The Relation between Positive and Natural Law in Aquinas

Abstract

The dynamic relation between natural law, the theory of an objective moral order (or unwritten norms for human actions), and positive law, the legislation or statutes of a political community has become more prominent again. This article will explore the theory of Aquinas on the relationship between natural and positive law, which is still of great importance in the discussion. In particular, I will show how Aquinas' distinction between derivation and determination of positive from natural law resolves some of the conflicts between positive and natural law created by later scholastic distortions.A systematic exposition of Thomistic natural law is particularly daunting, given the current controversies in interpretation, distortions which have arisen since the Middle Ages, and the many good theological critiques of the natural law tradition. Although I do not think that Aquinas' approach contains any fundamental flaw which renders the project inherently incoherent, I want to approach the topic from the side of positive law and thereby indirectly contribute to the rehabilitation of natural law theory. As I explain the purpose and scope of positive law as Aquinas describes it, some of the lines of a correct account may emerge. Beyond the historical and exegetical scholarship, this article will propose a framework which may be applied to some contemporary issues to test the implications of the Thomistic view of law.