Cross the Minnesota border with a duck on your head and you may face legal consequences. Tap your foot to the music in a New Hampshire tavern and you’ve violated the law. Throw pickle juice at a Rhode Island trolley (if you can find one) and you could receive a citation.
These old laws must have made sense when they were enacted but now we just wonder what legislators were thinking.
Those studying our laws 100 years from now might also scratch their heads at some of our statutes—and they may already feel the effect of some of our human-enacted laws that diverge from God’s natural law.
All human-made statutory laws are considered positive law. What exactly is positive law? What’s the difference between positive law and natural law? Do they have anything to do with each other? And what happens if positive law doesn’t align with natural law?
The term “positive law” was first used by the philosopher Thomas Hobbes in his 1651 work “Leviathan:”
Positive, are those which have not been for Eternity; but have been made Lawes by the Will of those that have had the Soveraign Power over others; and are either written, or made known to men, by some other argument of the Will of their Legislator.
Positive law also refers to the establishment of specific rights for an individual or group.
According to one legal definition:
Positive laws may be promulgated, passed, adopted, or otherwise “posited” by an official or entity vested with authority by the government to prescribe the rules and regulations for a particular community. In the United States, positive laws come in a variety of forms at both the state and federal levels, including legislative enactments, judicial orders, executive decrees, and administrative regulations. In short, a positive law is any express written command of the government.
Positive law can also be divine. Canon law and other Church laws are humanly instituted but inspired by God’s revelation. Natural law, on the other hand, refers to God’s laws governing the nature of things. Positive divine law can’t contradict natural law, instead it confirms and further defines it.
Separable or inseparable from our nature?
Natural law is proclaimed to us by the natural light of reason and is inseparable from our nature, whereas positive law is made known by outward signs—word of mouth or writing and is not inseparable from our nature.
Natural law is the foundation and root of the obligation of all positive laws. We can’t violate the natural moral law and the positive laws that are rooted in it without opposing God’s will.
Human-enacted positive laws can be amended or rescinded. Natural law, however, comes from the unchanging God and can’t be revised or avoided. When a positive law violates natural law, as sure as the former is temporal and the latter is immutable, there will be consequences.
A law governing pickle juice and trolleys doesn’t challenge the natural law, although maybe someone was spared inconvenience or even injury because of it.
Defying natural laws
But positive laws that disregard natural law are still subject to it, much the way someone who exercises a legal right to “fly” from a 15-story building will quickly become acquainted with the more established law of gravity.
In the case of some of our newer laws, especially those dealing with sexual morality, it just might take a little longer to hit the ground.