More on Positivism

It occurs to me that the last post was really long. Sorry. Here’s some more on the consequences of Positivism.

Constitution. From constituere, to fix or establish. The U.S. Constitution was written as an establishing document. It “fixed” the powers of government. If you read the main body, it presents a list of what the government, be it the Executive, Congress, or the Judiciary, may do. In those places where it prohibits the government from doing something, it is always a narrowing of an earlier grant of authority. Fundamentally, the original Constitution, without the Bill of Rights, is an empowering document. It transfers some power from individuals into the Federal government. The Federal government, under this interpretation, has no power that is not granted by the Constitution. Nowhere does the Constitution grant the Federal government the power to establish an official state church. Therefore, the Federal government has no power to do so. Doing so would be unconstitutional, even without the 1st Amendment.

But the Framers found it difficult to get the Constitution ratified without a Bill of Rights. So they wrote up a list of Amendments which, together, are simply a political tract describing the new government that the Constitution would form. Congress has no power to establish a church. It was a grave error to write the Bill of Rights in the language of law. It was an even graver mistake to incorporate it bodily into the Constitution.

Expressio unius est exclusio alterius. To express one is to exclude others. If you enumerate rights, you exclude those not enumerated, 9th and 10th Amendments notwithstanding. This wasn’t such a problem in the early (pre-Progressivism) days, because the original natural rights philosophy of the Founders dominated Constitutional interpretation. The document was still fundamentally an empowering document. It just had some extra descriptions attached to it, clarifying the limits of the power granted by the main body.

In come Progressivism and Positivism. Between the 1830s and the 1860s, the dominant philosophy changes. By end of the Civil War, the Constitution is no longer an empowering document. It is now a limiting document. Government power to do a thing is assumed, unless the Constitution (or Bill of Rights) removes that power. The philosophy finally consumes the whole of the law in the 1930s, with the packing of the Court.

Today, Positivism instructs that, should Congress and the several States decide that the 1st Amendment prohibition on the establishment of religion was, for some reason, no longer conducive to Progressive social goals, they might, presumably with voter approval, repeal it. And in doing so, make the establishment of an official state church Constitutional without any further action. Even though the Constitution does not grant Congress the power to establish a church.

The difference is the source of the government’s power. It no longer comes from individuals, but from the group. Positivism allows the group to remove the legal safeguards protecting individual rights. This is, of course, a monstrous abrogation of individual rights.

Because Positivism permeates the legal environment, reinforced by Progressivist law professors (I often employ the phrase, “liberal pedagogical hegemony”), there is no legal means by which to mount a principled challenge to bad law. That is, there is no way to make a legal argument that a law, ruled entirely Constitutional, is nonetheless violative of individual rights. Until the dominant philosophy changes, this will remain impossible. And the philosophy will not change easily. I wonder even if it can change.

On Philosophy in Legal Education

As you already know, having thoroughly read and understood the About and Policies pages, I am a law student. I attend a public law school in a key Midwestern swing state. This information is specific enough to narrow the field to a handful of schools, but not so specific that my professors or fellow students might discover my identity. Such a discovery would likely result in an unpleasant situation, as I fully intend to engage in critical commentary on various aspects of my legal education. To wit ~

Law school began for me last year with a one-week, “intensive,” introductory course titled “Introduction to Law and Legal Systems.” Oh, thought I, in preparing for this course. They intend to introduce us to their particular pedagogical methodology and give us a basic understanding of the nature of law and its function in society. I expected we would discuss the basics of law, before getting into the substantive and procedural studies of our regular semester courses. After all, it is generally important to identify the subject of study before beginning to analyze it. So I expected questions like “what is law?” or “what is the role of government?” I also expected some kind of statement or description of the method by which the school expected us to learn the subject matter. Alas, woe and misfortune! This is not what “Introduction to Law and Legal Systems” turned out to be!

An introduction to the administrators. A speech by the Dean full of vapid remarks about the great power and responsibility of lawyers (complete with the expected, inelegant references to a certain arachnoid comic book character). An exhortation to community service from the head of the legal clinic. Invitations to join, and the benefits of joining, the local, state, and national bar associations. A cursory and purely descriptive review of the structure of American government, which everyone should have learned by the 9th grade. A brief exercise in reading a judicial opinion. A threatening lecture on the honor code and its consequences. And finally, a two hour lecture on substance abuse. Apparently, all lawyers are alcoholics, and must be constantly reminded of the fact.

I wondered immediately whether the observed high incidence of alcoholism among attorneys might perhaps be related to the lack of a cohesive philosophy of law. I mean, here we all were, starting in on studying torts, contracts, and the delicious but perilous intricacies of civil procedure, and we still hadn’t figured out what we, as nascent attorneys, were supposed to be studying, or why.

It took a whole year before I heard the question, “what is law?” or even the word, “philosophy,” in the classroom.

In my second year course studying unincorporated business entities and basic business associations, the professor suddenly called on a student and asked her the question, “what is law?” Being generous, I attributed her startled, incoherent and vacuous response to the unexpected nature of the question. But I should probably know better. The topic continued for several minutes, with several students contributing. None of their comments are memorable to me now, a week after the event. Someone may have said something like, “a set of rules that determine people’s rights,” but I really don’t remember. Nothing was worth remembering. I long ago developed the habit of immediately forgetting incorrect statements made in the classroom. Fortunately, the professor must have gotten the answer he was looking for and moved on. Although I offered to contribute an answer, I was not invited to do so.


The answer, of course, is that law is the means by which the coercive power of government is placed under objective control. The function of law is to restrain government action. Its power to restrain private action, by setting the objective rules for when the government may use coercion to affect private action, is incidental. Understanding this, of course, requires an understanding of the role of government in society, a subject we only broached this week in Constitutional law class.

American law is hierarchical. The Constitution is the legal foundation. It is itself built on a more fundamental foundation of philosophy, but given that, the Constitution is the logical starting point for a study of law. But this is not where we begin. Constitutional law is taught only in second year. I have learned that this is a common practice among law schools, but not the most common. Most teach some form of Constitutional law to first-years. The rationale for putting it off is that Constitutional law is full of variegated and complex legal doctrines that may be difficult for first-years to grasp. I disagree. More on that in a bit.

So here I am, getting Constitutional law in my second year, and the professor begins to discuss legal syllogisms and the role of reason in the law. Excitement! Adventure! But no. Grief and regret! The professor, who is, I admit, quite well-versed in the modern Western (read: Kantian, and, notably, Humean) philosophers, makes the following pronouncement (paraphrased):

Logic is great for simple, concrete legal questions where the answer is easy. But in most legal analysis, you have to balance the value interests , and logic just doesn’t work for that.

This is, of course, a result of the influence of Hume and his guillotine, severing is from ought. Ayn Rand clearly and efficiently does away with the is-ought dilemma:

In answer to those philosophers who claim that no relation can be established between . . . values and the facts of reality, let me stress that the fact that living entities exist and function necessitates the existence of values and of an ultimate value which for any given living entity is its own life. Thus the validation of value judgments is to be achieved by reference to the facts of reality. The fact that a living entity is, determines what it ought to do.

Ayn Rand, The Objectivist Ethics, in The Virtue of Selfishness, 13, 18 (1964). In my great magnanimity, born of a desire to always assume the best in people, even when they’re wrong, I attributed my professor’s continuing adherence to Hume to a simple lack of familiarity with Rand’s solution to the is-ought dilemma. He was, after all, quite laudatory of reason and logic in the first instance, and even went so far as to make some minor deprecatory remarks about Kant. But I did not raise the issue in class. Perhaps I should have.

All of this got me thinking. American legal thought is dominated by two related philosophies. They are so related that they can reasonably be called different aspects of a single philosophy. The first is Positivism. This is the idea that there is no objective ought that can be applied to the law, and so the law must be treated simply as being what it is. And it is whatever the law maker says it is. Positivism is responsible for the extremely heavy weight given to precedent in the law. Read Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), which was written prior to the dominance of the law by Positivism and the related Progressivism in the 1830s, and you will find that Chief Justice Justice Marshall does not once cite precedent, even though there is relevant precedent, from the Court itself, to support him. Precedent is useful for maintaining uniformity in the law over time, but entirely useless if the object is to correct historically entrenched, bad law.

The other is Progressivism. Progressivism feeds on Positivism. If the law is only held accountable to itself, and can ultimately be whatever the law maker (Congress, the Framers, or the Majority by vote) decides it will be, then the fundamental, assumed premises on which the country was founded can be tweaked, manipulated, and eroded in the name of social engineering. Prof. Adam Mossoff describes the effect of Progressivism on the right of property in his lecture, The Rise & Fall of Property Rights in America, available for viewing at the Ayn Rand Institute‘s Website (free registration required). Positivism strips the ought from the law, and makes true that old maxim of legal education, “there is no right answer in the law,” so that Progressivism may manipulate the law and engineer society. If a law stands in the way of the Progressive social engineering goals, Positivism allows the law to be changed, without respect to reality to determine what the law ought to be.

Progressivism is the philosophy behind that half-remembered definition of law I heard in by business associations class. Law is no longer a means for controlling government, but a means for controlling individuals. And Positivism makes the rules arbitrary.

My Constitutional Law professor noted that, although the word “equal” appears in the Declaration of Independence, it did not appear in the Constitution until the ratification of the 14th Amendment. Therefore, he concludes, the Framers did not intend for the Constitution to be interpreted as requiring the equal application of the law. Bunk, says I. Read the Declaration, and you find that the Founders believed it was self-evident that all Men are ‘created’ equal . It was not necessary to state this in the Constitution because it was assumed as given. Along with the rights to life, liberty, and pursuit of happiness. The philosophy of the Founders took these fundamental precepts of government for granted, so there was no need to state them in the Constitution. In fact, the Founders could not possibly have envisioned that the Constitution might one day be interpreted under a philosophy that did not presume these fundamental issues. The government they created wouldn’t work without them.

The philosophical change to Positivism vitiated the ideology on which the country was founded, at least as far as the law was concerned. And this is the essence of my revelation about philosophy in legal education. Philosophy is no longer relevant to the study or practice of law. If law is whatever the law maker says it is, and there is no means, other than whim, for deciding what the law ought to be, then there is no use for philosophy in the study of law. The student need only treat laws as metaphysically given, perceptually self-evident facts. Because it might change in nature at the blink of an eye, it is useless to take a principled approach to studying law. From the Modern Positivist position, anyway.

And as the law is entirely dominated by Positivism, it is deaf to arguments that challenge established law on principle. So law students do not need to be versed in philosophy.

In the Company of Giants

I am delighted to have received several comments from persons of great note and whom I respect. To the intellectual giants who have offered their encouragements, many thanks. I hope you may find value in my efforts.

On Comments

The Seneschal announces that comments now function as expected. There will be minor formatting changes in the near future, but these should not disrupt functionality.

~Seneschal of Comments

The Newness of it All

I know nobody reads this yet.  So it is in a spirit of lighthearted intralocution that I announce that the site may be wonky for a few hours while I add some things, take others away, and otherwise engage in minor and major jiggery-pokery.

If I Had One, I’d Bet She Could

The writers of Absolutely Fabulous came up with a perfect line for every situation. Patsy manages to burn down Edina’s kitchen by falling asleep with a cigarette in her mouth. Afterwards, the two are discussing how to redecorate the room. Patsy, commenting on how easy it was for her to achieve the “distressed” look of the kitchen in its burned-out state, makes the following comment.

What the hell is the difference between a painting done by a person who chooses to paint like a child and a child’s painting?

If anything encapsulates the current state of modern art better than Patsy’s humorous quip, it is this film. My Kid Could Paint That is a documentary about a 4-year-old whose paintings have sold for thousands of dollars. Those who know me will tell you that I am not fond of documentaries, so when I say that I am looking forward to one, it’s definitely a noteworthy event.

My Kid Could Paint That is due out October 5th, 2007.

Inaugural Post

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