The Relationship between Natural Law and Positive Law

Rooted deeply in religious doctrine and endorsed by Aquinas, Natural Law theory outlines the direct relationship between law and a moral code of ethics.  Perhaps best defined as to order human affairs for the common good (Q. 90), natural law theorists use a moral standard to define what law should be.  In turn, these laws should also be in place to promote the common good, not just the good of a population segment.  As a result, laws that do not serve the common good are, by definition, not laws at all (Q. 90).

While natural law theory proposes a valid argument for how people should naturally act, I am of the belief that it does not necessarily provide the best foundation for positive law in conjunction with governments.  A rigid, moral-purpose intensive theory, it is nearly impossible to implement such a law structure for a vast community of people.  Given that laws should be easily understood and in turn, unambiguous, they must be implementable for a broad spectrum of people.  This principle complicates the use of rigid natural law theory.

As discussed in class, the duty to aid issue is made clear by natural law theorists.  Given a situation in the public sphere in which someone is in need of immediate help, it the the moral duty of a witness to do whatever is possible to aid that person.  Legally, though, this law is made difficult to implement.  Many factors will affect one’s decision to aid; Am I physically capable to give aid to this person? Do I have the skill required to give the best immediate aid to this person? Is there sufficient risk for my help to in fact, cause more harm than good? etc.  During a recent incident in Houston, an individual seeking to help another in an overturned vehicle caused the injured individual paralysis below the waist, after trying to remove him from the car.  Because of incidents like this, the law that would be proposed by natural law theorists is difficult to enact on a large-scale.  As a result, the United States has not proposed any law requiring people to help in situations such as this.  There is a contrast, then, between what natural law proposes and how positive law can be implemented.  

While positive law should, in my opinion, maintain a moral agenda in it’s implementation, the nature of law on a large scale should not withhold the entire scope of natural law.  Instead, positive law should contain only concepts of natural law theory, attributing discretion to those in power to make the best decisions for their community.


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