ORLAPUBS P. R38: WHAT ARE NATURAL LAW & POSITIVE LAW?

     An illustration will most easily clarify what natural law and positive (legislated) law are, and how they differ. It lies in the nature of being that two vehicles moving in opposite directions cannot proceed on the same side of the road at the same time. That's a natural law or, if you will, a principle of nature. Note that "nature" is not being used here to denote "Mother Nature," what exists "in nature," what "nature-lovers" love, what prevails statistically (that is what is "normal"; like sin, what is normal can be unnatural!), etc. In philosophy, nature is basically an ontological concept--viz. the function of an essence [CLICK HERE FOR MORE]; "natural" in natural law is rather different from "natural" in natural science. Like Greek (h)ypostasis, the Greek term for "nature," phýsis, has had a very checkered and unstable history; Latin substantia is modeled on Greek (h)ypostasis, but it used for Greek ousia. Orthodoxy holds phýsis in 2 Pet. l:4 to refer not to ousia but to the uncreated Energies (functions of Essence) of God.
    The Orthodox Fathers acknowledged natural law, which has got to do with being.   Positive law is a matter of some authority's will. The Ten Commandments are a good example. It is believed that a positive law or commandment conflicting with natural law is invalid or "unlawful." At least, that is what traditionalists, who place being before will, contend; but since descendents of late Mediæval "modernism"--especially Denominationists--commonly place will ahead of being, they take a different view, generally rejecting the idea of natures (e.g. human nature) and natural law.
     One mustn't think that natural law can do more than it can. (Silly appeals to natural law have been made by those who have only the vaguest idea of what it is.) Preserving life is natural--but whose life in an instance in which the life of a baby or the life of the mother has got to be sacrificed to preserve the life of the other? Does the living woman, with all that depends on her being alive, have priority; or does the future of the race--which can be in doubt when a child lacks a mother--have priority? The implantation of organs from another person, cloning and genetic alteration of humans, capital punishment, abortion, many aspects of sexual conduct are issues that have, legitimately and ignorantly, invoked natural law. It's time that natural law should be recognized for what it is and is not.

It is worth adding that, since the late Mediaeval Nominalists (and that includes the Protestant Reformers) rejected transindividual natures, they also rejected natural law. That left them with positive laws--from the Ten Commandments to their own regulations.

Nature and natural have two senses, neither of which refers to anything that exists (with or without a high statistical frequency) in the created economy or to "mother nature" or "a state of nature." The usual sense is "that which promotes the realization of a thing's true nature." Counternatural is the opposite. However, human nature has two components: (i) the essence of nature is the Icon (Image) of God, with that reason and freewill without which humanity would be like animal nature--this is a potential--; and (ii) the connatural uncreated Energies of Grace, i.e. the Cognation with or Assimilation to God (falsely rendered "Likeness" by Western translators) that actualizes the foregoing potential to realize humanity's ability to serve God. Item (i) was not lost at the Fall, but remains impotent without (ii) the Energies of Grace. As the latter are certainly connatural to humanity, natural humanity is often equivalent to having the Energies. Hence, it is not contradictory to say that humanity outside of the Body of Christ is "unnatural" since the Fall. Natural law promotes (i), not (ii)--though natural law is anything but contrary to (ii), since natural knowledge can convince an unbeliever that God exists and that Christ could well be humanity's Savior.

When you read of a conflict between natural law and God's law-- something that cannot be--substitute for "natural law" another concept like "whatever is normal according to current science." See above on "nature."

Is death "natural"? Death is not natural in the sense that it is a part of nature--the Icon of God without the Assimilation to God or Cognation with God. Death has an intermediate place between naturalness and counternaturalness. Since it works against nature, death is what one might call abnatural. Death did not exist before the Fall, but has been an sort of inherited bad gene since the Fall, when the Grace of the Assimilation to or Cognation with God was lost. This loss means that human nature itself has not been natural since the Fall. Neither death (not natural before or after the Fall) nor immortality (which before the Fall was attached to mortal human nature) is natural--i.e. in accord with our pure nature. It is clear that death falls into a certain tertium quid category here.

Just as the Assimilation to God is wedded to the the Icon of God in those who are in Christ, so immortality is wedded to nature (while not being "of" nature) in those who are in Christ--so immortality cannot, as noted earlier, be called counternatural. When St. John of Damaskos, in his Dialogue against the Manicheans (§71), speaks of the Fall as going from being above or beyond natural to simply being "in accord with nature," he cannot mean that death promotes human nature (the usual sense of "natural")--since death snuffs out life and the natural functions of body and mind and spirit. His sense is that death is the plight of human nature deprived of the Grace or Energy of the Assimilation to God--i.e. in accord with fallen nature.

We also need to characterize supernatural. For the Orthodox, it is about the same as uncreated and divine. But the Latins speak of ill-defined supernatural-created Grace. When Jesus's risen body passed through closed doors, we can best speak of it as a preternatural created body.

RELIGIOUS FREEDOM

The state is not an instrument for enforcing religion, which is a matter of free consent, if it is to have an moral worth. Civil law permits many things that a sincere Christian, Jew, Muslim, Hindu, Jain, Sikh, Parsee, Daoist, or Shintoist would not do. The state has no call for give preferential treatment to one religion at the expense of others--even if Muslims think otherwise--to their own disadvantage in a non-Muslim nation. Actions to write into law prohibitions peculiar to a given religions are wrong in themselves and bound to fail when they require obedience to a given rule which they don't believe in and which they can hardly fulfill very well without being committed to the Faith from which it stems. And there would be no point in requiring others to adopt another's religion; religion has got to free if commitment to it is to have its religious significance. We should no more try to impose our rules on others than stand by and let them impose their rules rules on the civil society we are part of; that is the Golden Rule. If a religion cannot get its own members to obey its rules, that is no concern of the state. The state should not give atheists an advantage over religious peoples; public schools are not there to promote atheism any more than the job is to promote some state or majority Faith. But the search for scientific truth can be promoted as such without either denying God's existence or favoring a given view of God. If a religion wishes to add courses outside of school hours, it should do so on its own premises; and credit for such courses should not be given for fulfilling school requirements unless it can be shown that a course is for learning a language or, say, Byzantine history, and is taught with adequate objectivity according to academic standards matching those imposed by the school on its own courses. A language course should not be refused credit simply because its reading materials are religious or peculiar to a given religion, provided the language is learned to the proper level of competence.