Positive Law

The term positive law refers to laws made by man that require some specific action. These are statutes, codes, and regulations that have been enacted by a legislature. By contrast, “natural law” refers to principles that are universal in society, governing moral acts. To explore this concept, consider the following positive law definition.

Definition of Positive Law

Noun

  1. Law enacted by a governmental authority

Origin

1350-1400       Middle English

What is Positive Law

In its strictest sense, positive law is law that is made by humans. Specifically, Black’s Law Dictionary defines positive law as “Law actually and specifically enacted or adopted by proper authority for the government of an organized jural society.” In a more complex sense, the term positive law refers to a legal philosophy of positivism.

Positive Law vs. Natural Law

When the Founding Fathers formed the new nation’s government, they held to their understanding of what the people did not want. In order to promote the personal freedom of each citizen of the United States, the government was designed around “natural law,” which are those God-given rights of every human being. This is where the Declaration of Independence and the U.S. Constitution work to ensure each person freedom from unwarranted arrest and imprisonment, searches without cause, the right to freedom of expression, and freedom of religion, among other rights.

Benjamin Franklin said of natural law:

“Freedom is not a gift bestowed upon us by other men, but a right that belongs to us by the laws of God and nature.”

By contrast, positive law are those created by lawmakers to govern various aspects of society. These laws cannot step on those natural rights held by each person. The Constitution was designed, not to grant rights – as those rights are understood to be inherent by birth – but to prevent the government from taking away those rights. In fact, Patrick Henry – a man considered to be a brilliant debater during the American Revolution – said of the Constitution:

“The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government — lest it come to dominate our lives and interests.”

Positive law is based on the idea of “majority rules,” and is not only enacted by men, but can be taken away by men as well. This type of law is based in the notion of social justice, which may create an manmade equality. Positive law is subordinate to natural law, which has its origins in human nature.

Example of Positive Law Challenge

During the 1984 Republican National Convention in Dallas, Texas, Gregory Johnson joined a group of protestors objecting to nuclear weapons. The protestors marched in the streets, knocked over potted plants and other outdoor decorations, and spray-painted walls of businesses. Johnson, who had traveled to Dallas from his home in Atlanta, Georgia for the protest, did not take part in the vandalization. Instead, he took an American flag from one of the building’s flag pole to Dallas City Hall, poured kerosene on it, and lit it on fire.

As the flag burned, Johnson changed such things as

  • “Reagan, Mondale which will it be? Either one means World War III”
  • “Ronald Reagan, killer of the hour, Perfect example of U.S. power.”
  • “Red, white and blue, we spit on you, you stand for plunder, you will go under.”

A lot of people were seriously offended – less by Johnson’s words than by the destruction of the flag. He was arrested and charged with a crime, as Texas had a statute making it illegal to desecrate a “venerated object,” including the American flag – if the action was likely to incite anger in others.

Johnson was convicted in a Texas court, but he appealed the conviction, arguing that his actions were covered under the First Amendment to the U.S. Constitution. He claimed that his burning of the flag was “symbolic speech,” and the appellate court upheld the trial court’s ruling. Another appeal saw the conviction overturned, and then the case made it to the U.S. Supreme Court.

The highest court in the nation was split on this issue of whether flag burning constitutes “symbolic speech” protected by the First Amendment. In a 5-4 split decision, the Court ultimately ruled that this form of expression is indeed protected by the Constitution, and the Texas law was unconstitutional.

In the Court’s written opinion, by Justice William J. Brennan Jr., the Court pointed out that

“The Government may not prohibit the verbal or nonverbal expression of an idea merely because society finds the idea offensive or disagreeable, even where our flag is involved.”

When this case was publicized, many Americans supported the Texas law, feeling that it should be illegal to desecrate the American flag. However, the Supreme Court, whose job it is to uphold the Constitution of the United States, has determined that this activity – even if it shocks and angers others – is protected as free speech.

In this example, positive law – that making it illegal to desecrate a venerable object – was in conflict with the natural law protected by our Constitution.

Positive Law in Modern Society

In modern times, both state and federal governments pass laws that take away some people’s liberties in the name of social justice, or the greater good. This system attempts to create social equality through force of law, which many feel flies in the face of the natural law upon which the nation was built.

Many philosophers point out that this is a flawed approach, for while all men are created equal, their individuality leads them to achieve differently. Taking away the rights of one person in order to create equality with those less fortunate creates class warfare, undercutting the freedoms and liberties of individuals. This creates dissention among the people, which has the power to destroy the society created by force of law.

These philosophers hold that the government, as designed by the Founding Fathers, requires separation of powers – divided between the Executive, Judicial, and Legislative branches of government – to limit the government’s size and power.

Positive Law Conflict with Constitutional Law

Conflicts over man-made laws in the U.S. most commonly involve positive law conflicts with constitutional law. These involve claims that certain laws violate people’s constitutional rights – which are based in natural law.

As an example of a positive law conflict with constitutional law, Vermont’s physician-assisted suicide law was challenged by two Christian groups in 2016. The plaintiffs – Christian Medical and Dental Associations, both based in Tennessee – asked the courts to essentially nullify the law on the basis that it violates First Amendment rights to freedom of speech, freedom of religion, and equal protection under the law.

Vermont’s law allows terminally ill patients to obtain a prescription from a doctor for a drug that will assist them in ending their lives. It does, however, require a complex procedure to ensure the patient does not have a mental health issue that would affect his ability to make such an important decision. The law also allows doctors who are uncomfortable prescribing a life-ending medication to refer such a patient to a doctor who is willing to do it.

The plaintiffs claim that doctors who do not want to assist in ending a patient’s life are required to give a referral, they are being forced to participate in physician-assisted suicide, thus violating their consciences.

The Vermont Attorney General asked the court to dismiss the case on the grounds that:

“Plaintiffs challenge requirements that do not exist (in Act 39), and object to practices they have no obligation to carry out.”

The court reviewed the law to determine whether or not it imposed a requirement for physicians who are uncomfortable prescribing a life-ending medication to refer the patient to another doctor. Simply put, it does not, and so the court dismissed the case.

In this example, positive law sought to give relief to terminally-ill people who desired to act in ending their lives on their own terms. Certain people felt that this positive law conflicted with constitutional law – or natural law – that allows all people to act according to their own conscience, and to uphold their religious beliefs.

Positive Law Example in Affordable Care Act

The Patient Protection and Affordable Care Act, better known as “Obamacare,” is an example of positive law, which sought to provide all Americans – regardless of their financial positions – with access to healthcare. Lawmakers involved in enacting the Affordable Care Act (“ACA”) felt that having a healthy citizenry would aid in creating a more stable economy, as they would be able to be better workers, and less of a drain on the system.

There were many provisions of the ACA that a lot of people felt trampled on their constitutional rights. The most controversial provision was the “individual mandate,” which required every American to have health insurance, and imposed a fine in the form of a tax for those who did not comply.

The ACA was signed into law by President Obama on March 23, 2010. Before long, 28 states had filed civil lawsuits, many of them banding together in the effort, calling for the courts to strike down the individual mandate. The states claimed that the ACA violated state sovereignty, which is a major provision of the Constitution. In addition, they claimed that the ACA put an “unfair financial burden” on state governments.

These lawsuits made their way through the federal court system, eventually being heard by the U.S. Supreme Court in 2012. The Court declared that the states’ primary argument, which was based on the regulatory power of Congress under the Commerce Clause of the Constitution, could not be upheld. However, the penalty for failing to have health insurance coverage was constitutional, and a valid exercise of Congress’ power to tax.

The Court did, however, limit the expansion of Medicaid, which required the states to provide free medical care to a larger number of low-income people. Following the Supreme Court’s ruling, the ACA remained in effect, with a few limits on Medicaid.

Related Legal Terms and Issues

  • Civil Lawsuit – A lawsuit brought about in court when one person claims to have suffered a loss due to the actions of another person.
  • Fine – Money ordered to be paid by a court of law, or other governmental authority, as punishment for a crime or other offence.
  • Legislation – A law, or body of laws, enacted by a government.
  • State Sovereignty – The power of a state to govern itself, including making and upholding laws, imposing taxes, and organizing a judicial system, among other things.

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