Justice Scalia and First Things

Thu Mar 9 19:27:18 PST 2006

There are disputes around and within legal positivism about its meaning,
but I don't think anyone has ever argued it has any conceptual connection
to ethical non-cognitivism.  You can of course be an ethical
non-cognitivist and a legal positivist as Kelsen was, and arguably Holmes.
But Bentham and Austin, the founders of legal positivism as usually
conceived, were both utilitarians in ethics, which is a view that holds
there are rational answers to questions of right and wrong, good and bad.
Bentham was a true utilitarian -- Austin was an ethical theist, with the
unusual fillip that God had made utility maximization the index of his
ordained moral order.  Joseph Raz, the leading contemporary exponent of
legal positivism, has written a whole book on his own (roughly Aristotelian
perfectionist) theory of rational ethics.

So Scalia could be a believer in Thomistic rationalist moral philosophy,
and yet be a positivist in legal theory -- though this combination is not
traditional Catholic teaching, which makes legal and political philosophy
continuous with and derived from moral philosophy. I'm not sure he is,
though -- someone's (Mark Scarberry's? ) point about Finnis shows that.
There's a natural-law "coordination" argument for a relatively legalistic
and textual approach to linterpretation, as against an approach that
encourages officials (including judges) to find a lot of leeway in the
sources and do moral philosophy there. There's also a democratic, hence
moral, case for it, in a democracy (and depending on conceptions of
democracy) -- and Scalia often pushes the democratic virtues of his
textualism.

Thomas C. Grey
Sweitzer Professor of Law
Stanford Law School
tgrey at law.stanford.edu

                      "Franck, Matthew J"                                                                                                   
                      <mfranck at radford.edu>         To:       <conlawprof at lists.ucla.edu>                                                   
                      Sent by:                      cc:                                                                                     
                      conlawprof-bounces at lis        Subject:  RE: RE: Justice Scalia and First Things                                       
                      ts.ucla.edu                                                                                                           

                      03/09/2006 03:32 PM                                                                                                   

I take Mark's point.  A positivist like Austin, or a utilitarian like
Bentham, can be a great advocate of law reform.  Once having admitted that
the ends he posits are rationally indefensible (or "non-cognitive" to use a
term I found myself discussing in class after my last note), the positivist
may defend on perfectly rational grounds the means to the end he has chosen
willy-nilly.  Sandy (or anyone else) may thus condemn slavery on
instrumental grounds, as producing results contrary to those he wishes to
produce.  But if he is truly a positivist, he cannot give (not because of
inability but because of a principle governing his thought) a rational
account of why he wishes for what he wishes for.  It is just because I
believe Sandy can provide such an account that I disbelieve his claim that
he is a positivist.

Here, from the entry on positivism in David Walker's Oxford Companion to
Law (1980): "the leading positivists Austin and Kelsen sought to identify
law by total separation from moral justice.  Austin saw law as the command
of a superior who had power to impose a sanction on one who did not comply,
Kelsen as directives to officials to apply coercion when these directives
were issued in accordance with a basic norm."  I can see room here for both
strong and weak forms of legal positivism.  As a descriptive matter, it
might well be said that what converts a moral imperative into a law is the
"command of a superior."  That would be the weak form.  But I never heard
of a natural-law thinker who would have disagreed with that.  Certainly
Blackstone did not.  If that is Sandy's view, fine.  But then it is
trivially true that nearly everyone?Sandy, Scalia, me, Lincoln?is a legal
positivist.

The strong form of positivism would be the view that what informs the
content of those commands that present themselves to us in the form of law
is nothing other than the will.  Not reason, not natural justice, not
unalienable rights, not what is good for man as man?none of these, but only
will.  Then we are in the positivist territory we might call Humpty-Dumpty
Land, where the only question is "which is to be master."  This is just the
sort of legal positivist I think of when others use the expression?since it
is the only interesting sort of positivist to be?and I repeat that I cannot
believe Sandy is one.

Sandy writes: "at no point do I argue that because slavery was horrendously
immoral, it was not constitutional and subject to wide varieties of legal
protection.  Does Matt disagree?"  I do not for a moment disagree.  I have
heard tell of people who did or would, but I am not one of them.  Slavery
was both immoral and lawful as long as it lasted in our country.  But
holding those two thoughts together at once in my mind hardly converts me
to the Church of Legal Positivism.  To reject positivism does not require
me to treat all and any laws with which I disagree on moral grounds as "not
law."  It does require me to attempt what is within my power to attempt,
and prudent to attempt where and when I am, to change that law.  It may in
the extreme case require me to take up arms against the established order.
Such an observation does not compel the conclusion that John Brown rejected
positivism while Lincoln embraced it, for the prudential question
necessarily intervenes (yes, I know Lincoln argued for a duty to vote for
the fugitive slave law?and he had a pretty decent argument).

But while the option against positivism does not require one to rush to
every barricade with the most intransigent response to every injustice, it
does seem to me that to opt for positivism (strong form, anyway) disables
me from rushing to any barricade whatsoever.  Or at least it disables me
from making any argument that I myself find intellectually respectable,
that anyone else should join me there.  Anyone who joins me will be there
because his viscera brought him to my side, not because his mind did so.
This is just the sort of positivism?again, the only interesting sort, I
think?that I am certain Sandy rejects just as much as I do.  Or as Scalia
does.

Spring break coming round the bend.  See y'all.

Matt
***************************
Matthew J. Franck
Professor and Chairman
Department of Political Science
Radford University
P.O. Box 6945
Radford, VA 24142-6945
phone 540-831-5854
fax 540-831-6075
e-mail mfranck at radford.edu
www.radford.edu/~mfranck
***************************

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Thursday, March 09, 2006 2:14 PM
To: conlawprof at lists.ucla.edu
Subject: RE: RE: Justice Scalia and First Things

Last comment for a while:

A positivist can believe that something is the law but ought not to be the
law. Archetypal positivist John Austin was a great law reform advocate, as
of course was Jeremy Bentham. Thus I can't agree with Matt's view that
Sandy is shown *not* to be a positivist just because he "believes that
slavery was wrong and that it ought not to have been the law of the land."

Mark S. Scarberry
Pepperdine University School of Law

 _______________________________________________
To post, send message to Conlawprof at lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof

Please note that messages sent to this large list cannot be viewed as
private.  Anyone can subscribe to the list and read messages that are
posted; people can read the Web archives; and list members can (rightly or
wrongly) forward the messages to others.