Friday, July 9, 2010

Morality Immaterial to Law? Thoughts on Legal Positivism


Generally there are two approaches to law and the authority it holds:

1.   Law supposes the existence of that which is just and morally right, and depends on this to bind.

2.   Law is based on the power of the state to decree, and those who are subject are bound to obey.

With recent debates on abortion, on the nomination of Kagan to the Supreme Court and other issues of Law, I've noticed that there has been a number of comments (whether knowingly or not) which reflect the position known as Legal Positivism.  Certain laws are considered as being obligatory to obey whether or not one would argue that they are just or not.

What is Legal Positivism?

This position, attributed to John Austin (1790-1859), was described as:

“The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry.”

In other words, whether a law is or is not a law is entirely a separate question from whether a law is good or bad.  The only source of law is "positive law" which is simply "man made laws" and denies the concept of Natural Law.

The Stanford Encyclopedia of Philosophy describes the premises of this system as:

According to Bentham and Austin, law is a phenomenon of large societies with a sovereign: a determinate person or group who have supreme and absolute de facto power -- they are obeyed by all or most others but do not themselves similarly obey anyone else. The laws in that society are a subset of the sovereign's commands: general orders that apply to classes of actions and people and that are backed up by threat of force or “sanction.”

It is a dangerous belief.  If you separate law from the legitimacy of said law, you can, in effect, justify anything: Sharia, Nuremburg Racial Laws, Slavery and so on.  Obedience to the law becomes required, because government is the authority which determines what we can and cannot do, and opposing a law on the grounds it is unjust becomes irrelevant.  "Abortion is to be permitted because it is legal" is one of these types of allegations.  Because the Supreme Court decreed that abortion is a right, it is considered immaterial whether or not it should be a law.

Of course we don’t have to invoke the Nazis.  We can look at what we do in America.  For how many years did the government refuse to change laws on lynching or slavery or segregation?

Stare decisis: What’s mine is mine.  What’s yours is up for grabs

We already have the legal concept of Stare decisis (Lat. "to stand by that which is decided." The principle that precedent decisions are to be followed by the courts).  The problem is the assumption is based on the assumption that the prior interpretation of the law by the court is valid.  See Planned Parenthood v. Casey as an example of this.  It assumes Roe v. Wade was a valid decision, and therefore must be followed. 

Such reasoning begs the question that Roe v. Wade was right (which is very much disputed in America).  Before arguing that because it was decreed a right we cannot challenge it (which is often the appeal of the supporters of abortion rights), we should remember the Dred Scott ruling and Plessy vs. Ferguson were also assumed right and later overturned.  Essentially it showed that merely because something was accepted as a law, does not make it binding on these grounds, and that the courts can make mistakes.

However, under Legal Positivism, If it wasn't a valid or wise decision, then it is too bad.  It's a law and must be obeyed.

What Legal Positivism Ignores (and Martin Luther King Jr. was aware of)

The problem is, when one traces the origin of the law, the question arises: Why was it enacted to begin with?  If an unjust law was enacted in the beginning, why are we bound to follow it?

Legal Positivism is then a sense of begging the question.  The concept is: we must obey a law because it is a law.  The so-called Nuremberg Defense ("I was just following orders") assumes legal positivism.  [This is sometimes called the defense of Superior Orders].

Any change of laws becomes binding under this theory so long as the law is followed in the enactment of these laws.  Thus we see a problem.  If the justness or unjustness of a law is irrelevant to the following of the law, then we cannot sanction people like Martin Luther King Jr. when he organized against laws he felt unjust.  Nor can we approve of his defense, given in Letter from a Birmingham Jail, where he stated:

You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court's decision of 1954 outlawing segregation in the public schools, at first glance it may seem rather paradoxical for us consciously to break laws. One may well ask: "How can you advocate breaking some laws and obeying others?" The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that "an unjust law is no law at all."

Now, what is the difference between the two? How does one determine whether a law is just or unjust? A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distorts the soul and damages the personality. It gives the segregator a false sense of superiority and the segregated a false sense of inferiority.

Instead, "Bull" O'Connor using his police dogs and fire hoses to break up demonstrations was merely undertaking an exercise in upholding the law.

(Hopefully, you’re instead asking yourself what gave the state the right to pass this law to begin with).

The Double Standard

Most people don't consistently advocate Legal Positivism of course.  Only when they run afoul of the law does it matter.  When one believes a law is unjust they generally want to overturn it, claiming it is an immoral and unjust law.  However, under Legal Positivism, one has no legal basis for doing so.  The best one can do is to say "if you don't like it, vote to change the law."  If the law comes from a source from where there is no appeal (the US Supreme Court decisions or from a totalitarian decree), or if the state has disenfranchised you from the right to vote, there is nothing you can do to change said law.

The practical effect of Legal positivism in America is a double standard.  When a party is in power, they point to a law and say "It must be followed because it is a law."  When out of power, they say "This law is unjust and must be changed."  What is ignored is what gives a law its power.  If it is the state, then it follows that rights and restrictions come from the state because of the assumption that law must be obeyed because it is law.  However, if the rights of the human person do not come from the state, then they cannot be removed by a decree of the state.

Thus we have the abortion debate in a nutshell.  Those who believe in abortion rights tend to argue from the position of legal positivism, while those who oppose abortion rights tend to argue that the rights of the human person come from outside the state, and the state has no authority to remove human rights from any human persons.

Conclusion: When Law and Justice Stand In Opposition

Any opposition to a law which says “This is wrong” is a judgment on moral grounds.  Such opposition assumes there is a higher standard to which law must conform if it is to be considered binding.  Generally, we believe that a law must be just (morally right and fair to all) to be obeyed. 

This means we have to practice what we preach.  If one claims that they have to accept abortion as a right because the state has decreed it to be a right, it is a package deal meaning there is no way to refuse anything else the state wishes to decree.  On the other hand, if we want to invoke a higher standard for judging the law, we must remain consistent and recognize such a standard always holds us accountable for our behavior.

In both cases, it falls to the proponent to show that their view of the law is justified.  Unfortunately, all too often we see people deny (without logical proof) that there are moral absolutes outside of us and then conclude the contrary view is true: that there is no moral standards by which the law is judged.

Not believing [A] does not disprove [A].  Nor does it make [B] automatically true.

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