Scalia, Positivism, etc.
Franck, Matthew J
mfranck at RADFORD.EDU
Fri Mar 10 05:36:57 PST 2006
Spring break beckons, the birds are singing, and I must stop and thank
Sandy Levinson, Tom Grey, Lynne Henderson, and others for educating me.
Perhaps I need to read Austin (too depressing each time I've tried
before), but it does seem to me that the logical path from
utilitarianism to positivism to ethical non-cognitivism (as in the
"strong form" of legal positivism I mentioned before) is not simply a
slippery slope but a step off a cliff. That's where we're headed just
as soon as we nod in agreement with Bentham about "nonsense upon
stilts," whether Bentham knew it or not. And that's why I think of Hans
Kelsen as the legal positivist par excellence-he had the courage, or the
folly, to follow positivism where it necessarily leads. (Others might
take a more half-Harted approach, but that's another matter.)
On the other hand, I do know, and wrongly suggested otherwise yesterday,
that there are natural lawyers who hold that "a law must be moral to be
real law" (in Lynne's phrase) and that promulgation has nothing
necessarily to do with supplying the law's authority. I think they are
wrong, but that too is another can of worms. Here I will only say that
Lincoln was on my side in that debate, and that's good enough for this
And to come back to where we started, Justice Scalia's insistence that
as a judge he is bound by the positive laws the people have made, and
that he has nothing to do with decreeing moral imperatives from the
bench in the name of the Constitution, makes him neither a rejectionist
where natural law is concerned nor any species of positivist whatever.
Sandy is free, of course, to call himself what he will!
Matthew J. Franck
Professor and Chairman
Department of Political Science
P.O. Box 6945
Radford, VA 24142-6945
e-mail mfranck at radford.edu
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