-3

I have asked about the philosophical definition of "natural" and "naturalness" in the Philosophy Stackexchange https://philosophy.stackexchange.com/questions/91989/formal-definition-of-natural-and-naturalness-for-the-ethics-and-moral-philos and I have demonstrated in my question that the terms "natural" has no philosophical meaning. Terms "natural" can have only sociological, positive meaning that is accepted or defined in some special groups of society. While I am still waiting for the professional answers for my philosophy question, I can assume that they will strongly argue against any philosophical meaning of the term "natural".

So, if the content of "natural" is created by some societal groups, then should we consider the natural law as the special case of positive law?

p.s. I kindly invite you to contribute an answer to my philosophy question if you have anything meaningful to say on that.

4
  • 1
    What do you mean by "positive law"? Most laws seem to be negative, in that they restrict or prohibit certain behaviours etc.
    – user35069
    Commented Jun 30, 2022 at 23:14
  • 1
    en.wikipedia.org/wiki/Positive_law - definition of positive law as "human made", "subjective" law by common agreement as the opposite to the "natural law" which is supposed to be "objective", independent of the human agreement and society perceptions.
    – TomR
    Commented Jun 30, 2022 at 23:16
  • 3
    The Wikipedia article is internally contradictory on this question: natural law is and is not a kind of positive law. Since "Positive law" is a philosophical concept, it's not a legal question as to whether "positive law" means something other than "law, from a legal positivist perspective". In other words, it's not clear what you are asking. Define "positive law" well enough, and we might be able to answer.
    – user6726
    Commented Jun 30, 2022 at 23:38
  • 1
    "Natural law" has been invoked to justify all manner of evil (example: racism: "it's natural to dislike those who are different, some races are superior...").
    – Tiger Guy
    Commented Jul 1, 2022 at 15:02

1 Answer 1

5

Definitions

The online free version (2nd ed) of Black's Law Dictionary defines"positive law" as:

Legislature that consists of guidelines, statutes and codes which are imposed upon a country. It is dissimilar to natural law.

The same work defines "natural law" as:

A rule of conduct arising out of the natural relations of human beings, established by the Creator, and existing prior to any positive precept Webster. The foundation of this law is placed by the best writers in the will of God, discovered by right reason, and aided by divine revelation ; and its principles, when applicable, apply with equal obligation to individuals and to nations. 1 Kent, Comm. 2, note; Id 4, note. See Jus NATURALE. The rule and dictate of right reason, showing the moral deformity or moral necessity there is in any act, according to its suitableness or unsuitableness to a reasonable nature. Tayl. Civil Law, 99. This expression, “natural law,” or jus naturale, was largely used in the philosophical speculations of the Roman jurists of the Antonine age, and was intended to denote a system of rules and principles for the guidance of human conduct which, independently of enacted law or of the systems peculiar to any one people, might be discovered by the rational intelligence of man, and would be found to grow out of and conform to his nature, meaning by that word his whole mental, moral, and physical constitution. ...

The page "THE TERM "POSITIVE LAW" from the US Office of the Law Revision Counsel reads:

When used with respect to the United States Code—as in positive law codification or a positive law title of the Code–the term "positive law" has a special and particular meaning. In general, however, especially in legal philosophy, the term "positive law" is used more broadly. There is overlap to be sure. But the meaning of the term as used generally is not identical to the meaning of the term as used with respect to the Code, and the distinction must be understood to avoid confusion[1]

In general, the term "positive law" connotes statutes, i.e., law that has been enacted by a duly authorized legislature.[2] As used in this sense, positive law is distinguishable from natural law. The term "natural law", especially as used generally in legal philosophy, refers to a set of universal principles and rules that properly govern moral human conduct. Unlike a statute, natural law is not created by human beings. Rather, natural law is thought to be the preexisting law of nature, which human beings can discover through their capacity for rational analysis.

Within the context of the Code, the term "positive law" is used in a more limited sense. A positive law title of the Code is a title that has been enacted as a statute. To enact the title, a positive law codification bill is introduced in Congress. The bill repeals existing laws on a certain subject and restates those laws in a new form–a positive law title of the Code. The titles of the Code that have not been enacted through this process are called non-positive law titles.

The LII page "Positive Law" reads:

Legal rules enacted by people in a political community. Positive law includes constitutions, statutes, and regulations.

Merriam-Webster defines "positive law" as:

law established or recognized by governmental authority

and contrasts it with "natural law"

Subset?

The question asks:

So, if the content of "natural" is created by some societal groups, then should we consider the natural law as the special case of positive law?

**No **

Positive law (a now-traditional mistranslation) is law enacted by some authority, such as a legislature, monarch, council, or dictator. It is law that some group of people are expected to obey. Natural law, on the other hand, is a system of rules, and principles from which those rules are derived, that some person or group thinks are rational, self-consistent, logical, and ought properly to be the basis for law. It may be presented as "self-evident" or "logically essential" or 'universally true" or "divinely inspired". But different groups have disagreed widely on what the content of such "natural law" is. It often has little or no connection with current positive law

Use of Natural Law in Early US Courts and Legislatures

From the founding of the US, though roughly the 1840s, natural law was appealed to, some times explicitly, sometimes as the "self-evident basis of law" or some similar term, with some frequency, declining toward the end of that period. Natural law precepts and concepts influenced the drafters of the US Federal Constitution (and perhaps even more the wording of the Declaration of Independence).

Perhaps even more significantly, judges, very much including Justices of the US Supreme Court, often drew on Natural Law as a basis, or one basis among several, for their decisions.

The Marshall Court and Cultural Change: 1815-1835 by G. Edward White and Gerald Gunther discusses this procvess at soem length, particularly in chapters 2, 9, and 10. That book discusses how the Marshall Court often tended to "pack" constitutional provisions with context an ideas drawn form a natural law background. This was particularly true of the Contract Clause. Natural law concepts were thus read in to constitutional language, particularly in the Dartmouth College case, and in several cases in which state bankruptcy laws were struck down totally or in part. Natural law concepts of "property" and "vested rights" were treated as implicitly present in the Constitution. In other cases decisions were based directly on natural law principles, without first reading these into the constitution.

However, in the Taney Court during the period from the 1840s to the 1860s, such use of natural law almost entirely ceased in US courts.

Notes

[1] Why is there a specialized meaning for the term "positive law" with respect to the United States Code, and why is this term used despite the potential for confusion with the broader meaning given to the identical term in legal philosophy? The answer involves a historical solution to a statutory drafting problem. For generations, Congress has used the term "positive law" when it enacts a title of the Code, as such, into statutory law. For example, section 1 of the Act of July 30, 1947 (1 U.S.C. note prec. 1), provides in relevant part: "Title 1 of the United States Code entitled 'General Provisions', is codified and enacted into positive law . . . ." (emphasis added). Earlier legislative drafters chose the term "positive law" in order to capture the abstract distinction between a title of the Code that has been enacted, as such, versus a title of the Code that has not been enacted, as such, but that sets forth enacted statutes. More literally, this distinction might be expressed as "enacted title" versus "non-enacted title", but those literal terms are problematic since they incorrectly suggest that provisions set forth in a "non-enacted title" of the Code have not been enacted. Those provisions have been enacted, but as part of a number of freestanding statutes rather than as part of an enacted (positive law) title. The specialized use of the term "positive law" in this situation captures the abstract distinction between the two types of titles in the Code, and the use of the term in this way is now well established.

[2] "Positive law typically consists of enacted law—the codes, statutes, and regulations that are applied and enforced in the courts. The term derives from the medieval use of positum (Latin "established"), so that the phrase positive law literally means law established by human authority." Black's Law Dictionary 1200 (8th ed. 2004).

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .