Legal Positivsm

By Jeremy Daggett on in Finding My Political Philosophy. Permalink.

We have quite a bit to think about in these last three months.  In the post entitled Considerations for the Upcoming Election, I asked several questions of my readers.  Continuing the series of “Finding my Political Philosophy”, let’s look at a question or two, and try to give an answer which will help us clarify what we think about these important, foundational issues.

I had asked a series of questions, not in any particular order of importance, but in general the later questions tended to be the most important.  Let’s consider the question on Legal Positivism.  It is not surprising that many people you talk to may have never heard of this term and have no idea that it describes exactly what they think about the nature of laws.

Let’s think about an example or two.  You are having a conversation with a friend about capital punishment and your friend thinks it is wrong, but since it is legal it can be used.  The conversation turns to another topic, abortion, and your friend gives a similar response.  She is against abortion, but it’s legal, so abortions can be performed.

Two other people are talking about marijuana.  4:20 guy is saying the sweet Mary Jane is good stuff and we should have the right to smoke it, and it’s like totally natural.  His friend, who has both his feet firmly planted on the ground, says that it may be the case that pot is great, but it’s illegal to use and that settles the question for him.

The common thread among the beliefs here is that legality is synonymous with permissible, and what is permissible is legally protected behavior.  If it is illegal, it is impermissible and not a legally protected action but, in fact, proscribed and carries with it varying penalties.  It seems to me that the underlying belief about the nature of laws is that they are primarily pragmatic.  Another important feature of this view is that something is legal if the government says it is legal and illegal if the government says it is illegal.  Something is a law if the government says so. (Of course, there are many situations in which the people directly vote to legalize or criminalize certain things.)

Some of you may be very content with this and be in full agreement.  “Yeah, that’s right.  If it’s legal, it’s legal; if it’s illegal, it’s illegal.”  You may even chuckle at the tautology.  What if somebody asked you, how do you know it is legal (or illegal)?  You might respond, because the law makes it so.  But how do you know that there is a law that makes it so?  Because the government passed the law (or the people voted to make it a law).  But what if the government or the people passed a law that said we could kill Chinese people on sight? Well, it would be legal to kill Chinese people on sight, but I very much doubt that would ever happen.  But it would still be ok?  Well, it would be immoral, but it would be legal.  I personally would never do that.  So where does justice come in?  Justice is in defending the laws of the land and prosecuting its offenders.  What if the government made it illegal to pray in Church? Well, it would be illegal to pray in Church.  That wouldn’t be good though, and, again, I highly doubt that would ever happen.  Let’s say the penalty is a 5 year imprisonment and a million dollar fine.  Since justice is in defending the laws and prosecuting its offenders, the man caught praying in Church is justly condemned?  That doesn’t seem right, but I guess that’s the corner I’ve painted myself into.

This, dear friends, is legal positivism.  This is the view which would tell us that something is lawful merely because the proper authority has made it so (assuming it doesn’t contradict a higher law which trumps lower laws).  For instance, it was legal until quite recently (mid-1990s) to shoot a Mormon on sight in Missouri.  (It’s funny how laws get lost in the shuffle.)  So Billy Joe could have shot Jebediah Joseph in Missouri on May 3, 1989 and been completely in the clear legally.  He could not have been prosecuted (except that everybody was completely unaware that he was protected by law until they discovered it and immediately changed the law, but there was a time when the citizens did know).  But what about the morality of the law?  Does what is good have anything to do with the legitimacy of the law?  (Ironically, the word legitimate comes from the Latin word for law, lex.)  Is a law really just the ‘say so’ of those in power?

In the United States, we are historically very aware of the possibility of tyrants who will just make up laws willy-nilly, and we have a supreme law of the land by which all other laws must be measured: the Constitution.  This provides a safeguard against the potential dictatorial leader who would manufacture laws to prop up his power and ensure that his enemies did not present a credible threat to his power.  This seems to be a fairly safe mechanism to keep laws on the straight and narrow, so to speak.  But, if we stop for a moment and think about it, the security is only as good as the supreme law allows.  What if the supreme law itself provides for the existence of immoral laws?  Do we not have recourse to a higher law?  Must we appeal to a divinity or religion as the higher authority?

I do think we have recourse to a higher law which trumps all other laws and can even determine whether a “law” is even really a law at all.  Furthermore, I think we don’t need to appeal to a particular manifestation of divinity or a religion to accomplish this.  One need only appeal to Natural Law.  This is the Law that is common to all mankind—written into our very soul, if you will.  This law governs all men regardless of time or place.  Some have called it conscience.  This is a rather sloppy usage, though I think we get the point.  We just know that it is wrong to steal, to perjure, to kill an innocent, to fail to give what is due to another, to dishonor those to whom honor is owed, to so strongly desire another’s possessions that you contemplate offending in one of these other areas.  There are others, but that is a small list that no one could in truth disagree with.  Any who would object to the truth any of these need only be shown the repulsive results for any community that would sanction the opposite actions.  What community ever sanctions the killing of innocents?  Those killed may be innocent, but they never killed under the assumption that they are innocent, but rather guilty in some way of some thing deserving death.  What community encourages it’s citizens to steal from their neighbor? Government sanctioned stealing may occur, but it is under the pretense that it is not stealing but what it due to another.  It is never under that presumption that stealing is universally acceptable.

You probably have seen what seems to be a rather large hole in my theory since all this evil can be done in the name of the good.  I agree that this can and does happen, but I say that this is not a problem with my theory.  It is rather a problem with immoral men who twist what is good and true, or from the fact that otherwise good people are yet morally unformed and are unable to properly see the Good and the True.

More will be said about this, but let us pause a moment and contemplate the preceding ideas.

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One Response to “Legal Positivsm”

  1. dusticus says:

    I really like how you broke this down. It is well explained and logical. Sadly, the immoral seem to have lost, or suppressed, much of their God given logic on their path to immorality and will likely fail to grasp even this.

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