Legal Positivism vs. Natural Law – Why It is Important to Understand "Positive Law" vs. "Natural Law" at this Point in American History

(I wrote this article in March 2020. Recent national political events and those anticipated to occur during the next four years makes the message of this article more relevant than ever.)

Why is it important to understand what legal positivism is? Alternatively, why is the difference between legal positivism and natural law important to know? Knowing what legal positivism is and how it differs from natural law is fundamental to understanding the basis on which governments are founded and governed.

To understand the importance of natural law is to begin to understand legal positivism, because one cannot understand one without understanding the other.

Martin Luther King's “Letter from Birmingham Jail” is one of the natural-law classics of our time. If you have not read the letter, I highly suggest that you do so. From a natural-law perspective, one of the more noteworthy aspects of King’s “Letter” is his reference to St. Thomas Aquinas:

How does one determine whether a law is just or unjust? A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law.

To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law.

Any law that uplifts human personality is just. Any law that degrades human personality is unjust.

All segregation statutes are unjust because segregation distorts the soul and damages the personality. It gives the segregator a false sense of superiority and the segregated a false sense of inferiority. Segregation, to use the terminology of the Jewish philosopher Martin Buber, substitutes an "I-it" relationship for an "I-thou" relationship and ends up relegating persons to the status of things.

Hence segregation is not only politically, economically and sociologically unsound, it is morally wrong and awful. Paul Tillich said that sin is separation. Is not segregation an existential expression 'of man's tragic separation, his awful estrangement, his terrible sinfulness? Thus it is that I can urge men to obey the 1954 decision of the Supreme Court, for it is morally right; and I can urge them to disobey segregation ordinances, for they are morally wrong.

The Connection between Law and Morality

Legal positivists draw a bright line between the law and morality, citing that which actually exists (as determined by society and/or a state) as law as “is” versus law as it “ought to be,” what is morally right (natural law). To various degrees, legal positivists consider law as necessary to protect man from himself and others (“Our instincts are at war,” per C.S. Lewis).

Lon Fuller, in his reply to the renowned legal positivist, H.L.A. Hart, titled, Positivism and Fidelity to Law: A Reply to Professor Hart, states, “We naturally seek order, but that order in itself does us no good, unless it is good for something.” Fuller believed that justice is impossible without order. Moreover, law is necessary to establish order, and that legal morality cannot live “…without striving toward justice and decency.”

As Jesus Christ believed (Psalms 33:5 “the Lord loves social justice); so did St. Thomas Aquinas (a government that abuses its authority by enacting laws that are unjust or against the common good forfeits its right to be obeyed); so did John Locke (our natural right to freedom and to life, health, and liberty); and, as Martin Luther King so strongly believed (An unjust law is a code that is out of harmony with the moral law).

The Role of Legal Positivism in the Rise of Dictatorships

So where can we look for a clear example of legal positivism? Nazi Germany. Although debated as to the extent to which legal positivism contributed to Hitler’s rise to power and the establishment of a dictatorship, it is accepted that legal positivism did play a role. Steadily, Hitler built his base of power with fear, the creation of enemies of the beloved country (defense of national security), and laws justified by the need to establish a common order and eliminate opposition.

Through means such as administrative laws applied as criminal laws, secret laws, disobeying standing laws, and retroactive laws, Hitler rose in power unchecked by those who feared his power and wrath. Eventually, Hitler described himself as the “the supreme court of the German people.”

German courts did not look to the law; they looked to what Hitler expected. Eventually, Germany disregarded its long-standing laws and followed the verbal orders of Hitler. In this regard, positivist law did what it is supposed to do, divorce itself from morality and decency. Consequently, what was a “just” law was what Hitler said was just. This included his order that prisoners in concentration camps be put to death.

In 1934, at the direction of Hitler, legislation was enacted that made it a crime punishable by death to make “spiteful or provocative statements against…leading personalities of the nation…and to undermine the people’s confidence in their political leadership…” Thus, Hitler’s reign as a dictator was etched in law and no one could challenge it without being punished.

The path toward dictatorship has been repeated since Hitler. The “road map” toward the monstrosity of a dictatorship is not a secret. However, there are early signals that should be watched for, to include a rising debate between legal positivism and natural law and ignoring established rule of law.

In summary, even though legal positivism and natural law may sound as being too scholarly and unrelated to daily life, nothing can be further from the truth. All one needs to do is study the history of Nazi Germany and how people became oblivious to facts and morality far too easily.

There will be those that will commit to following Positive Law, while others will commit to following Natural Law. It is important to remember, that the authority and force of the state rests with Positive Law. Martin Luther King committed himself to following Natural Law and thus became the victim of the force of Positive Law.