I did not learn about one of the most important fundamentals of law until after approximately 14 years of rigorous study; my primary focuses being the enforcement of civil rights (including color of law crimes) and pro se litigation. This fundamental lesson can be summed up as “the difference between positive law and natural law” – something anyone studying even the basics of law should know.
The findings came to me while trying to find help for this lawsuit I filed from legal professionals who all essentially told me the same thing: “Yes, it sounds like you were discriminated against, but unfortunately the Iowa Civil Rights Act only protects against discrimination in certain areas, such as housing and employment. You were a volunteer who was working there as part of an agreement, so you aren’t protected against discrimination. Instead of focusing on winning the case, maybe switch gears and focus on changing the law.”
But there was one fact I couldn’t shake: back in 1868 when Alexander Clark won his landmark desegregation caseClark v. Bd. of Sch. Dirs., 24 Iowa 266, 277 (1868), there were no statutes or case law to draw upon within Clark’s legal filings – the Iowa Civil Rights Act wasn’t passed until 1965, and the case was unprecedented. Clark, leaning heavily upon the Equality Clause of the Iowa Constitution, convinced the Court that discrimination against persons of of color was unconstitutional. Before explaining the difference between positive law and natural law, I highly recommend the following documentary about this amazing “forgotten” civil rights hero, Alexander Clark, who won a landmark case to desegregate schools in the State of Iowa 86 years before the renown 1954 Brown v. Board of Education SCOTUS ruling:
The Courts Do Not Merely Recognize ‘Positive Law’;
They Recognize ‘Natural Law’
Notably within the Iowa Supreme Court’s opinion, Justice Cole stated, “The board cannot, in their discretion, or otherwise, deny a youth admission to any particular school because of his or her nationality, religion, color, clothing or the like.” This is crucial because the Iowa Civil Rights Act only (explicitly) protects persons against discrimination based upon a person’s color, creed, gender identity, marital status, mental disability, national origin, physical disability, race, religion, and sexual orientation. Characteristics the Court recognized as protected, such as nationality or clothing, are not mentioned in the Act. This brings us to the difference between positive law, or that is written into statutes, and natural law, or that which is implied by that which is written. I am not an attorney nor do I practice law, however, as a student of law and as one Citizen to another, I would give the following advice: do not be dissuaded from justice just because something is not written into the positive law. Rather, be judicious and work toward justice accordingly.
“A judge is tethered to the positive law but should not be shackled to it.” – Patrick Devlin [1]
Definitions and Associated Writings:
positive law:
(14c) A system of law promulgated and implemented within a particular political community by political superiors, as distinct from moral law or law existing in an ideal community or in some nonpolitical community. Positive law typically consists of enacted law — the codes, statutes, and regulations that are applied and enforced in the courts, The term derives from the . medieval use of positum (Latin “established”), so that the phrase positive law literally means law established by human authority. – Also termed jus positivum; made law. [2]
The rules of conduct established by tacit acquiescence or by the legislature, and which derive their force and authority from such acquiescence or enactment, and not because they are the dictates of natural justice, and as such, of universal obligation. Commonwealth v Aves, 35 Mass (18 Pick) 193, 212. [3]
natural law:
(15c) A philosophical system of legal and moral principles purportedly deriving from a universalized conception of human nature or divine justice rather than from legislative or judicial action; moral law embodied in principles of right and wrong <many ethical teachings are based on natural law>. — Also termed normative jurisprudence: jure naturae. [2]
An abstract concept of law in accord is in with the nature of man. A rule which so necessarily agrees with the nature and state of man that, without observing its maxims, the peace and happiness of society can never be preserved. Borden v State, 11 Ark 519. Those fit and just rules of conduct which the Creator has prescribed to man, as a dependent and social being; and which are to be ascertained from the deductions of right reason, though they may be more precisely known, and more explicitly declared by divine revelation. Wightman y v Wightman (NY) 4 Johns Ch 343, 348. [3]
“Natural law, as it is revived today, seeks to organize the ideal element in law, to furnish a critique of old received ideals and give a basis for formulating new ones, and to yield a reasoned canon of values and a technique of applying it. I should prefer to call it philosophical jurisprudence. But one can well sympathize with those who would salvage the good will of the old name as an asset of the science of law.” [4]
“It is true that when medieval writers spoke of natural law as being discoverable by reason, they meant that the best human reasoning could discover it, and not, of course, that the results to which any and every individual’s reasoning led him was natural law. The foolish criticism of Jeremy Bentham: ‘a great multitude of people are continually talking of the law of nature; and then they go on giving you their sentiments about what is right and what is wrong; and these sentiments, you are to understand, are so many chapters and sections of the law of nature,’ merely showed a contempt for a great conception which Bentham had not taken the trouble to understand.” [5]
“[N]atural law is often an idealization of the opposite to that which prevails. Where inequality or privilege exists, natural law demands its abolition.” [6]
“As for the term ‘law,’ as understood in the phrase ‘natural law,’ it does not connote that the relevant principles and norms have their directive force precisely as the commands, imperatives, or dictates of a superior will. Even those natural law theorists who argue (as most do) that the most ultimate explanation of those principles and norms (as of all other realities) is a transcendent, creative, divine source of existence, meaning, and value, will also argue that the principles and norms are inherently fitting and obligatory (not fitting or obligatory because commanded), or that the source of their obligation is rather divine wisdom than divine will. Instead, the term ‘law’ in the phrase ‘natural law’ refers to standards of right choosing, standards which are normative (that is, rationally directive and ‘obligatory’) because they are true and choosing otherwise than in accordance with them is unreasonable. And the term ‘natural’ (and related uses of ‘by nature,’ ‘in accordance with nature,’ and ‘of nature’) in this context signifies any one or more of the following:
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(a) that the relevant standards (principles and norms) are not ‘positive,’ that is, are directive prior to any positing by individual decision or group choice or convention;
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(b) that the relevant standards are ‘higher’ than positive laws, conventions, arid practices, that is, provide the premises for critical evaluation and endorsement or justified rejection of or disobedience to such laws, conventions, or practices;
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(c) that the relevant standards conform to the most demanding requirements of critical reason and are objective, in the sense that a person who fails to accept them as standards for judgment is in error;
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(d) that adherence to the relevant standards tends systematically to promote human flourishing, the fulfillment of human individuals and communities.” [7]
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natural right:
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A right which exists regardless of municipal or other law, if not repealed by legal fiat. Sult v Gilbert, 148 Fla 31, 3 So 2d 729.
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A right inherent in land, such as that of lateral support, of the right to the benefit of the flow of a stream of water, of the right of an owner of land to have the surface water discharged upon the lower land of his neighbor, etc. 25 Am J2d Ease § 6.
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An inherent political right, founded on a common necessity and interest, such as the right to appropriate the property of a person to the great necessity of the whole community. 26 Am J2d Em D § 1.
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A right which, in its primary and strictest sense, belongs to each person as a human being in a state of nature. Re Morgan, 26 Colo 415, 58 P 1071;Bednarik v Bednarik, 18 NJ Misc 633, 16 A2d 80.
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The right of self defense, a right which existed before the formation of society. 26 Am J1st Homi § 126.
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A fundamental right actually guaranteed by the constitution. 16 Am J2d Const L § 330.
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A right entitled to constitutional protection in addition to rights protected under the specific guaranty safeguarding a person in his life, liberty, or pursuit of happiness; for example the affection between parent and child, Lacher v Venus, 177 Wis 558, 188 NW 613, 24 ALR 403; for another example, the right to beget children. 16 Am J2d Const L § 330.
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According to some authority, a concept in the abstract, apart from constitutional rights. Henry v Cherry, 30 RI 13, 73 A 97. [3]
