Schroeder on A Court of Chaos and Whimsy: On the Self-Destructive Nature of Legal Positivism @cardozojersj

Joshua J. Schroeder, Schroeder Law, is publishing A Court of Chaos and Whimsy: On the Self-Destructive Nature of Legal Positivism Forthcoming, The Cardozo Journal of Equal Rights and Social Justice in the Cardozo Journal of Equal Rights and Social Justice. Here is the abstract.

Each of the four most famous dictators in modern Western history, Adolf Hitler, Porfirio Díaz, Napoleon Bonaparte, and Oliver Cromwell, were legal positivists. This is to say that they rejected both the common law and natural law conceptions of human rights. They furthermore rejected the judiciary’s equitable power to enforce human rights independently of politics by characterizing the old Chancery of England as a court of chaos and whimsy, adopting John Selden’s religious rejection of equity as a “roguish thing.” As Bertrand Russell recounted in his History of Western Philosophy, the philosophical avatars of German, French, and English despotism, Hegel, Rousseau, and Hobbes, provided the ideological bases for legal positivism in stark realism and relativism. Yet, the United States’ legal establishment will not shake off these problematic philosophies as clearly self-destructive and illogical. Rather, inspired by Oliver Wendell Holmes, Jr., the United States presently embraces them by willfully ignoring how Holmes punished Porfirio Díaz’s leading critic Eugene V. Debs. The road to this state of affairs in American law was paved by an under-emphasis of the majority view of the American Revolution, embodied by the contributions of James Otis and Phillis Wheatley. Professor Adrian Vermeule seemed to realize that real American conservatism may require a defense of liberal Republican values. Thus, he blamed Scalia’s originalism for being “content to play defensively within the procedural rules of the liberal order,” and that real conservatives should abandon the founding and embrace “illiberal legalism,” a form of progressive legal positivism that Vermeule swears “is not legal positivism.” Such defenders of Hobbes’ Leviathan learned from Hobbes to destroy exactly the positions they, in fact, defend. Just as Selden rejected measuring the chancellor’s foot only to measure Cromwell’s, Vermeule’s rejection of Scalia’s originalism and legal positivism is ‘aufhebung,’ rejected, but preserved. This article is dedicated to the illumination of legal positivism, which often destroys itself in these sort of illogical Hegelianisms.

Download the article from SSRN at the link.

Bateman on Radbruch, Fuller, and Hart on the Choice Between Natural Law and Legal Positivism @cg_bateman

C. G. Bateman, University of British Columbia, Faculty of Law, has published There Ought to be a Law: Gustav Radbruch, Lon L. Fuller, and H.L.A. Hart on the Choice Between Natural Law and Legal Positivism at 40 Journal of Jurisprudence 271-329 (2019). Here is the abstract.

In legal philosophy, there is a question that has troubled scholars for at least two centuries: that of how we ought to understand what the law is, in so far as it may be either something which exists on its own apart from any system of morals, legal positivism, or whether law is intrinsically connected to morality, natural law. Whether the view one takes on this question will produce either better or worse results stemming from the professional actions of lawyers, judges, and legal scholars in both domestic and international legal contexts was both passionately contended by Gustav Radbruch (1878-1949), as a once positivist converted to natural law, and hotly debated by Lon Fuller (1902-1978) and Herbert Hart (1907-1992) on behalf of natural law and positivism, respectively. After living through World War 2 and witnessing the horrible crimes against individuals and humanity carried out by the Nazis, Radbruch came to the conclusion that even if a legal system rested on legal certainty and laws equally applied to equals, if it was bereft of justice, the foundation of law, it was no law at all. Radbruch became convinced that how lawyers, judges, and legal scholars answer the question of ‘what is law’ is of central importance because he saw how the blind fidelity of judges and lawyers to the legal system under the Nazis resulted in gross injustices which law was supposed to protect against, not furnish. In this paper I want to both briefly sketch out how this question came to be of such importance in the legal philosophy of Gustav Radbruch, Lon Fuller, and Herbert Hart, and I want to pose the question as to whether or not we are better off, whether better results will follow for society, if we choose to understand law either as dependent on morality or separate from it. I conclude that some via media, some middle way, between the two perspectives offers the best option, for the simple reason that both perspectives teach us essential things about the nature of law, and it would be irresponsible to merely cling to the good things one perspective offers at the expense of the important things we learn from the other.

Download the article from SSRN at the link. 

Rodriguez-Navarro and Zambrano on One Myth of the Classical Natural Law Theory: Relfecting on the "Thin" View of Legal Positivism @LawatSurrey

Veronica Rodriguez-Blanco, University of Surrey, Centre for Law and Philosophy, and Pilar Zambrano, University of Navarra, have published One Myth of the Classical Natural Law Theory: Reflecting on the “Thin” View of Legal Positivism at 31 Ratio Juris 9 (2018). Here is the abstract.

Much controversy has emerged on the demarcation between legal positivism and non‐legal positivism with some authors calling for a ban on the ‐as they see it‐ nonsensical labelling of legal philosophical debates. We agree with these critics; simplistic labelling cannot replace the work of sophisticated and sound argumentation. In this paper we do not use the term ‘legal positivism’ as a simplistic label but identify a specific position which we consider to be the most appealing and plausible view on legal positivism. This is the view advocated by Gardner in his paper 'Legal Positivism: 5½ Myths’ (Gardner [Gardner, J., 2001], 199), where he carefully scrutinises the most convincing and unifying postulates of legal positivism, which he calls “the thin view”. The study shows that this thin view presupposes an empirical conception of action that is untenable and implausible since it makes acts of engagement with the law unintelligible to an observer of such acts.

The full text is not available from SSRN.

Marmor on What Law Is and What Counts as Law @CornellLaw

Andrei Marmor, Cornell University Law School, has published What Is Law and What Counts as Law? The Separation Thesis in Context at Cornell Legal Studies Research Paper No. 17-34. Here is the abstract.

The separation thesis associated with the legal positivist tradition in legal philosophy holds that the legal validity of norms depends only on their sources, not on considerations of merit or value. In this essay I show that the separation thesis comes under pressure from cases in which an answer to the question: Is o an F? partly depends on the values associated with the nature of F. This is certainly the case when we try to determine whether an object is a work of art, for example. In response, proponents of the separation thesis would want to resist the analogy with art, and maintain that the ascription of legal validity to a norm does not involve any evaluative dimensions. I argue that this line of response is not very firm, and a better way to defend the separation thesis is to see it as an answer to the question of what makes it the case that an o counts as an F in the relevant society. I try to show that this latter type of question follows from the theoretical context in which the separation thesis comes up, namely, a reductionist explanation of legal validity. My purpose here is to show how a proper construal of the separation thesis, in the context of legal positivism’s reductionist ambition, goes a long way in supporting its truth.

Download the article from SSRN at the link.

Leiter @BrianLeiter on Legal Positivism About the Artifact Law in a Forthcoming Book on Law As Artifact @OxUniPress

Brian Leiter, University of Chicago, is publishing Legal Positivism About the Artifact Law: A Retrospective Assessment in Law as Artifact (L. Burazin et al., eds., Oxford University Press, 2017). Here is the abstract.

This paper defends legal positivism against the backdrop of the assumption that law is an artifact, not a natural kind, and that it is an artifact whose nature does not depend on the intentions of a creator. I argue that even within the constraint imposed by the metaphysics of what law is, positivism satisfies the most important theoretical desiderata, including locating law within a naturalistic worldview.

Download the essay from SSRN at the link.

Holtermann @JakovoHoHo on Getting Real or Staying Postive: Legal Realism(s), Legal Positivsm, and the Prospects of Naturalism in Jurisprudence

Jakob v. H. Holtermann, Univesrity of Copenhagen, iCourts, Centre of Excellence for International Courts, has published Getting Real or Staying Positive: Legal Realism(s), Legal Positivism and the Prospects of Naturalism in Jurisprudence as 29 Ratio Juris 535 (2016). Here is the abstract.

The relationship between Legal Realism and Legal Positivism has been a recurrent source of debate. The question has been further complicated by the related difficulty of assessing the internal relationship between the two main original strands of Legal Realism: American and Scandinavian. This paper suggests considering American and Scandinavian Realism as instantiations of forward‐looking and backward‐looking rule skepticism respectively. This distinction brings into sharp relief not only the fundamentally different relationship between each of these two Realist schools and Legal Positivism but also their equally different potentials as starting points for naturalizing jurisprudence.

The full text is not available for free download from SSRN.

Spinoza and Legal Theory

Hans Gribnau, Tilburg University, Fiscal Institute and the Center for Company Law, Leiden University, is publishing The Power of Law: Spinoza's Contribution to Legal Theory in Spinoza and Law (A. Santos Campos, ed., forthcoming). Here is the abstract.

In seventeenth century, the constitutional idea of the rule of law was recalibrated in the Republic of the United Provinces. Spinoza was one of the major figures in the Low Countries theorising about the optimal state and its constitutional foundations. He designs a dynamic system of checks and balances in the distribution of powers.

Spinoza’s naturalistic and descriptive approach of the relationship between law and power shows that the exercise of state power on that basis - within the constitutional constraints – may be formally almost unlimited, but, indeed, materially there are limits. The ability of government to regulate society has its limits which are inherent in the existence of the state.

Legal positivism can welcome Spinoza as a kindred spirit – although by no means unconditionally. Indeed, effectiveness is a constitutive requirement for positive law. However, effectiveness implies that citizens comply with the (civil) law not only for fear of reprisals, but also out of respect for commonwealth’s authority. Therefore, notwithstanding the conceptual separation between law and morality, positive law has to take into account the interests and moral convictions of the people.

Finally, Spinoza gives an answer to the key question of political philosophy, viz. the issue of sovereignty. Only a government that embodies the unity of the cooperating citizens has the exclusive (absolute) power to determine the bonum commune. Hence, government should permanently create a substantial loyalty of its citizens, on the one hand, but citizens must actively support the state because of their interest in the existence of the state, on the other hand.

In addition, citizen’s criticism of the political order should be based on obedience to the law. As a rule, obedience to the law should not be dependent on the substantive agreement with the law, which actually would undermine the democratic order. Otherwise, the legal order degenerates into a civil war.

Download the essay from SSRN at the link.