Logical and Legal Positivism

I believe I read long ago some intriguing analysis linking legal positivism with logical positivism—showing the commonalities and interrelationships. But I’ve long lost this reference and have not been able to find exactly what I’m looking for. If anyone knows of any good discussions about the links between legal positivism and logical positivism, I’d appreciate you sharing it.

I think it’s time for some libertarian to set the record straight on legal positivism, and to do this right I think its connections to logical positivism need to be analyzed as well. For legal positivism, as a libertarian this issue has always frustrated me. The natural law types seem to take a bizarre stance on it, speaking in overly metaphorical, colorful, non-rigorous, almost mystical language. For example they talk about how law and morals cannot be separated, which seems like a nonsense idea in the first place. A strict interpretation of this would mean we cannot even identify existing positive law as law if it is not just law (to make this worse, the standard of “just” for most natural lawyers is not libertarian; it is more procedural and/or religious/statist).

The common law court/militia nut types exemplify this by capitalizing the word “Law” when they speak of “just” or “valid” laws. They say that law is not a Law if it is not just, and so on, which seems needlessly semantically disingenuous and crankish to me. I’ve always thought that of course we can identify something as a law even if it is unjust, and thus we can and should distinguish between just law and unjust law (not that just any dictate of a state is law–as even H.L.A. Hart shows in The Concept of Law–some decrees can be so arbitrary and unlaw-like as to not even be law, but that does not mean that every law that is, is just). I’ve always thought that what is unlibertarian about legal positivism is not the idea that law can be “separated” from morals (i.e. that we can identify something as a law, even if it’s a bad law), but rather the assumption that law can be, or even must be, issued by some sovereign–namely the state, or its legislature. (And to be honest, I have always thought that natural law is legal positivist in this sense as well, by just pushing the ultimate law-maker back from the human legislature to God; but to my mind, the very idea that justice, goodness, true law can be decreed by any entity, even God, is fallacious and contrary to the notion or rightness and justice itself.) And I have an inkling that this form or aspect of legal positivism–the idea that law or morals can be issued by decree of some authority–the part I view as unlibertarian–is somehow linked with logical positivism/monism/empiricism/scientism. But I have struggled to make this connection just right in my mind, though I feel that it is there; and I believe I have read something on this by some acute observer in the past–some normal commentator, not even some libertarian with an axe to grind.

If anyone has any suggested references discussing this connection, please note or discuss in the comments.

Update: in reply to the comment below:

Thanks. Many people say legal positivism is just the idea that we can identify existing law without necessarily pronouncing on its legitimacy–its morality of justness. If that was all it was, I would hardly see what the debate is about, since we obviously can recognize law even if it is unjust law; there can be unjust law. This is especially so when law is made by legislative decree.

I think there is a something more to legal positivism, and this aspect is more troubling to libertarians and it is this aspect that I think makes it arguably have a connection to logical positivism. It is, as I said, the idea that law is or can, or really must, be decreed, by some law-maker, some authority. It is the idea that something cannot be a real law unless it has the blessing of the state. I suppose I see a possible connection here to logical positivism since it is monist. It is empiricist. The legal positivist seems to be monist, to me, too, in a sense, since he sees no “reality” to the normative realm. If I say this is a just law for such and such reason, and that is an unjust law, then he thinks this is mere unscientific metaphysics, since it does not have any teeth to it. He is like the empiricist-logical positivist in that he sees things as real only if they have direct or physical consequences, are testable, and so on. The logical positivist dismisses apriori and teleological reasoning as mere metaphysics or empty assertions. It’s only real to him if its formulated as a falsifiable law that can then be subjected to experiment and data and possible falsification. Likewise, the legal positivist only thinks of a rule as a “real” one if it is enforced and issued by some authority. This leads them to not only dismiss moral reasoning about “natural law” on the grounds that it’s mere babble or wordplay, it leads them to have little objective criticism of positive law that does exist. If you start to think of “real law” as only law that the sovereign decrees and enforces, then you start equating law with “whatever the sovereign does.” You see this mentality echoed all the time when people, like Rush Limbaugh, say, say that drugs should be illegal, because they are illegal.

And when you start to become (legal) positivist like this, you gradually erode any principled opposition to the positive law. Sure, your typical mainstreamer will have preferences as to what law or constitutional feature he wants. But his criticisms are ultimately flaccid and weak because they are inferior to the overarching legal positivistic assumptions. They can’t say that this positive law is unjust because it does not conform to this idea natural or moral law–since they have dismissed the latter as being unscientific and metaphysical. So they are left resorting to unprincipled, non-rigorous “balancing” tests, resort to democracy/majority vote, and utilitarian and wealth-maximization reasoning (X should be the law, not Y, because it generates more efficiency or wealth etc.).

And we see such things have increased with the rise of legislation as the supreme source of law. Nowadays even in common law countries legislation has come to dominate the common law as the primary source of law. In America, in a way it’s worse since at the “top” of the legislative and state-sovereignty pyramid is the Constitution. Sure, it’s said to be a “higher” law, and it’s more general, principled, and abstract than mundane statutes and legislation. But it’s just a written piece of legislation, all the same, and it enshrines in people’s minds the idea that law by its nature “comes from” the decree of some sovereign authority, namely the state and its Congress/legislature. (And as I mentioned above, a similar mistake is made by some natural law types when they say that it’s God, not the legislature, who makes the rules. This mistake is not as bad or insidious, but it’s still a mistaken notion about the nature of law, norms, and morals and right and wrong, in my view.) So then the debate becomes one about what this language in the Constitution means–not about what right and wrong is. Sure, normative and moral concerns affect the arguments they make, but they are basically arguing about what these written words mean–to determine the law.

As I noted in Another Problem with Legislation: James Carter v. the Field Codes, there is a fascinating paper published in 1884 by James C. Carter, The Proposed Codification of Our Common Law: A Paper Prepared at the Request of The Committee of the Bar Association of the City of New York, Appointed to Oppose the Measure. This paper was an attack on David Dudley Field’s attempt to (legislatively) codify New York’s common law. Carter opposed replacing case law with centralized legislation. Carter notes that caselaw precedents are flexible and allow the judge to do justice (see also John Hasnas’s classic The Myth of the Rule of Law), while statutes are applied literally, even where injustice is done or the legislator did not contemplate this result. Thus, Carter argues, one of the worst effects of legislatively codifying law–replacing organically developed law with artificial statutes–is that it changes the role of courts and judges from one in which the judge searches for justice into mere squabbles over definitions of words found in statutes. As he said at pp. 86-86:

At present, when any doubt arises in any particular case as to what the true rule of the unwritten [i.e., judge-found, common-law developed] law is, it is at once assumed that the rule most in accordance with justice and sound policy is the one which must be declared to be the law. The search is for that rule. The appeal is squarely made to the highest considerations of morality and justice. These are the rallying points of the struggle. The contention is ennobling and beneficial to the advocates, to the judges, to the parties, to the auditors, and so indirectly to the whole community. The decision then made records another step in the advance of human reason towards that perfection after which it forever aspires. But when the law is conceded to be written down in a statute, and the only question is what the statute means, a contention unspeakably inferior is substituted. The dispute is about words. The question of what is right or wrong, just or unjust, is irrelevant and out of place. The only question is what has been written. What a wretched exchange for the manly encounter upon the elevated plane of principle!

Or, as I note in “Legislation and the Discovery of Law in a Free Society,” Journal of Libertarian Studies 11 (Summer 1995), “Thus, previously, law was thought of as a body of true principles ripe for discovery by judges, not as whatever the legislator decreed. Nowadays, however, legislation has become such a ubiquitous way of making law that ‘the very idea that the law might not be identical with legislation seems odd both to students of law and to laymen.'” [Bruno Leoni, Freedom and the Law]

This is the aspect of legal positivism I despise–not the trivial idea that you can recognize a bad law as a law even though it’s bad.

For those who say legal positivism is only this trivial idea, they should read Hart’s The Concept of Law, and the various commentaries on the civil law itself. The western world’s major legal systems today are divided primarily into common-law based systems, and civil-law based systems. The civil law is based on various codification efforts, such as the French Napoleonic code, which itself was a codification of various evolved principles based ultimately on Roman law. In a sense, common law has more in common with Roman law than civil law does–both common law and Roman law were more or less decentralized, non-legislative systems–they were not dominated by legislation. The civil codes, while often elegant because they were scholarly codifications of decentrally-developed Roman law principles, exhibit a type of extreme legal positivism in that they enshrine legislation as the primary source of law–this is legislative supremacy. Sadly, however, even the elegance of the early codifications is being swamped by the rise of patchwork, artificial legislation; and even the common law is being gradually submerged in a sea of ad hoc statutes and regulations. Even in America, one of the primary “common law” countries, legislation has dwarfed it and in any case, as noted, our written Constitution at the top of the legal pyramid imbues the whole system with legal positivism similar to that of the civil law countries’ civil codes, so that the idea of natural justice and natural law and common law has become more marginalized.

For more commentary on this, see:

• my “Legislation and the Discovery of Law in a Free Society,” at footnote 5 and accompanying text et pass.: “modern civil law principles are embodied in a statute called a Civil Code, and the civil law enshrines legislation as the primary source of law.5 … 5Legislative supremacy is announced in the very first articles of the Louisiana Civil Code. Article 1 provides that “The sources of law are legislation and custom,” but article 3 makes it clear that legislation is dominant and supreme: “Custom may not abrogate legislation.”
• Yiannopoulos, A.N., The Civil Codes of Louisiana (“the Louisiana Civil Code differed from the Napoleonic Code in its approach to the fundamental matter of sources of law. The extreme legal positivism of the Code Napoleon that has elevated legislation to the status of the single source of law may be contrasted with the genius of the Louisiana Civil Code that has always recognized custom as an authoritative source of law and equity as a source for the resolution of disputes in the absence of a positive law or custom”);
• Robert A. Pascal’s Book Review of Shael Herman, The Louisiana Civil Code: A European Legacy for the United States (1993) (“Professor Herman’s failure to see the Digest of 1808 and the Civil Code of 1825, and therefore the Revised Civil Code of 1870, as primarily Spanish law documents may be attributable to his evident passion for French Enlightenment thought, particularly its secularism, its rationalism, and its individualism, and the desire to have the Louisiana codifications envisioned in that light. It may very well be that without their rationalist spirit the French would not have attempted, much less succeeded, in stating their civil law so simply, so beautifully, and in such magnificently organized form as they did in the French Projet and in the French Civil Code. But that form could be utilized by Louisianians seeking to state the basically Spanish law as simply, as beautifully, and with as much organization, without in any way subscribing to French secularism and French legislative positivism.”);
• Jean Louis Bergel, Principal Features and Methods of Codification, 48 La. L. Rev. 1073 (1988) (“A new code stems from the will of its authors to consecrate a doctrine and to translate a specific inspiration into positive law. Even though the innovative forces vary according to the circumstances, a true codification aims at instituting a coherent body of new or renewed legal rules destined to either establish a new legal order or to restore the preexisting order. It occurs only after a thorough research, a general reflection, and a creative effort through which choices have been made, guidelines laid down and, lastly, decisions taken. Thus, in France, the 1804 Civil Code was based on fundamental ideas which were quite new at the time: the uniformity of the law throughout the whole territory; the acknowledgement of legislation as the only real source of law; the comprehensiveness of the law regulating all social relations; the separation of law from morals, religion, and politics.”);
• John Henry Merryman, The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America, 2d. ed. 1985
  • “Another dimension of the movement toward state positivism was provided by the secular character of the European revolution. Although there were variations in form and degree from nation to nation, the idea that law was of divine origin–whether expressed directly, as in divine (i.e. scriptural) law, or expressed indirectly through the nature of man as created by God, as in Roman Catholic natural law–now lost most of its remaining vitality. Formal respect might still be paid to the deity in the lawmaking process (as, for example, in the American Declaration of Independence), but henceforward the operating theory was that the ultimate lawmaking power lay in the state. Roman Catholic natural law had lost its power to control the prince. Secular natural law, while providing many of the ideas that were the intellectual fuel of the revolution, was ineffectual as a control on the activity of the state. It was backed by no organization and had no sanctioning power. The perennial controversy between natural lawyers and legal positivists (familiar to all students of legal philosophy) thus was decisively resolved, for operational purposes at least, in favor of the positivists. Consequently, although this debate still goes on, it has had a distinctly academic flavor since the emergence of the modern state. All Western states are positivistic.”
  • After the French Revolution, “one reason for the attempt to repeal all prior law, and thus limit the effect of law to new legislation, was statism–the glorification of the nation-state. A law that had its origins in an earlier time, before the creation of the state, violated this statist ideal.”
  • “We have seen that the role of the civil law judge is generally thought to be much more restricted and modest than that of the common law judge. It is reasonable to speak of the common law as a law of the judges, but no one would think of using such terms in speaking of the civil law. The image of the Roman iudex, the alleged abuses perpetrated by judges under the old regime, and the conce tion of the role of judges that emergcd in France during the revolution converge to limit what judges are supposed to do. Legislative positivism, the dogma of the separation of powers, the ideology of codification, the attitude toward interpretation of statutes, the peculiar emphasis on certainty, the denial of inherent equitable power in the judge, and the rejection of the doctrine of stare decisis–all these tend to diminish the judge and to glorify the legislator.”
• Shael Herman, The Louisiana Civil Code: A European Legacy for the United States (1993) (Centralization of Governmental Authority: “Unification of law through codification also implied political centralization with legislation as the chief source of law. Napoleon himself had elevated the legislator to the pinnacle of government. “Who has the place of God on earth?” he asked. “The legislator.” Some historians have suggested that Napoleon was referring to himself. A virtual duplication of a provision of the French Projet du gouvernement of 1800, Article 1 of the original Louisiana Civil Code announced the doctrine of legislative supremacy: “Law is the solemn expression of the legislative will.” In accordance with the separation of powers proposed by Montesquieu in his Spirit of the Laws, the legislature made laws, the judiciary interpreted them, and the executive carried them out. We know that many of the French revolutionaries admired the philosophy of Jean Jacques Rousseau. Rousseau’s vision of legislation must have figured in Napoleon’s assumptions about codification. According to Rousseau’s Social Contract, the legislator expressed the citizens’ general will in positive enactments and transcended the competing demands of particular interests.”);
• my post Homesteading, Abandonment, and Unowned Land in the Civil Law (discussing the legal positivism of the civil code regarding homesteading and property ownership)
• Update: See Olivier Moréteau, “Louisiana 1812-2012: 200 Years of Statehood and 300 Years of French Law Influence,” in the Feb. 2012 La. Bar J.:
• • “In 1825, the [Louisiana] Digest was replaced by a Civil Code, also drafted in French and translated into English, this time abrogating “the Spanish, Roman and French laws” in force at the time of the Purchase on all matters governed by the Code (art. 3521). Then an Act of 1828 proceeded to a general repeal of all the civil laws in force before the Civil Code. However, in a 1839 case (Reynolds v. Swain), the Louisiana Supreme Court declared that this repeal was confined to positive or written law and could not apply to the unwritten laws, citing among others the revealed law, the natural law, and the law of nations: in the opinion of the court, what had not been enacted by the Legislature could not be abolished. At least at that time, this made Louisiana law remarkably different from French law; legislative positivism was rejected, with judges preferring to rely on the tradition and principles of natural law.”

[Mises]

Update: See Kevin Bjornson’s brief comments on the connection between legal and logical positivism in a 1992 talk, “Natural Law Origins of the Common Law (Kevin Bjornson) – The Turney Collection“:

I think it’s much better then, if we follow the rules of common law as a body then of course the economy will prosper and people will be happy. Now the opposite type of law is positive law. Now what I mean by that is not positive in the sense of good. If I may make an analogy to logical positivism— that’s the school of thought which says that there’s no really objective standards of reality, that all we can do is talk about language, and AJ Ayer was one of the biggest expositors of that. So in a similar vein, legal positivism maintains that there is no objective standard that applies to government statutes or decisions.