The beginnings of modern legal positivism can be seen in the fourteenth century with Duns Scotus and William of Occam. Duns Scotus argued for the primacy of the will over the intellect and that morality depends upon the will of God. Natural law could thus have been completely opposed to what it is if God had so willed; law is not tied to the essence and reason of God. William of Occam fully accepted this theory, arguing that oughtness and universals had no connection to reality, to the “is.”
For Occam the natural moral law is positive law, divine will. An action is not good because of its suitableness to the essential nature of man, wherein God's archetypal idea of man is represented according to being and oughtness, but because God so wills. God's will could also have willed and decreed the precise opposite, which would then possess the same binding force as that which is now valid--which, indeed, has validity only as long as God's absolute will so determines. Law is will, pure will without any foundation in reality, without foundation in the essential nature of things.
For both Occam and Duns Scotus, teleology ceases to be a part of law either. Their work of destruction continued under the leaders of the Renaissance and Reformation who spurned the idea of a transcendent human nature.
Occamism had wrought havoc in theology as well as in metaphysics and ethics. Reason had been rendered barren. The so-called Reformers had drawn the ultimate conclusions from Occamism with respect to theology. Contemptuous of reason, they had arrived at a pregnant voluntarism in theology as well as at the doctrine of natura deleta, of nature as destroyed by original sin. Thereby the traditional natural law became speculatively impossible. The spirit of the Renaissance, too, had made use of Occam's separation of faith and knowledge to emancipate secular thought or worldly wisdom, and to place it in opposition to sacred learning….Law as such was separated in a positivist fashion from the eternal law when the natural moral law had been made into a positive act of God's absolute will. Machiavelli (1469-1527) had secularized this view and had drawn the consequences for politics. The absolute power of God in Occam's doctrine became at the hands of Thomas Hobbes the absolute sovereignty of the king.
Regarding the question of natural law’s compatibility with John Calvin’s theology, scholars are divided. This is perhaps answer enough, especially when compared to the clarity of the subject in the writings of St. Thomas Aquinas. Emphases such as man’s total depravity and the primacy of the Divine will, coupled with a clearly expressed theory of natural law, perhaps lead to the deemphasizing of natural law seen following the Reformation. A counter argument, however, is that the conception of natural law was so well understood and that the “reformers” did not dispute the Church’s teaching.
Calvin clearly discussed the idea of the law of God written on man’s heart; this could not but be the case given the first two chapters of Romans. He wrote of the Gentiles having no excuse, arguing that they “had the natural light of justice, which supplied the place of that law by which the Jews were instructed, so that they were a law unto themselves.” As Susan Schreiner wrote,
What has fueled much of the debate about Calvin and natural law is the question of how the conscience and the remnant of the image of God now function. How fallen are the natural gifts? Are they a “point of contact” between the human being and God? No Does the remnant of the divine image only render the human being inexcusable before God? Certainly, with respect to the spiritual realm, human reason, will, conscience, and judgment only render human beings guilty coram Deo; these remaining faculties can only deprive us of the excuse of ignorance. On this point Calvin was perfectly clear and consistent; his condemnation of our natural gifts as directed to God was unrelenting.
While Schreiner went on to discuss the teaching elements Calvin saw in the law written on man’s heart, she was forced to admit that, for Calvin, “the law of nature concurred primarily with the second table of the law….Calvin believed that human beings ‘have somewhat more understanding of the precepts of the second table because they are more closely concerned with preservation of civil society among men.” This is closely tied to Calvin’s teachings regarding the order imposed upon the world that is sustained by God. For Calvin, natural law informs the human conscience of this need for order in nature. However, “Knowledge of either the natural or the written law did not, according to Calvin, give us the ability to obey….Thus Calvin vehemently criticized those who would deduce free will from the existence and knowledge of either a natural or a written law.”
According to Schreiner, “Calvin did not formulate a ‘doctrine’ of natural law and did not develop a “theology of natural law.” Nonetheless, he used the principle of natural law as an extension of his doctrine of providence to explain the survival of civilization.” Timothy George argued that for Calvin, “Natural law was neither a necessary nor a sufficient guide for Christian magistrates in the performance of their God-given duties. At best, natural law might provide a kind of negative incentive for these ministers of divine justice.” Calvin’s limiting of natural law to that which makes man inexcusable, along with his conception of the Divine will and the noetic effects of the fall, makes use of natural law qua participation in the Divine reason impossible. Because there is no true metaphysical natural law that man is able to participate in, man is reduced to the written law of God and his own decision making when formulating law. This loss of the metaphysical understanding of natural law was made clear during the Enlightenment developments of natural law.
With Hugo Grotius in the seventeenth century, there began the departure from metaphysical to rationalist understanding of natural law. For Grotius law results from the appetites socialis and can be logically determined apart from an understanding of man’s nature and end. Nor need the particularities of place and time be consulted; man can sit in an ivory tower and rationally conceive the laws to govern the world. The law is not tied to the end of man and thus has no limits other than the will of society.
Deism, empiricism, and the individualism of social contract theory and the Reformed religions gave the final blows in the elimination of natural law theory from legislation and jurisprudence. One can look to English jurisprudence and see that, while natural law theory continued in Anglican jurists such as Richard Hooker and Sir Edward Coke through the sixteenth and seventeenth centuries, it could not ultimately withstand the onslaught of all these ideas. By the mid-eighteenth century Sir William Blackstone writes his Commentaries on the Laws of England describing the new conceptions of law that had arisen after the state of nature/social contract theory of Hobbes and Locke and the effects of Reformed Theology under the Puritan parliament during the English Civil War. Of law he writes,
However [governments] began, or by what right soever they subsist, there is and must be in all of them a supreme, irresistible, absolute, uncontrolled authority, in which the jura summi imperii, or the rights of sovereignty, reside. … By the sovereign power, as was before observed, is meant the making of laws; for wherever that power resides, all others must conform to, and be directed by it, whatever appearance the outward form and administration the government may put on. For it is at any time in the option of the legislature to alter that form and administration by a new edict or rule, and to put the execution of the laws into whatever hands it pleases; … and all other powers of the state must obey the legislative power in the discharge of their several functions, or else the constitution is at end. In a democracy, where the right of making laws resides in the people at large, public virtue, or goodness of intention, is more likely to be found, than either of the other qualities of government.
Later hand in hand, deism and empiricism destroyed the metaphysical foundations upon which natural law theory depended. If the world is merely material, if natures do not exist, and if man cannot know God and his reason, then a transcendental standard of law cannot exist. Law can then be either the forceful imposition of the will of a stronger or the mutually agreed upon contracts of various individuals. Empiricism and state of nature theory led to the idea that natural law, if it exists at all, is merely the law seen in the state of nature; it has no telos, no limits, and no transcendence. Without its metaphysical basis, law lost any connection to ends or limits. “But from the time that the divine law was rejected as superstition, and custom as a mere routine, the law had to be made.” Positive law reigned supreme.
