Why Positive Law Dies….

…and why no principle aimed at liberty – including the non-aggression principle – can survive without it.

The Natural Law: A Study in Legal and Social History and Philosophy, by Heinrich A. Rommen

I ended my last post on this book with the following:

Rommen concludes: “In real life, this attitude [favoring strictly positive law] is untenable….”  When one acts, in real life as opposed to living in his mind, he acts as if something of objective law exists – as man’s common sense has ordinarily held.

If anyone were to attempt to realize a strict and consistent positivism in the everyday life of society, his sole possible attitude would be an unbearable cynicism.

Why?  This is the question that the positivist, ultimately, can never answer – hence, cynicism.  At some point, he must offer an unchallengeable, unquestionable foundation – else there is no “why.”

Even the non-aggression principle cannot stand without this why?  There is no other creature on earth that respects it – so, why should man?

Why?

The “why” is the question for the positivists.  On what foundation does your positive law exist?  Rommen suggests that inevitably, no matter how hard man struggles against it, the foundations of natural law are leaned upon.  Without this, cynicism is all that is left.

Continuing now with his work: this “strict and consistent positivism,” as Rommen puts it, has only one criterion for law:

…the will of the sovereign formulated in accordance with the legislative process prescribed by the constitution.

It is not difficult to understand why such a process will result in cynicism – both in those who benefit from and those who suffer from every such law. 

As St. Augustine said, “Take away justice, and what are realms but great robber bands?”

The will of the legislator is sufficient; so, what controls this will?  Well, for the positivist this presents a dilemma: why should anything control it?

If the state is the omnipotent creator of the law, a conflict between law and the lawmaker is, as positivism indeed affirms, obviously out of the question.

For this reason, natural law thought patterns are found hidden throughout the pronouncements of self-styled positivists – they are expected to (and pretend to) justify their pronouncements via words that mimic something approaching (however feebly) natural law. 

An instance in point is the principle that the individual should not be compelled to renounce interests to which he is fully entitled.  But the whole question, of course, is to determine what makes him entitled to certain interests.

Yes.  Why?  The pure positivist has no answer; to a greater or lessor degree, the answer offered approaches something of natural law – or at least pretends to do so.

Rommen notes that there was a time when things like a Bill of Rights were unnecessary.  Christian tradition and the ideas of natural law placed limitations on sovereignty.  I have written on such things in the past:

·         A Written Constitution: Protecting the State from the People

·         The Fallacy of Written Constitutions

Constitutions – dating back even to the Magna Carta – were a step backward, not a step forward; a Bill of Rights inherently suggested that the rights were not natural to man.  As Rommen puts it:

…the modern positivist conception of sovereignty has rendered formal and positive declarations of human rights a practical necessity.

Conclusion

Modern totalitarianism is an end product; it is not the opening period of a new era.  It is indeed the final outcome of positivism….

Voluntas facit legem: will makes law.  Law is as the sovereign wills, and there is no check on the sovereign except by the sovereign.  Where else can positivism lead but totalitarianism?

As a result, the contemporary criticism of the modern concept of sovereignty must logically turn against legal positivism and thereby break down one of the greatest obstacles to the revival of the natural-law idea.

We are certainly living through this.  We see it in the divide in politics, albeit most proponents and opponents likely don’t see the struggle in these terms. 

We see it in the meaning crisis – if I have no inherent end or purpose (from which natural law is then derived), then what is the point of all of this?  Nihilism and cynicism don’t satisfy for long.