The failure of positive and natural law to recognize the validity of the other, or to grasp the essential differences between them with regards to the social reality of moral life, is a product of the 20th century obsession with utopia. Of course, not with literal “utopia”, i.e. an “ideal place” – which our modern “pragmatic” view of life rejects – but with utopianism with respect to description: Scientism. Scientism is characterized with an obsession with finding the correct answer, the true proposition, the most appropriate single unified theory of anything. Scientism is the rejection of Hegel not only because he is too difficult, but because the idea that different sets of explanations might exist in tension with each other which does not resolve in one idea “beating” the other idea, is not comprehensible within scientific logic.
Science is falsification within a context. A hypothesis either succeeds or fails, given a research paradigm, a set of experiments, a set of explanatory demands etc… We find it extremely difficult to understand how a Scientific hypothesis might be true and false – and to the extent that we do grasp this duality of truth valence we do so only insofar as one proposition might be a “simplification” of another. I.e. we believe Newtonian dynamics are a simplification of Relativity. And, we believe relativity and quantum mechanics are simplifications of some unknown unified field theory, which would be the “true reality”.
But – why do we assume that reality, underneath, does not contain essential tensions? Why do we believe that reality itself does not abhor Platonism (the idea that reality is the imperfect manifestation of perfect forms – if reality were not Platonistic, then the scientific simplifications of reality would not be properly true). One reason is the success of this kind of explanation – it appears eminently pragmatic. But, has this pragmatism expanded from empirical universality to paradigmatic priority, has scientism become a transcendental – and a powerful one, which blinds us from the possibility that another kind of a priori supposition about reality might – pragmatically – serve us better?
The natural law/positive law debate seems to be an example of the negative effects in the humanities of scientistic assumptions, spread from the natural sciences. We demand that either positivism or natural law theory be “true”, or be “most pragmatic” – and we are expected to take sides. This incentive encourages us to solve the explanation of law and society purely through one of the positions, and to ridicule the other position by repeating empty criticisms about natural law’s negligence of reality, or positive law’s affirmation of evil laws.
In reality, both natural and positive law describes true things about the relation between law and morality – but the seeming opposition between them falsely encourages us to believe we must take sides on certain issues concerning the relation between morality and citizenship, or the relation between personal and public morality. Natural law assumes that morality is not essentially my personal perspective on law, but rather something out there, between us, sometimes embedded in a common idea of a deity. Because morality is really out there in institutions, the fact those institutions should meet the standards of morality is obvious. The problem is, my perspective on what morality is remains partial – so there is always a possible encouragement to believe morality has nothing to do with society, but is a direct relationship between me and the truth. This encourages us to divide the question of whether something is a genuine law, and what is the genuinely right thing to do. A kind of relativism is at play here – who am I to tell someone else what moral beliefs they should have? For a moral realist, a natural law perspective, this is not a problem – I am a person like any other, and I can give my reasons in public to argue and try to convince others why the perspective I have on morality is true, or worth listening to. Positive law’s division between what the law is and what I should do encourages us to believe that morality is radically personal – and the problem of divergent perspectives of morality is not something to be solved in common institutions, like law. Now, of course there is something true about this perspectival scepticism about morality – no one can know for sure that their view on morality is right, and it does make sense to distinguish between my personal moral perspective and the notion of legal obligation. But, at the same time, it makes sense to recognize that law is a coercive institution which embodies a convergence of moral views, and is itself one source of people’s moral views. Because law is an embodiment and a source of morality, it really matters whether it is moral or not – and not just in my perspective, but from the perspective of the flourishing of society, and the coming to reality of values which really do serve public good – not just in my personal perspective but in general.
We can actually see the positive/natural law distinction in ancient theories of law: the distinction between the Greek and the Hebraic tradition. The Greek notion of legal versus moral obligation is characterized by Socrates. Socrates insisted not to escape execution because, although he believed the Athenian court had made an unjust decision, his duty to Athens, his duty to instantiate what he believed is justice and the right ideals in his state was higher than the obligation to have justice done in any particular case. Socrates really believed that co-operation in society places duties on us because our major moral obligation is to make society live up to standards of Justice. Socrates indeed believed that law came from the gods, but did not believe that unjust laws do not compel – rather, unjust laws compel us both to obey them and to change them. Morality has value insofar as it is instantiated in public institutions, put in-force. On the other hand, the Hebraic tradition subordinates social obligation to moral obligation – moral obligation comes from God, and we should obey social laws only if they do not contradict the moral laws. If the social laws fail to correspond with the moral laws, we should simply ignore the society’s laws, or move away. This had real political implications for ancient Israel – it’s the cause of the rabit factionalism where small groups would leave larger settlements over differences of religious interpretation and begin their own small societies. In fact, it’s why we have the dead sea scrolls – those scrolls come from a tiny settlement of people who had broken off from a larger Jewish society due to their feeling of direct obligation to God, not to putting the correct laws into force in larger society.
We might ask what implications the confusion surrounding natural and positive law has today? For one, it is not irrelevant that in student papers, those who agree with positive law tend to advocate what positive law theorists call ideological positive law – the idea that the fact something is a law by itself grants a moral obligation to follow it. No serious positive law theorists hold this absurd moral position – and yet it is in effect advocated by tendencies in the thinking they advocate. Moreover, it encourages people to believe that morality is only in their head, and not something manifested out there, between us, embedded in our social reality.