The Natural/Positive law debate appears to be about the connection between law and morality. It is often phrased “is there a necessary connection between the notion of law and morality”? The debate often appears extremely inane, partially because the terms used by both sides literally don’t mean the same thing: a traditional “natural law” theorist might refuse to call an unjust law a law, and therefore declare we should not obey it – whereas a positive law theorist would say it is indeed a law, but the question of whether you should obey it is a moral question you must decide. In some sense, it comes down to what we mean when we say “it is the law” – do we mean you must obey it, or do we merely mean that you will be sanctioned if you do not? Or, does it mean something else entirely?
In my understanding, the Natural law versus Positive law debate is really a debate about the value of endurance of social values, or of the status quo. The endurance of the status quo can clearly not be held to be an absolute value, because that could produce social relations which are anachronistic and inappropriate. This is the problem of utopianism. This fallacy is expressed in the positive law side’s characterization of natural law: natural law affirms that you should follow the law because it is the now, the law is in itself moral. The same fallacy is expressed in natural law’s condemnation of positive law: obey the law because it is the law, do not have moral concerns that a law may be not a genuine law because it is immoral.
In effect, both sides agree on the substantial question: there is some value in obeying the law simply because it is the law. And at the same time, there is some value in considering the possible difference between what you should do, and what the law tells you to do. If people over-value personal conscience, the danger is anarchy and revolt. If people over-value the status quo, the danger is fascism or other utopian nightmares.
Natural law has the advantage of holding the paradox in tension, however, because it holds a realist position with respect to the law’s need to adhere to a basic standard of rightness – and this standard is not perfect rightness, but an aversion from complete injustice – no one invokes natural law to say a law which isn’t completely perfect is no law at all, only laws which are highly injustice. Natural law, due to its moral realism, encourages you to think that the question of whether you should adhere to law is the same question as whether everyone should adhere to law.
Positive law has the disadvantage of obscuring the normative character of the law which derives from our intuitive moral realism about social forms. Because we intuitively believe that following the rules is fair, and only question it if the rules are demonstrably unfair (because with no rules, coordination dilemmas reduce overall welfare) that natural law can be a basis for denouncing a law. Positive law does not account for the normative force rules derive not from the force that stands behind them, but by the social complicitness, acquiescence to the rules. No political power can rule long by force alone – public acceptance of the rightness of the rules is required. Positive law allows us to say “the fact it is a law does not give me a reason, morally, to follow it” – however, this obscures the basic fact that the mere existence of a law does give us some moral obligation, though not a perfect one.
Standard interpretations of both natural and positive law interpretations of the connection between law and morality suffer from a poverty of subtlety – they both assume that if law and morals are connected, they must be connected by way of an identity. But, an identity need not be a perfect identity, and the question of a relation need not be clear. And, this seems to be the case here: the connection between law and morality is neither one of “law creates duty” nor “law, on its own, never creates duty”. In essence, both make the mistake of radical individualism – that law is a relation between the sovereign and myself. In fact, law is a relation between myself and my peers, as well as between myself and the sovereign, and between my peers and the sovereign. Social movements or their absence is required for the maintenance of existing laws, and can be the cause of legal transformations.