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Author Topic: Natural Law v. Positive Law  (Read 8260 times)

uscitalian1982

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Natural Law v. Positive Law
« on: February 13, 2007, 10:38:51 AM »
What is the difference?  Are any of you learning about natural law in your secular law school? 

dresblues

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Re: Natural Law v. Positive Law
« Reply #1 on: February 13, 2007, 01:24:59 PM »
This is an old philosophical question. If I remember correctly, Natural Law is a law which cannot be broken, it is not manmade and may not even be known by man, nonetheless it must be followed. A simple example is the law of gravity, however, natural law does go deeper in the philosophical sense. Positive Law on the other hand, if I remember correctly, is a manmade law made for the betterment of mankind. Man knows this law, makes this law, and therefore has the ability to break this law, or amend it, or delete it.

I don't know, maybe I'm way off with the question you're asking.

xferlawstudent

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Re: Natural Law v. Positive Law
« Reply #2 on: February 13, 2007, 01:40:44 PM »
Dresblues is right.  Natural law is physics, that is, law of the universe.  It is valid thoughout the universe, while positive law is made by a government (man-made).  There are, however, philosophical intersections such as natural rights (See Declaration of Indep.) and there is some debate of whether such rights exist.


Jumboshrimps

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Re: Natural Law v. Positive Law
« Reply #3 on: February 13, 2007, 05:30:28 PM »
Positivists believe that there is no law unless we create it, which is true in the sense that there are no social consequences of our actions unless society has agreed to implement such consequences.

The concept of "natural law" suggests that there are forces acting upon man that are beyond change by man. Although there are obvious examples of "scientific" natural law, such as the law of gravity, there are more subtle examples such as the law that sleeping with your neighbor's wife will cause hardship on you and others, or the law that killing another person will cause that person's family to come after you, or the law that destroying your immediate envirmonment will destroy you. These laws are real also.

The two are not in conflict.

dresblues

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Re: Natural Law v. Positive Law
« Reply #4 on: February 13, 2007, 08:32:01 PM »
Don't miss the underlying principle of a Natural Law; it is binding beyond the will of any material being, man included. What I'm trying to get across is that a Natural Law exists even without the existence of man, and indeed as history shows us, Natural Law did exist well before man, and even life in general. That said, the examples that Jumbo has offered are not examples of Natural Law at all, however, they are real laws. They cannot be Natural Law because they won't exist without life, among other reasons that I wont exhaust. They may be laws that are psychologically or culturally defined, of course if I killed you your family would be mad, but I could break that law by escaping detection, or your family can break that law of avenging your death by letting the justice system work. Sleeping with the neighbors wife might cause hardships among self and others, but it might not, also in other cultures around the world it might not be a problem, some cultures allow women to have multiple husbands. Nomadic tribes in Afghanistan are constanly marrying, stealing, and losing wives, they face no harship, and everyone just moves on with life.

Like I said, those laws are real, of course, but are culturally and psychologically defined, in no way can they be confused with Natural Law. The law about the environment almost seems a Natural Law, I thought about this one a bit because it does seem to stand my test of Natural Law, but I discovered the quirk. There may be a law about environment and destruction, but it is reverse of what you propose. As history has shown us time and time again, I don't think it to be possible for a species to destroy the environment, we can damage it, yes, but never destroy it to the point of our own extinction, but rather its the environment that destroys a species. Consider the Dinosaurs, the massive extinctions and the end of the last iceage, and numerous other examples I wont mention.

I've never thought so much about Natural Law in one day.

Jumboshrimps

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Re: Natural Law v. Positive Law
« Reply #5 on: February 14, 2007, 08:59:39 AM »
Then, because you feel that any unconscious rule that results from culture (and not physics) is not natural law, do you rejet the notion of "natural rights."?

I think the line between "natural" and positive law must be drawn between those laws which were consciously created and those which exist somewhat "by default." The line is most apparent when observing aboriginal people, none of which created much positive law. They had no need for it, and that fact demonstrates the power of "natural law."

There are purely cultural phenomena that fall squarely within any definition of "natural law." One is that human primates organize themselves into tribes (just as birds form flocks and dogs form packs). Our particular culture, through positive law, has gone far toward ignoring that law.   

uscitalian1982

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Re: Natural Law v. Positive Law
« Reply #6 on: February 14, 2007, 09:22:56 AM »
I like to think of natural law as law that is "written on the heart" whereas positive law is man-made law that that has natural-law at its root.  An example of this would be murder.  If there were not law against murder, most men would have it written on their heart (natural law) that murder is wrong.  Man has taken this sentiment, and prohibited murder (man-made law).

loki13

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Re: Natural Law v. Positive Law
« Reply #7 on: February 14, 2007, 11:10:50 AM »
Ah..... but we think of those in positive terms (heh) ass malum in se crimes. Wrong in themselves. The trouble, if you will, with natural law (wtihout getting into a long discourse) it his:

A soldier kills another soldier in war. Is this malum in se? Is this murder?
A person attacks you. You kill them in self-defense. Malum in se?
You're crazy. You strangle someone thinking you're wringing out the clothes. Malum in se?
A baby with a ticking time bomb attached is in a crowd of people. You throw him over the cliff to save everyone else. Malum in se?
God commands you to kill someone. Malum in se?
You catch your wife in bed with another man. You, in a rage, kill him. Malum in se?
You stab someone in the back... because you know that the person is a mass murderer who will continue to kill many people. Malum in se?

Now, most of those examples are pretty well known hypos. But as you can see, even 'murder' broadly defined (the killing of another human being) is not an absolute across time & culture as either 'natural law' or 'malum in se'. 'Natural law' and 'malum in se' appear to be culturally defined.

Except at Ave Maria. *grin*

loki13

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Re: Natural Law v. Positive Law
« Reply #8 on: February 14, 2007, 01:27:05 PM »
Before my above post gets taken out of context, let me add that I only wanted to provoke a little thought. Most of the examples I cited are familiar to us for common law defenses (justifications, excuses etc.). The criminal justice system has long been based on the idea that some things are inherently wrong. But, whether you label them 'malum in se' or the products of natural law, you quickly run into definitional problems when determinig what those transgressive behaviors that are 'malum in se' or violattions of natural law are.

You can take an expansive view-
All killing is wrong. But we excuse some forms.

Or, you can narrow-
Unjustified killing is wrong.
...but then, who comes up with the justification?

This is not an argument for total relativism. Rather, it is an acknowedgement that a simple statement that "Murder is wrong" and against natural law requires more than a little thought. Is slavery against natural law (cf Lysander Spooner)? Homsexuality? Theft? Is abortion against natural law? Does that depend on how we define a person?

The issues I see with simplistic definitions of natural law (you know in your heart that it's right) is that different people have different hearts (different natures, if you will), and so do different cultures. Of course, theologians and lawyers have made great advances in natural law and made it much more adaptable and complex than my brief sketch.

But if it's that complex, how natural is it?

dresblues

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Re: Natural Law v. Positive Law
« Reply #9 on: February 14, 2007, 02:00:31 PM »
I don't want to waste anymore time on this. A Natural Law cannot be broken. Moral sentiments seem to be natural law because our morality leads us to think egocentrically about it; we have the invarying sense that "my way" is the right way, or that mankinds actions and beliefs must somehow be determined by a Natural Law internal to human psychology, but its not. A feeling internal to man that it is wrong to kill another man does not make it a natural law that it is wrong to kill another man, its logically ingrained in the mindwork of a species not to kill other members of that species unless there is due cause. But not all members of a species hold that belief, hence the law is broken and cannot qualify as a naturl law.