[Einherjar]

Is the difference between positive and natural law still valid to modern systems? If we assume that the state is public and strives for common good, can we still make a distinction between the "rule of law" and the "common good"?

[Kim]

It depends on the motives of the lawmakers. If they are making the law to keep themselves in power, then it is not normally for the common good. Yet it is still rule of law.

However, if the lawmakers honestly want to implement "common good," then the laws will be drawn accordingly. Therefore it is both "rule of law" and "common good."

[Clausewitz]

Is the difference between positive and natural law still valid to modern systems? If we assume that the state is public and strives for common good, can we still make a distinction between the "rule of law" and the "common good"?

Natural law (to me) has always had a really antique ring of "divine commandments." There are just laws and there are unjust laws but I don't think there are well-specified, independent natural laws sitting out there in some way.

But I do think that simply because the state posits laws it does not mean that those laws erase the existence of justice. Even if a state strives for the common good, it can be wrong in details, so I don't see a reason to attach the majesty of natural law to positive law as a matter of course; the law is the law and justice is justice, and there are more just laws and less just laws.

If we do not make a distinction between the "rule of law" and the "common good," we basically erase the critical ability of reason with respect to law; there's no longer any way to approach it judgementally. Because that equation abdicates the role of judgment, I do not see much use in even attempting to erase the distinction between law and justice; if I were to be presented with a set of laws that happened to be perfect, I don't know what amount of study could be made to understand those laws as definitively perfect, particularly since once that point was reached, I would have eliminated by ability to critique those laws. That strikes me as inhuman.

[Der Freiheitsucher]

I think you will find that the opposition of "positivism", in law, is iusnaturalism and not really "natural law", for natural law is only an element of iusnaturalism.

Regardless, the difference between those two is not only valid but essential to modern systems, especially those that have judicial control inside the judicial branch. The administration of law has everything to do with how the law is exercised.

[Goranhammer]

I tend to agree that "positive law" almost comes across as "divine mandate" when I read it. There's just something about it. Which, in that case, I don't essentially agree with.

Actually on this subject I'm "a little of column A, little of column B".

[Einherjar]

It depends on the motives of the lawmakers. If they are making the law to keep themselves in power, then it is not normally for the common good. Yet it is still rule of law.

I am assuming that the lawmakers are put to position by and hence represent a majority of an electorate.

Natural law (to me) has always had a really antique ring of "divine commandments." There are just laws and there are unjust laws but I don't think there are well-specified, independent natural laws sitting out there in some way.

I also agree with you. One could argue, for example, that the ten comandments were initially positive laws which were gradually imprinted in the moral roots of a people, thus becoming "natural".

But I do think that simply because the state posits laws it does not mean that those laws erase the existence of justice. Even if a state strives for the common good, it can be wrong in details, so I don't see a reason to attach the majesty of natural law to positive law as a matter of course; the law is the law and justice is justice, and there are more just laws and less just laws.

I do not grasp the concept of "justice" as seperate from law. That would require the belief in another - divine, natural or whatever - entity which sets orders.

If we do not make a distinction between the "rule of law" and the "common good," we basically erase the critical ability of reason with respect to law; there's no longer any way to approach it judgementally. Because that equation abdicates the role of judgment, I do not see much use in even attempting to erase the distinction between law and justice; if I were to be presented with a set of laws that happened to be perfect, I don't know what amount of study could be made to understand those laws as definitively perfect, particularly since once that point was reached, I would have eliminated by ability to critique those laws. That strikes me as inhuman.

...judging laws as perfect or imperfect, that already requires some standard of measurement; a moral, religious definition of justice for example.

A suitable, modern example would be the human rights, which are said to be "inalienable". According to me, these rights are or were originally positive - they were institutionally formulated at some point in time. However, today, they seem to be natural to the point that they must be observed by states having their own distinct rules of law.

[Clausewitz]

I also agree with you. One could argue, for example, that the ten comandments were initially positive laws which were gradually imprinted in the moral roots of a people, thus becoming "natural".

That's not the meaning of natural law that I'm familiar with. Natural law, such as I know it, is anything but a social construct or something ancient; it's an indubitable, eternal truth, not physical but ethical.

That is, the Ten Commandments are natural law because God asserted them, having nothing to do with how the Israelites reacted.

I do not grasp the concept of "justice" as seperate from law. That would require the belief in another - divine, natural or whatever - entity which sets orders.

The thing is; when I analyze law I do so using reason, or at least I try to. Justice (as I mean it) is an ideal sourced in philosophy, not applied jurisprudence. The truths that ought to be applied into law - the "natural" sources of just laws - are not themselves posited arbitrarily but fall out from rational analysis of metaphysics, epistemology. I think this position is held by the bulk of Western rational ethicists; Plato, Kant, Rawls...

Though somehow I think we are using different definitions of natural law. In the broadest sense, I believe in natural law, that reason can know justice, and that reason can recognize justice independent of positive law. I do not see your reasoning.

...judging laws as perfect or imperfect, that already requires some standard of measurement; a moral, religious definition of justice for example.

A suitable, modern example would be the human rights, which are said to be "inalienable". According to me, these rights are or were originally positive - they were institutionally formulated at some point in time. However, today, they seem to be natural to the point that they must be observed by states having their own distinct rules of law.

Let me needlessly complicate our glossary and call what you are calling natural law "normative law."

Normative law is important to me not because it constitutes justice, which is independent, but because it has special political strength behind it. I agree that human rights were positive and local but now are globalized because they have special political force behind them; large coalitions of states and peoples can be arranged for their defense and, quite often, imposition on rogues.

But I do not believe that because any number of billions of people believe something that that should become justice. Normative law has special power but it isn't the summum bonum, as we might say.

[Einherjar]

That's not the meaning of natural law that I'm familiar with. Natural law, such as I know it, is anything but a social construct or something ancient; it's an indubitable, eternal truth, not physical but ethical.

That is, the Ten Commandments are natural law because God asserted them, having nothing to do with how the Israelites reacted.

They are natural laws - only if you believe that God asserted them. Using reason, one is unable to concieve that a divine entity gave laws to a people. Does not this contradict what you will say in the next paragraph - that reason - as opposed to lack of reason - can know justice?

Though somehow I think we are using different definitions of natural law. In the broadest sense, I believe in natural law, that reason can know justice, and that reason can recognize justice independent of positive law. I do not see your reasoning.

If members of a ruling class formulate [positive] laws to preserve power; they are also using reason. Therefore can I say that the distinction between positive and natural law solely rests upon the aims of the lawmakers?

I agree perfectly with your last paragraph.

[Clausewitz]

They are natural laws - only if you believe that God asserted them. Using reason, one is unable to concieve that a divine entity gave laws to a people. Does not this contradict what you will say in the next paragraph - that reason - as opposed to lack of reason - can know justice?

I think Spinoza said this; we know the will of God because reason, provided to us by God, determines the consequence. Reason could have been another way, and determine other results, but for the grace of God.

So...just as it is God's will that 1+1=2, it is God's will that murder is wrong, as both fall out of the reason God invented. This part I think was Aquinas's.

But they can be natural laws also if God did not assert them; you only have to believe in the validity of reason. Thus why this understanding of inherent justice is so strong; you can take God out of it, and if you think reason determines truth, then what reason has creates the same natural law that a thiest of Spinoza's following would see.

If members of a ruling class formulate [positive] laws to preserve power; they are also using reason.

But they would be wrong. Reason is not limited to the pursuit of one's own welfare but implies justice toward others.

Therefore can I say that the distinction between positive and natural law solely rests upon the aims of the lawmakers?

I think so. But then I go back to my previous statement; I do not think I could ever be prepared to say "This law is as good as natural law," because it essentially surrenders my ability to further critique the law. But the quality of the law is based on the aims (and the excellence) of the lawmakers.