Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, May 14, 2014

Two observations on Legal Theory Lexicon entry - "What is the nature of law?"

Over at Legal Theory Blog, Larry Solum recently reposted a Legal Theory Lexicon entry, "The Nature of Law." Solum's helpful and concise Lexicon entries do not aim for completeness or depth, but rather to provide a general overview pitched toward first-year law students with an interest in legal theory. In keeping with that understanding of the scope of the project, I offer a couple of observations by way of supplementation from a natural-law-based understanding of positive law and legal positivism:

- Solum is correct that "[w]hen the positivists articulated the theory they were criticizing, their articulations of natural law theory were neither charitable nor true to the natural law tradition." He cites Holmes's reference to a "brooding omnipresence in the sky," although Holmes's reference was to the common law, not the natural law. A clearer example appears in what John Finnis has described as H.L.A. Hart's "polemic against lex iniusta non est lex." For one version of Finnis's argument against Hart on this point, see Finnis's entry on Natural Law Theories for the Stanford Encyclopedia of Philosophy (which Solum helpfully links in his Lexicon entry). [In the interest of evenhandness, it may be worth noting that the accusations of misunderstanding and mischaracterization between natural law theorists and legal positivists hava run in both directions. In addressing "5 1/2 Myths" about legal positivism that have given it "a whipping-boy status in so much legally-related literature," legal positivist John Gardner asks: "Have the members of any tradition of thought ever had their actual philosophical commitments so comprehensively mauled,twisted, second-guessed, crudely psychoanalyzed, and absurdly reinvented by ill-informed gossip and hearsay, as the legal positivists?"]

- The Lexicon entry observes that "[i]t is difficult to know where the positivist tradition begins." In addressing this issue, it is helpful to distinguish between (a) theorists of positive law, and (b) legal positivists. My teacher James Bernard Murphy makes this useful distinction in his discussion of "Legal Positivism and Natural Law Theory" as part of the Natural Law, Natural Rights, and American Constitutionalism project. In his book, The Philosophy of Postive Law: Foundations of Jurisprudence, Murphy describes St. Thomas Aquinas as "the first major theorist of positive law" (pp. 55, 81). But Aquinas is no "legal positivist." According to Murphy, "it is only in the twentieth century that some influential legal theorists began to call themselves 'positivists' and their doctrines 'legal positivism,' notably Hans Kelsen (1945), H.L.A. Hart (1961), and Joseph Raz (1986)." Once this distinction between theorists of positive law and legal positivists is in place, we can see why "the positivist tradition" can mean two different things, each of which has a different starting point.

[Update: At the sound suggestion of Matthew Lister, I've removed a potentially misleading reference to Jeremy Bentham that appeared in an earlier version of this post.]


Walsh, Kevin | Permalink