Natural vs Positive Law: Culture Wars A Tale of Two Ideologies
Susan Marie Kovalinsky | August 23, 2009 at 06:27 amby
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The conservative blog, "Renew America" sets the distinction thus:
[q url=""]Natural law was generally assumed to be the proper basis of legislative law in the 19th century. It was "the law above the law." It has been seriously challenged and almost eclipsed by a rival theory of law in the 20th century — namely, "positive law" or "legal realism," which simply means that man makes up his own law. Instead of consulting universal principles, man consults his own needs, wants, and agendas, or the changing norms of the society in which he lives.
Positive law advocates fancy that they are realistic about the contemporary world, but they are not. They are blown about by popular fads — and therefore are uniquely out of touch with the world.
One might suppose that ideological, agenda-driven politics — like that of President Obama's administration — would have a certain stability and continuity in policy matters. Yet no administration has ever been blown about by changing winds like this one. In contrast, natural law is immune to fads and changing winds, yet provides a stable vantage point from which to view the contemporary scene.[/q]
From the tone of the above, one might be led to believe that positive law is the haven for idiots and trend followers. Not so: It has its roots in pragmatism, advocated by the great American psychologist anf theorist William James. Obama has long been proud of his pragmatic approach: As a student of philosophy and law, and as an Illinois Senator. Says Hutchinson of Renew America in his issues analysis and critique:
[q url=""]A judge is first corrupted by positive law and then lawlessly defies precedent and steps beyond constitutional boundaries.[[/q]
Of course there is a certain truth in this: Pragmatism is not essentialism; it does not look to transcendent and overarching laws to make its case, but looks around at the empirical facts and the actual situation, and asks, "What will work here?". Take the case of gay marriage and adoption: You can immediately understand the divide between those who insist that marriage and family are based on the transcendent ideal of "one man, one woman, and their biological offspring"; while liberal ask why gays may not contribute to marriage and family. The conservative Pat Buchanan has said that the culture wars in America will only grown worse with time, for we are arguing from "essentially and diametrically opposing viewpoints". I would agree. However: when someone like the Reverend Rick Warren claims that the culture wars can only be healed by "seeking God's truth", he is only stating that natural law must win, and positive law must be trashed. Hardly a healing prescription for our nation. The New Republic in January hailed Obama's inauguration as a way to solve the culture wars: By drawing conservatives to the center. This has largely failed, most likely due to the determination of Rush Limbaugh et al. I think the best starting point, the only real ground of resolution, begins with what William Saletan, OpEd contributor for the New York Times, said earlier this year when he was pondering the solution to gay marriage:
[q url=""]PRESIDENT OBAMA wants to end the culture wars. He recently called for “common ground” on abortion reduction and an end to the “stale and fruitless debate” over family planning. His joint address to Congress this week could be an opportunity to change that debate. But to make a real difference, he’ll have to tell two truths that the left and the right don’t want to hear: that morality has to be practical, and that practicality requires morals.[/q]
Certainly, this is the most succinct phrasing and framing of the debate.