The Emancipation Proclamation, signed by Lincoln in 1863, was an executive order

that gave all slaves residing within the United States freedom from ownership. This
did not give former slaves the full rights of United States citizens. This was a
positive law, as it was written law, put into a form of code, which covered the issue
of slave ownership until the ratification of the 13 th amendment to the United States
Constitution. It was also natural law in that society had progressed to a point
recognizing the inherent evils of owning another human being. The positive law, in
this case, was largely influenced by natural law which is a common occurrence. The
lawmakers of the United States, have generally, looked to natural law to lay out a
roadmap for positive law which provides punitive consequences for violating natural
law, or the current interpretation of natural law. This is a reason positive law is
revised over time and how natural law continually evolves positive laws,
punishments associated with violating the law, and allows a democracy to function
through a healthy and engaging discourse to shape the future.
The issue with natural law is that every individual has a different set of ethics and
morals based on a multitude of factors. The positive law, emancipation, was a way
for the natural law principal, slavery is evil, to be written and codified so that it
could be both applied and revised through adjudication. This provides the means for
the judicial system to look at individual circumstances and clarify what the penalties
are for violating this natural law on a consistent, fair, and impartial basis. This is the
foundation of the United States legal system.
Often in natural law arguments, both ethos and pathos are used to sway and
influence positive law by the individuals interpretation of natural law. In the case of
the Emancipation Proclamation, abolitionists were vocal about the value and worth
of another human and the inherent evils of human ownership. Using both generally

accepted ethical standards of the time as well as an emotional response among the
northern and southern populous, abolitionists were able to create enough influence
to make the Executive consider, then make a change in positive law. With natural
law, there is often a difficulty understanding theory based on the inherent good of
mankind. Therein lies the reason we use positive law in a Jeffersonian style
democratic society rather than purely natural law. This case presents several
challenges to both positive and natural law. As the Confederate States fell to the
advancing Union troops, in those geographic areas, the Emancipation Proclamation
became law. The challenge was enforcement in what were now former states under
the Union. This was overcome by charging newly freed slaves into another form of
servitude by being drafted into the Union Army or Navy to help fight to free those
still held in the bonds of slavery. There is clear irony to this situation and it is an
example of natural law overtaking the positive law in a way that does not actually
violate positive law or natural law showing both can be valid and co-exist. There is a
general acceptance that this was to a degree both a voluntary and yet a moral
obligation. Again the Emancipation Proclamation nor the 13 th amendment granted
rights to former slaves, as they were still 3/5ths of a person under the Constitution,
just freedom from ownership by an individual. However, at no time in the history of
The United States has being drafted into military service been a form of slavery or
indentured servitude. Although not explicitly drafted, the natural law in this case,
the belief in the greater good of humanity and this cause was just and worth dying
for, allowed the slaves to technically retain the newly granted freedom while
bonding them to a cause or moral side of a physical war. This increase in troops
was a decisive advantage over the Confederate States who did not allow slaves to
be conscripted into war service until the last few months at which time the Union

had already gained a significant advantage and eventually won the war. Postbellum
periods meant that the Emancipation Proclamation became the law of the now reUnited States under the 13th Amendment.
A crucial point, in this case, was the fact the order was issued by the Executive.
Wherein the Executive under the constitution generally enforces laws and is not
charged with the creation of law, times of war allow for this within the framework of
The United States Constitution where by the President has martial power over the
states in rebellion. By taking natural law and creating positive law using this specific
power, the Executive created a precedent on the powers of the Executive during
times of war.