What does "positive law" mean?

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"Positive", in a bare semantic sense, means "posited; asserted". The label "positive law" (iuris positivi) only goes back to the 12th century. Thomas Aquinas used the term to distinguish "natural law" (which, on his view, is universal) from every particular, "posited" expression of human law (which laws were not necessarily universal). Scripture does not distinguish "moral law" (or "natural law") from "positive law".

Aquinas taught that the Old Testament judicial laws had been "annulled" by Christ in the New Covenant.[1] In Aquinas' tripartite categorization of God's law, the Biblical civil penalties[2] were not themselves "moral".

However, there is a categorical difference between a law "posited" by a mere human authority, and one "posited" by YHWH. Certain facts evident from scripture (see below) suggest that YHWH's judicial laws are intended to posit transcendent principles of justice; principles which should be followed by all mankind. Given these facts, it is at least an open question whether any particular judicial law "posited" (i.e. commanded) by YHWH was intended to reflect his will concerning transcendent justice for humans in general.

Therefore, to adopt Aquinas' usage of "positive", and assert that the judicial laws given by YHWH are "positive" (with the intended meaning: not inherently "moral"/"natural"[3]) is begging the question with respect to whether these laws are still binding in the New Covenant era.

The positing of "positive"

First, let's examine a modern use of this modifier "positive" in the context of law/precepts:

Moral precepts, which just is natural law, are nothing more than a revelation of the unchanging moral character of God applied to creaturely living. Positive precepts are those things commanded beyond mere moral law, and they sit upon moral law much like a superstructure sits upon a foundation. But positive commandments come through covenant and are, therefore, subject to the purpose of the covenant, e.g. for a specific people, place, time, etc. The Mosaic Covenant included countless positive precepts which went beyond the unchanging moral law of God. Included in those positive precepts were the ceremonial and civil laws, which often intertwined with one another, as DeMar himself notes in his article. But these laws are expressly annulled by the New Testament.[4] [Bold text added]

In the above statement, Josh Sommer is applying the label "positive" to every law which goes "beyond mere moral law". Where does this use of the term "positive" come from?

The term "positive law" (iuris positivi) was first used amongst medieval scholars of the 12th century.[5] As you might expect, later Christians were influenced greatly in the use of this term by Thomas Aquinas. Aquinas used the term to distinguish between "natural law" (ius naturale), which was transcendent, and laws created by men[6], which were somehow derivative of natural law. John Finnis explains:

Natural law precepts prohibit things evil in themselves, positive law precepts either prohibit things which can occasion evils, or require things which contribute to enhancing the good dispositions which the law-maker (legis positor) intends. ... [B]y 1256 Aquinas is an enthusiastic exponent of the bipartite classification of law: natural or positive. Positive law (when just) is always somehow derived from the basic moral principles he calls natural law.[7]

Aquinas' reasoning here is not based upon any such bipartite division in scripture, however. Scripture does not identify certain commands as "positive" and others as "moral". Rather, Aquinas was applying a then-current medieval term to a division in law which had been discussed by Cicero (De Inventione) and Aristotle (Nicomachean Ethics).[8] Following Aristotle, Aquinas asserted that "posited justice"

settles what is virtuous among those, but only those, who are subject to the jurisdiction of that civitas or ruler. In states of affairs before this just(ice) is posited by law, it does not matter (nihil differt) whether people act this way or that. Moreover, the legal/positive is the product of human opinion and creative ingenuity (industria). It can establish a legal right or obligation peculiar to one individual (as in a particular law, that is, a privilegium or lex privata), and/or peculiar to one special topic; and it is often established by judicial decisions, that is, the application of legal just(nesses) to particular facts.[9]

However, Aquinas went beyond Aristotle in this respect: he claimed that positive law "always arises from the natural" by human reasoning. Either by strictly logical conclusion, or by what he called determinatio:[10]

Some things are therefore derived from the general principles of the natural law, by way of conclusions; e.g., that one must not kill may be derived as a conclusion from the principle that one should do harm to no man: while some are derived therefrom by way of determination [determinatio]; e.g., the law of nature has it that the evil-doer should be punished; but that he be punished in this or that way, is a determination[determinatio] of the law of nature.

Accordingly both modes of derivation are found in the human law. But those things which are derived in the first way, are contained in human law not as emanating therefrom exclusively, but have some force from the natural law also. But those things which are derived in the second way, have no other force than that of human law. ...

The general principles of the natural law cannot be applied to all men in the same way on account of the great variety of human affairs: and hence arises the diversity of positive laws among various people.[11][Bold text added]

This distinction between natural law and positive law is important, in Aquinas' view, because of the possibility of injustice introduced by:

  1. Legislators who do not make laws pursuant to the "common good" (communi bono)[12]. and
  2. Judges who follow human-made (i.e. "positive") laws too strictly.[13]

Aquinas used the category "positive law" for the purpose of critiquing human-made law by the standards of "natural law" and the (Aristotelian/Platonic) "common good".[14]

Aquinas: the judicial law was annulled by Christ

What was Thomas Aquinas' view of whether the Old Testament judicial laws (praecepta iudicialia) were binding?

He believed that rulers had the authority to use them or not. But that it would be a "deadly sin" if one observed them because he thought he had to follow the "Old Law":

The Apostle says (Heb 7:12) that the priesthood being translated it is necessary that a translation also be made of the Law. But the priesthood was transferred from Aaron to Christ. Therefore the entire Law was also transferred. Therefore the judicial precepts are no longer in force. I answer that, The judicial precepts did not bind for ever, but were annulled by the coming of Christ: yet not in the same way as the ceremonial precepts. For the ceremonial precepts were annulled so far as to be not only dead, but also deadly to those who observe them since the coming of Christ, especially since the promulgation of the Gospel. On the other hand, the judicial precepts are dead indeed, because they have no binding force: but they are not deadly. For if a sovereign were to order these judicial precepts to be observed in his kingdom, he would not sin: unless perchance they were observed, or ordered to be observed, as though they derived their binding force through being institutions of the Old Law: for it would be a deadly sin to intend to observe them thus. [15]

We could critique Aquinas' reasoning above, but the important point is: Aquinas took a strong position on whether the judicial laws are binding in the New Covenant era. His view about the non-transcendent nature of Biblical legal penalties is an assumption under-girding his use of the label "positive".[16] Therefore, if we use the term "positive law" the way Aquinas was using it, we prejudice the question about whether any particular Biblical judicial penalties are transcendent and thus binding.

The question of judicial continuity in the New Covenant era

Because it is true that:

  1. YHWH intended his law to be an exemplar for the surrounding nations to follow (evident from Deut. 4:5-8),
  2. YHWH held nations other than Israel accountable to many of the very specific laws which he later gave to Israel (evident from Lev. 18 and Lev. 20),
  3. God's laws (including penalties) were commanded to apply both to foreigners residing in Israel (Exod. 12:49, Lev. 18:26, Lev. 20:2, Lev. 24:22, Num. 15:15, Num. 15:30), and to those seeking refuge from outside Israel (Num. 35:15) -- even if they were not in the Sinai Covenant,
  4. YHWH gave motive clauses for many of the judicial penalties which were important and morally independent of any specific covenant (such as the motive of deterrence [Deut. 13:11, Deut. 17:13, Deut. 19:20, Deut. 21:21], and the motive of permanently removing evildoers from the community [Lev. 20:14, Deut. 13:5, Deut. 17:7,12, Deut. 19:19, Deut. 21:21]),
  5. The apostle Paul claimed that the law (referring to Sinai judicial law) should be "used lawfully" in the case of "those who strike their fathers and mothers, for murderers, the sexually immoral, men who practice homosexuality, enslavers," etc. (1 Tim. 1:9-10 ESV),
  6. The apostle Paul claimed that the Old Testament was useful for "instruction in justice" (παιδείαν τὴν ἐν δικαιοσύνῃ) to make us "fully equipped for every good work" (2 Tim. 3:16-17).
  7. The Psalmist claims that the law is "perfect", "steadfast", "altogether just", "good", etc. (Psalm 19, Psalm 119),
  8. Jesus taught that he did not "come to abolish the law" (Matt. 5:17), and quoted positively from a judicial death penalty (Exod. 21:17) right alongside one of the ten commandments (Exod. 20:12), when giving a moral rebuke to the Pharisees about how they were disregarding his (YHWH's) law (Matt. 15:3-6).
  9. In Biblical law, there are different levels of penalties for different types of crime (e.g. restitution for theft versus the death penalty for rape). Furthermore, Biblical law prescribes these penalties for only a limited number of crimes and explicitly disallows the creation of new crimes (ie. turning a sin into a crime by adding a new civil penalty) by men (Deut. 4:2, Deut. 17:20). These facts suggest that YHWH's commandment of specific penalties was not arbitrary, but was designed by him to achieve good, just purposes, and fully in accordance with his good nature.

Given the above facts, it is at least an open question whether any particular judicial law "posited" (i.e. commanded) by YHWH was intended to reflect his will concerning transcendent justice for mankind in general.

Thus, to adopt Aquinas' terminological distinction, and assert that the judicial laws given by YHWH are "positive" (i.e. not inherently "moral") is begging the question with respect to whether these laws are still binding in the New Covenant era. On the question of Biblical law continuity/discontinuity, it is prejudicial to label certain commands of YHWH as "positive".

We could just as properly assert that all commands of YHWH are "positive".[17] This would return us to the appropriate discussion of which of YHWH's commands enumerate transcendent standards of justice.

  1. ↑ Aquinas, Summa Theologiae I-II, Q.104, A3
  2. ↑ Which Aquinas labeled: praecepta iudicialia.
  3. ↑ And if "positive" is merely being used in its bare semantic sense of "posited", then the label is irrelevant to the argument. All commands of God are "positive", in that sense.
  4. ↑ Josh Sommer, "Covenants, Law, & Nature – A Response to Gary DeMar", url:https://joshsommer.org/covenants-positive-law-nature-a-response-to-gary-demar
  5. ↑ Finnis, Philosophy of Law: Collected Essays, vol. 4, 160
  6. ↑ Murphy:

    Aquinas tends to limit the expression positive law to human law in his mature theory, but there is nothing intrinsic about “law laid down” or “imposed” that limits it to human law. (Murphy, The Philosophy of Positive Law, 214)
  7. ↑ Finnis, 177, 179-180
  8. ↑ Finnis, 177, 180-181
  9. ↑ Finnis, 181
  10. ↑ Finnis:

    Some positive laws are also norms of the natural moral law — that is, are requirements of practical reasonableness.41 But to say this is not to detract in the least from the positivity of those laws — that is, from the fact (where it is the fact) that they have been posited humanly,42 by human will,43 and can be studied as positive.(Finnis, 183)
  11. ↑ Aquinas, Summa Theologiae I-II, Q.95, A2
  12. ↑ Aquinas:

    Now the end of law is the common good; because, as Isidore says (Etym. v, 21) that law should be framed, not for any private benefit, but for the common good of all the citizens. Hence human laws should be proportionate to the common good (Aquinas, Summa Theologiae, I-II, Q.96, A1, also Q.91, A5).

    Philosophically-astute readers recognize that "common good" is itself an inherently question-begging phrase.
  13. ↑ In his commentary on Aristotle's Ethics, Aquinas cites an example:

    when the law proposes something in a universal way, and the observance is not beneficial in a special instance, reason rightly dictates that a person should correct what is deficient in the law. ... The reason is that even the legislator himself, had he been present where such a case happened, would have determined in this way and the correction would have been made. Moreover, had he foreseen this from the beginning he would have put it in the law. But he could not comprehend all particulars; in a certain city it was decreed under penalty of death that strangers were not to climb the walls of the city for fear they would usurp the civil government. But during an enemy invasion some strangers by climbing the walls defended the city from the invaders. They do not deserve to be punished by death; it would be against the natural law to reward benefactors with punishment. Therefore in this case legal justice must be directed by natural justice. (Aquinas, Commentary on Nicomachean Ethics, Book 5, Lecture 16 (1086))
  14. ↑ Plato:

    Enactments, to the extent that they are not for the common interest of the whole community, are not truly laws. (Plato, Laws 4.715b).
  15. ↑ Aquinas, Summa Theologiae I-II, Q.104, A3
  16. ↑ Aquinas: "But the judicial and ceremonial precepts have a different binding force, derived, not from natural reason, but from their institution alone." (Aquinas, Summa Theologiae I-II, Q.104, A4)
  17. ↑ "All of divine law is positive in source..." (Murphy, The Philosophy of Positive Law, 214).
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