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What are the differences between natural law and positive law?

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Colin Cavendish-Jones, Ph.D. eNotes educator | Certified Educator

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The essential difference between natural and positive law can be summed-up by a brief examination of Sir Leslie Stephen's famous remark in The Science of Ethics:

If a legislature decided that all blue-eyed babies should be murdered, the preservation of blue-eyed babies would be illegal.

Positive law is whatever the legislature says it is (or, in jurisdictions where case law is binding, whatever the judiciary has ruled in cases which have not been overturned and constitute sources of precedent). It is the sum total of all statutes and case law operating in a given place at a given time. If this includes a law necessitating the murder of blue-eyed babies, that law is as valid as any other.

Natural law is law which claims a basis in God, nature or reason. It could not, therefore, include the murder of blue-eyed babies, whatever the statues happen to say. According to the idea of natural law, rights are not conferred by statute but are inherent.

It is generally assumed, as Aristotle assumed, that in a society governed by the rule of law rather than by tyranny, positive and natural law will coincide, since a positive law which was manifestly contrary to natural law would never be passed by a legislature (and if it were passed, citizens would see no reason to obey it). In practice, however, conceptions of natural rights differ considerably between societies, so some of the positive law in any country will be certain to seem unjust (and therefore contrary to natural law) to many people. This applies in particular to laws regarding such matters as controlled substances or freedom of religion, about which there is little international agreement.

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Lynnette Wofford eNotes educator | Certified Educator

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The distinction between natural law and conventional law is grounded in Greek philosophical thought, which distinguished nature (physis) from custom (nomos). Natural law, which was often associated with divine law, encompassed such things as the natural movement of the elements (earth descending and air rising) and the movements of the stars, and was part of nature; natural laws could not be changed by humans. Customs and conventional laws were created by humans, and included such things as social customs and criminal laws and could be changed by humans. 

The Greeks, and many subsequent thinkers, made the point that if conventional laws were grounded in natural law then rather than being mutable and arbitrary, they would be fair and just. One sign of a law being "natural" is that it is universal rather than limited to one specific culture.

For example, an overwhelming number of cultures have taboos against incest. Modern evolutionary biologists argue that these taboos are rooted in the natural laws of genetics, because incest or inbreeding is likely to increase the frequency of deleterious recessive genes. On the other hand, most people think that laws and conventions determining gender roles, such as the prohibition against females driving in Saudi Arabia, are purely conventional, as not only are they not universal but not grounded in the actual statistical evidence that female drivers are actually far safer than male drivers, getting in fewer accidents and getting fewer tickets. 

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Tim Mbiti eNotes educator | Certified Educator

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Natural law and positive law differ in a number of ways. Firstly, natural laws are God-given laws inherent in our being whereas positive laws are man-made. Secondly, natural laws are universal as opposed to positive laws which are only applicable to a geographically defined political territory such as that controlled by a government. Thirdly, whereas natural laws are eternal and constant, positive laws can be amended or rescinded. Fourthly, natural law is based on reason and human beings have the free will to choose what they feel is right or wrong. On the other hand, positive law prescribes what is right or wrong and people have to abide by the prescriptions. Positive law is enforced by institutions such as the police and judiciary. Lastly, natural law can exist even in the absence of man but positive law is dependent on the existence of man.

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Positive law is made by people.  Natural law comes from sources that are universal.  To many people (for example, to Thomas Jefferson in the Declaration of Independence) the source of natural law is God.  Natural law is universal; it applies to everyone.  Positive law only applies to those people who are the subjects or citizens of the government that creates the law.  Positive law must be written down.  Natural laws are unwritten laws.  In short, then, positive law must be made by a given government and it relies on the government for its power.  Natural law is not made by people and has moral power regardless of whether a government recognizes it and makes it into positive law or not.

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