Positive Law and Natural Law

In this blog I'll use the phrase positive law to mean "law that derives from human expression" and I'll use the phrase natural law to mean "law that does not derive from human expression."  So, that's simple.

Lamentably, those aren't quite the uses that lawyers (or philosophers) often have for the terms; their uses frequently are ambiguous, poorly reasoned, and inconsistent. What may not seem to be a big deal does turn out to be a big deal. It leaves their analysis often clotted and wrong, and betrays a larger failure to understand how humans and our rules relate to the world we inhabit.  So, it's time for a somewhat esoteric discussion of these terms -- that may not be your "thing"  -- feel free to go. But there is a reason (besides its interest to me): it has important legal, political, and ontological ramifications.

Legal scholars -- judges and lawyers and sometimes philosophers -- often use the phrase "positive law"simply to mean a statute or code law and intend that as a synonym for the law itself.  This view results in a host of problems, particularly when compared with other common uses of the phrase.

For one, in the U.S. and Commonwealth countries historically the "law" is often made by judges and even when dealing with a code a judicial gloss on the code will control in future cases over the code itself.  So, are judicial statements positive law? Typically they are called "common law" as distinct from "positive law," though that distinction is usually not made plain, and it leaves a large class of affirmative statements of law not included in the meaning of "positive law."

For another, determining what are the affirmative or positive statements of the law and what are conjectures, interpretations, or implications is not always clear.  Again, the courts are involved (often in civil jurisdictions as well as common law jurisdictions) to provide those interpretations.  Sloppiness in the way codes are drafted -- which is inevitable if they are drafted in natural language -- makes uncertainty as to what constitutes "positive law" inevitable.

While "positive law" might be distinguished for some from "common law," the "common law," in fact, arose from turning local customs into law.  Putting to the side the propriety of that in a democracy or republic, it involved making affirmative obligations out of local practices.  Many writers distinguishing the "positive" and "common" law appear, at best, only partly aware of this history (nor is it an issue of merely historical interest, as the relation of customary law to affirmative statements remains a critical issue in international law).  The phrase "common law" is itself ambiguous and can mean not just the customary or judge made law but all the law of common law jurisdictions or it can mean only the law applied by judges in trial courts as opposed to courts act without juries.

"Positive law" is often distinguished from "natural law." "Natural law," however, traditionally has been used to mean the "laws of nature" or devine law or inherent law or human expressions of them.  Occasionally, "natural law" is used to mean "common law," holding it in opposition to "positive law," as if there's a "law of the people" and then statutory law.  Some would distinguish "natural law" from "moral laws," if at all, by saying "natural law" is merely the human statement of eternal moral principles. If that is so, then "natural law" and "positive law" might be the same thing; affirmative statutory statements, for example, might be expressions of "moral law." On the other hand, by this view there may be laws that are neither "positive laws" nor "natural laws"; a  court rule, for example, may not be formally codified and not a reflection of "moral law," but nonetheless be law.

Some of the ambiguity in "positive law" comes from the legacy of positivism -- particularly extremist and naïve views of positivism.  Positivism holds that things should only be accepted by "true" or "real" or "known" if doing so is supported by physical evidence.  The extremist, naïve views say nothing can be said to exist without direct physical observation and omits inference.  Of course, most of us believe things to exist based on inferences from evidence, and moment to moment much (if not all) of what we believe exists depends on our memories not immediate sensation.  Positivism, nonetheless, lies at the center of our ability to distinguish fact from myth, to say what is scientific law and theory and what merely a theory or story.

Lawyers (and others) these days are justifiably cautious about conflating "law" as formal societal rules with "law" as the term is used in science.  This was not always so.  A scientific "law" is usually understood as describing how nature works (a more sophisticated understanding is that it's a human expression of part of how the natural world works).  For those who believed (and some in the world still do) that  the only valid human law is "moral law" and that "moral law" is an intrinsic thing that pervades the Universe, "natural law" and "scientific law" are either synonymous or inexorably intertwined.

Indeed, scientific laws for most people are expressions of the "laws of nature" and thus follow one definition of "natural law."  To the extent that is accepted, there is nonetheless a real functional difference between "natural law" as a societal rule and "natural law" as a term used in science. "Scientific laws" are self enforcing; societal rules require humans to enforce them.  Gravity works whether one is familiar with Newton and Einstein or not.  Excommunication only works if some people want to excommunicate you and then take the steps to do it.

In other words, "natural laws" are not necessarily "laws" at all; they're inchoate and of no force until some enactment or adjudication "recognizes" them and uses them as a justification.  Since "natural law" (in the sense of societal rules) must be flushed through something we might call "positive law," we could say the only societal law is "positive law" if it were not for ambiguities in what "positive law" means.

The notion of "law" simply entailing "written law" -- and so, broadly, "positive law" -- is inviting, but it is incomplete.  Put to the side the fact that some of the dictates of a sovereign may never be written, and, likewise, but to the side that unwritten custom remains a source of law in some areas (particularly in international law).  More significant is the fact that all written law requires some interpretation; some inference.  These interpolations are often obvious -- so obvious we're oblivious of them -- nonetheless, they occur.

For example (and I apologize if this seems a bit prosaic), let's suppose we're driving on the highway between two cities 60 miles (100 kilometers) apart, and the speed limit is 60 miles  per hour (100 kph).  The traffic is heavy and, when we see a see a sign showing our destination is 30 miles away, we've already been travelling for 45 minutes.  Our speedometer happens to be broken, but we figure that if we drive under 120 mph (200 kph) for the next 15 minutes we won't break the speed limit because over the hour we will have traveled less than 60 mph (100 kph. Are the police and courts likely to accept this?  No, of course not.  One might say that the speed limit applies to instantaneous speed not speed over a duration of time.  Even that's not quite right because, while instantaneous speed may work in theory in calculus and physics, in the real word speedometers and radar guns must have a distance to measure over so the speed is not instantaneous. In fact, we infer rules: that speed limit is not measured over a long distance but some short distance, that it is measured in relation to the frame of reference of the ground (not in relation to the frame of reference of a police car speeding away), that the speed limit is an upper limit not a lower limit (though some statutes specify that!), and, usually, that de minimis errors in measurement will be ignored.

The assumptions that underlie statutes are often made explicit in other statutes if it happens they are recognized in advance. That lends some clarity, but, when obvious, they may be thought to be every bit as much of the law as the writing itself.  Indeed, the framing of statutes by legislatures is typically very inexact, dependent on the proclivities of the drafter, and contains many excess words while omitting key terms.

It is mistaken, though, to assume that all laws are capable of multiple different valid interpretations.  Some are so poorly drafted that multiple interpretations are possible because the language chosen is vague or ambiguous or critical terms are omitted or inoperative terms are included. The role of the courts in the U.S. in determining the law in legitimately disputed cases has largely become a task of determining the meaning of words and determining what terms are missing or unnecessarily included.

Indeed, while lawyers, in all their stripes, often assume the issue with interpretation is that multiple interpretations are possible (and the issue is justifying their favored interpretation), indeed, only one correct interpretation is possible if ambiguities and vagueness in the meaning of words is resolved and the selection of exactly the correct terms of a statute, excluding unnecessary ones and including necessary ones, is made. If only we had an independent body appointed to do that ... oh wait, we do, the courts.

Lawyers often approach the task of inference from a naive and clumsy perspective, one driven by historical precedent of not rigorously addressing inference (though they may think they are) and poor education in what to actually do.  There is an appropriate way to treat inference, however -- in fact an entire science rigorously developed to treat the subject -- and that is logic.  Logic -- formal logic -- is a subject that is terrifying to most lawyers as well as laymen. Logic should be a lawyer's stock in trade.

In other words, we need not believe that the interpretation of statutes must always be arbitrary.  Alas, we must also recognize, though, that constitutions, statutes, regulations, treaties, contracts, and cases were not written with formal logic in mind making its direct use to them, without translation, pointless unless those sources of law are refined.

So, we recognize these things: (1) that written law does not just consist of statutes and the like, but includes case law and sometimes other formal interpretative documents; (2) that the written form of the law is not a sufficient statement of the law since its terms can be uncertain, incomplete, and sometimes unnecessary to adequately state the law; (3) that inferences from written laws always can be made and often are made, if somewhat blindly; (4) that the inferences can be exact if the concerns in (2) are properly resolved; and (5) that societal laws unlike the laws of nature require some sort of human mediation to have effect.

Thus, as stated at the top of this post I'll use the phrase positive law to mean "law that derives from human expression" and I'll use the phrase natural law to mean "law that does not derive from human expression." I assume that rigorous logical justification of that would be jejune.

The more interesting question, buried here at the bottom, is why that should matter.  It matters for two reasons.

The first, the obvious one, is because defining these terms adequately is necessary for a later more rigorous legal theory, which is coming in this blog.

The second, the less obvious one, is because these terms relate to the nature of reality and our ability to interpret it and understand it. Specifically, when the premises or axioms of a system are sufficiently understood, then inferences can be made from those premises or axioms. Those inferences have a sort of meta reality, if well drawn, dependent on the reality of the premises or axioms.  In the sciences those premises and axioms, if you'll take those terms broadly, come from observation.  In law they are imposed by humans. But it is not so different. Indeed, the expression for the "premises and axioms" of the natural world comes from humans.

But what of math and logic? We know now that math and logic are not self proving; we require observation from the world to believe they work, and so far that's borne out. Their premises and axioms are also human statements. Our discussion of positive and natural law contradicts the platonic view of forms but nonetheless demonstrates (if informally) that in the artificial world of human laws a "reality" of inferences -- inferences that have all the force of law -- still may form from the premises of the written law once it is understood.

But this discussion is premature.