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Leiter on the Radicalism of Legal Positivism

By Lawrence Solum

Brian Leiter (University of Chicago Law School) has posted The Radicalism of Legal Positivism (Guild Practitioner, 2010) on SSRN. Here is the abstract:

?Legal positivism? is often caricatured by its jurisprudential opponents, as well as by lawyers and legal scholars not immediately interested in jurisprudential inquiry. ?Positivist? too often functions now as an ?epithet? in legal discourse, equated (wrongly) with ?formalism,? the view that judges must apply the law ?as written,? regardless of the consequences. Lon Fuller, Ronald Dworkin, and the Critical Legal Studies writers have all contributed in different ways to the sense that "positivism" is either a political conservative or politically sterile position. This essay revisits the actual theory of law developed by positivist philosophers like Bentham, Hart, and Raz, emphasizing why it is, and was, understood by its proponents, to be a radical theory of law, one unfriendly to the status quo and anyone, judge or citizen, who thinks obedience to the law is paramount. To be clear, the leading theorists of legal positivism thought the theory gave the correct account of the nature of law as a social institution; they did not endorse it because of the political conclusions it entailed, and which they supported. Yet these theorists realized that the correct account of the nature of law had radical implications for conventional wisdom about law. We would do well to recapture their wisdom today.

And from the paper:

Think, for a moment, of a parent who tells her child, ?You must wear your raincoat today.? The child replies, ?Why? It?s not raining,? even as the first drops fall and the clouds darken. The parent has a justified claim of authority over the child precisely because the child will come closer to what Raz calls ?right reason??doing what the child really ought to do (namely, wear a raincoat)?than he would without the parent?s intervention. We can all, I think, agree that parents, in situations like this, have justified claims of authority over their children. But Raz?s suggestion is that a legal system only has a justified claim of authority over its subjects when it satisfies the same stringent standard.

Legal systems can sometimes meet this standard, for example, when they solve coordination problems that afflict any complex society. Should we drive on the left or the right? Surely it is a matter of moral indifference! The Brits may drive on the left, but they are not for that reason immoral drivers! What matters is that we all do the same thing, that is, that we coordinate our behavior. The law is uniquely situated to effect that outcome: by telling its subjects to all drive on the right (or the left, as the case may be), it can exercise a justified claim of authority over its subjects on the Razian view. Sometimes it can also do so when the law brings to bear technical expertise not available to the ordinary citizen.

But the key point is that, on the Razian view, it almost certainly turns out that most laws, and most legal systems, do not have justified claims of authority over their citizens. Take the legal system in the plutocratic United States: its laws?from its tax system, to its laws regulating business?consistently enrich a tiny minority (1-2% of the population) at the expense of the well-being of the vast majority.7 To be sure, the U.S. legal system claims authority over its subjects, but is it justified in doing so? The Razian answer is almost certainly in the negative, unless we suppose that the vast majority would be complicit in their subjugation.8 If that is right, then even though the U.S. legal system claims authority over its subjects, that claim is probably not morally defensible.

Short and illuminating. Recommended.

Full post as published by Legal Theory Blog on March 15, 2010 (boomark / email).