The American legal system is full of positive law, and I think that's an essential part
of the natural law tradition.
And in fact, in a way it's homage to the rational capacities of human beings, the rational capacities
of our framers and ratifiers.
So if you were James Madison and company in 1787, and you look over the United States,
you had the Articles of Confederation and it wasn't working very well.
You saw that, for example, it didn't have an interstate commerce power, and so you had
different states that were having trade disputes, and some of the trade disputes actually were
becoming real fights with actual battles between the different states.
You saw your national government that didn't have the power to tax, and so it was perpetually
lacking money.
There would be requisitions to the states, but then the states wouldn't give the national
government the requested money.
And so the national government wasn't able to do the basic things that national governments
were meant to do, like provide national defense or internal peace over trade.
And so James Madison and the other framers, they knew they needed to do something different.
They knew there needed to be a national government, it had to have some certain governmental structures,
but within those really broad bounds they had a lot of creativity, which they exercised
using their practical wisdom to craft our current constitution as a response to the
problems that they saw and the problems that they foresaw into the future.
So for example, our Constitution, in Article One, Section Eight, has the Commerce Clause.
The Commerce Clause was the creative non-natural law determined solution by our framers and
ratifiers to the problem of disputes over trade by the American states.
And so our Constitution itself is populated with positive laws.
Now, those positive laws are consistent with the natural law, but not required by the natural
law.
And so I think the positivity of the American legal system is, in fact, something that's
entailed by natural law tradition.
And there's a second way in which the positivity of the American legal system is a product
of the natural law tradition.
So when you look at the text of the Constitution, I mentioned the Commerce Clause earlier, the
Commerce Clause has very few words.
Congress has the power to regulate commerce among the several states, and that gives some
information.
But if you think about how should a legal system instruct governmental officers, both
federal and state, instruct citizens over, at that point, you had 13 states, and then
today, of course, we have 50 states spanning the continent with 320 plus million people.
That those few words by themselves are not going to be sufficient to give guidance to
officers and American citizens about how to maintain trade peace among each other.
And so I think, wisely, our system of government, using Article Three, using the judicial power,
requires federal judges to adjudicate cases and create precedent.
So precedent, in fact, in our system, is a form of positive law.
It's one that is, I think, an essential mechanism in our legal system, because what it does
is it elucidates, it implements the meaning of the Commerce Clause over a period of centuries
in a series of cases, and kind of builds out the meaning of the Commerce Clause.
And so that positive law, the US reports, it dwarfs in size the size of the US Constitution,
and that positive law is massive, but it, too, is, I think, an implementation.
It's consistent with the natural law tradition, it's consistent with the natural law, but
not required because there's creativity in how the Supreme Court justices implement and
cash out the meaning of the Commerce Clause.
So I think the American legal system is full of positive law, but that, in fact, is an
entailment of the natural law tradition, which says that the natural law itself doesn't fully
determine how humans should live, either themselves individually or in a community, and that instead
the natural law says, "Humans, in your creativity, in light of your circumstances, design yourself
how you're going to live together in a healthy and happy community."
Our Constitution's text, original meaning, and precedent are the key ways that our system
does that.