Positive law is a term used to describe statutory man-made laws that oblige or specify an action for an individual or a group. Roe v. Wade, for instance, is based on positive law.
Natural law, on the other hand, is based on inherent rights conferred not by an act of legislation but by God, nature, or reason. When we do the right thing, we obey natural law.
Now that we’ve described these two types of law, we’ll get to the meat of our discussion—why a case coming before the Supreme Court in 2016 in Texas, Whole Women Health v. Cole, matters. Put aside certain requirements that must be met as to cleanliness of the facility and competency of the abortion doctors to consider this side of the argument: the defendants claim that if the abortion center is shut down, women seeking an abortion will have to travel over 235 miles to get one! Not a particularly long drive for a Texan, but will the courts rule it as an “undue burden” and thus rule against the pro-life plaintiffs?
Socrates put the question: What if a friend, whom you knew to be deranged, asked you the whereabouts of a weapon? Would a lie, in this case, be wrong? Socrates alerts us that in natural law, we don’t always have a hand on real moral principle. Natural law must be discovered by humans through the use of reason and choosing good over evil.
The Supreme Court judges, practicing positive law, can do what the lower courts did—argue whether 150 miles is a more relevant travel distance. Can any distance in miles be “more relevant” in order to destroy a life? Our courts rule on man-made laws that speak to actions and groups, and completely ignore the ethical considerations of natural law: the victims—this baby, it’s mother and father, the family who will never share this child’s love and joy, the world who will never benefit from a life who could well grow up to be another Socrates, Plato, or Aristotle. There seems to be nothing positive about the term “positive law” in this case.