
This would seem to lead to the undermining of the authority of all governments to impose laws upon citizens, except as a function of power. Legitimate authority would seem to require a determination of the truth value of ethical standards in order that citizens be expected to respect judicial authority.
If I’m interpreting your comments correctly, you’re suggesting that government requires a moral basis in order to justifiably restrain the liberty of individuals. And further, that in order to do so, the laws which provide the basis for restraint must therefore themselves be moral. Thus, natural law has to be at the foundation of government.

At the root of this argument is the (very Liberal, and I think correct) idea that government must justify coercion: the presumption should be in favor of individual liberty.

Taking that for granted, maybe the “wedge” I talked about above lies within the type of proposition that a citizen must use in order to justify his / her public profession. If one lobbies for government coercion, one should be able to justify that lobbying. I think the wedge lies in what kind of justification one must give.

I think it should be a rational one. Which I guess brings us back to your discussion of relativism: can religious propositions be rationally justified? Obviously, yes. Some can. But some are mysteries, right? And while I agree with you that perhaps we have become lazy in demanding only empirical proofs, instead of attempting to think deeply and use our reason in addition to the senses, there is something more easily universalized about empirical evidence.
 
Well, imagine you’re on SCOTUS. Someone asks you, “Judge, can a state’s professed interest in fetal life overcome a constitutional right of privacy? If so, can a state then regulate or outright ban a particular medical procedure?”

Your feelings on whether there is a “natural law” may well lead you to a different decision than if you were theorizing from a positivist standpoint.
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.
 
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.
The issue, though, is whether moral law or civil law take precedence. If moral principles are obligatory for all human beings then they are likewise obligatory for any collective of human beings, whether in a family, community, society or state. It would not make sense to claim some act to be immoral and incumbent upon all human beings and then turn around and claim a group of humans of a certain number or office may rightly overrule moral injunctions. By what process could that justifiably be warranted?

Julie’s position must logically be that if an act is against natural moral law, any state that enacts a law to the contrary has superceded its authority. If human beings are obligated by moral laws, then all human beings are, including groups of human beings that form governing bodies over other human beings. Positive law cannot override moral principles.
 
Well, I agree. But I think that Julie could say that the state can and should prohibit abortion even while saying that it would be illegal for the state to do so. In a similar vein, I would say that it’s illegal to promote democracy in North Korea, even though it’s undeniably an admirable thing to do.

A legal positivist could absolutely believe that moral principles take precedence over legal principles when it comes to what we ought to do. Positivism, as I take it, is just a thesis about what the law is, not about our moral obligation to follow the law.
 
Well, I agree. But I think that Julie could say that the state can and should prohibit abortion even while saying that it would be illegal for the state to do so.
I am not clear how any action would be “illegal” for the state since whatever the state rules on, by definition, becomes legal and, therefore, could never be illegal, by the same definition.
 
Well, I was responding to a question about the positive law of the United States, where the individual States have obligations to the federal Constitution.
 
Well, I was responding to a question about the positive law of the United States, where the individual States have obligations to the federal Constitution.
My understanding is that the Casey Decision (1992) changed that “obligation” somewhat. By ruling that "…f the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as [for example] the decision whether to bear or beget a child." Essentially this means that an individual’s rights to liberty can possibly override “governmental intrusion” in all matters that enough individuals declare to be fundamental to them, therefore it is possible for individual freedom to be determined so at stake so that any government intrusion could be ruled intrusive. This does open the possibility of a tyranny of a majority in matters considered “fundamental” by a majority. The will of the majority therefore trumps the constitution and natural law because of this decision. The government or “we the people” no longer has obligations to the constitution since any law, in principle, can be changed as a matter of personal liberty. This was the decision that effectively separated the process of law making from having any absolute accountability to the Constitution.
 
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