Everything you think Law is, everything you think Law does and everywhere you think Law comes from you get from a Legal-Positivist way of thinking.
PHOTO: Philosopher Jeremy Bentham's body, preserved in his own clothes at University College London.
Progressives, the ‘sensible centre’ and reactionaries, all across the political spectrum, invariably see law as the product of state action. What is required is to gain control of the legislature and courts and then repeal or overturn the laws you hate and enact the laws you want. We see this comedy — or rather farce — replayed over and over. Trump wins the election and cancels X laws and regulations and implements his own Y laws and regulations, such as his tax cuts (he didn’t do much else). Biden seizes power and cancels the Y regulations and laws he hates, full stop, U-turn, 360 degrees, literally over night, re-promulgates the X regulations and begins “transforming” the society in accordance with his agenda. The most egregious form of this nonsense is played out in the courts within the common law tradition:
“Abortion is illegal.”
“Actually, abortion is not only legal, restrictions on abortion are illegal.”
“Did I say restriction are illegal? NVM. Abortion is a matter of state’s rights again.”
In Canada, a comedian’s “joke”, for which he was prosecuted, was declared to be protected speech by a margin of only 5/4 by the Supreme Court of Canada.1 Five to four? Today, changes in the composition of Canada’s top court likely mean the “joke” would NOT have been found to be protected speech today and restrictions on this comedian’s choice of humour would be declared reasonable in a free and democratic society under section 1 of the Charter. Cases with political content, may be decided based on the activist composition of the court.
Most in the West accepts this transient carrousel of laws without question. We move through the Looking Glass and back again as if this were a normal way for a society’s legal system to function. It is just the way it is. The validity of law depends on its source. Law is something you can describe. It is factual. It just IS, like the bullet in Michael’s hand in the movie the Deerhunter. “This is this. It’s not something else.” It just is.
If I tell you Congress, a state legislature or the UK Parliament passed a law. You accept immediately that the words on a piece of paper stamped “law” have the purported force and effect of the words set out on that paper. The ‘rule of law’ is really the ‘rule of words’. Under legal positivism, this means literally any words. That is a powerful idea. But it is also relatively new. Only modern people think that way. Law has no necessary content. It just is. To say this is simplistic, almost infantile, gives legal positivism and our legal system too much credit. Literally, a modern lawyer spends most of his education and career interpreting and quibbling about words. Modern lawyers can be extraordinarily clever. They can be wonderful orators. But this is a mere shadow of what a lawyer should be. A command of history, ethics, philosophy, theology, and the traditions of his community is no longer required.
The modernist conception of law as dependent solely on source is a reality bending assumption. A word on a piece of parchment can control your life, allow people to come onto your property, empty your bank account, seize your passport or put you in jail. No natural-law thinker and no simple peasant a few centuries ago would have accepted that. It was once taken for granted that law not only had to have a “source” but also had to have internal coherence, be logical and rational; most important it also had to be consistent with the customs, traditions, morals and religious cult of the society. Law used to be full of real checks and balances; not the relatively simplistic separation of powers described by the French thinker Montesquieu. Checks and balances, as we understand the concept, only deals with externalities, with creating limits on the abuse of power through a Darwinian-like and mostly unconscious process. It does not deal with the content of the law itself.2
Before legal positivism, if you wanted to know the law, you had to go to many places, including searching your own conscience. You had to ask whether the words on the piece paper were truly law. You needed to consider the customs of the land, its traditions, moral principles, religious beliefs, what the elders thought, what the oracles foretold. Certainly, you would also look to the occasional acts of a legislature, decrees of the King, and the decisions of the learned judges, as in the case of the common law, with its doctrine of binding “precedent”.
In a functioning society, you would ensure the the laws were consistent with the earliest founding documents, such as the Magna Carta of 1215, to ensure the law was consistent with ‘inalienable’ natural rights. The English Parliament was understood to have an immense power. But even critics of the English system, such as Jean-Louis de Lolme of Geneva, could say, “Parliament can do anything or everything except make a man a woman or vice versa.” The semi-humourous statement was subsequently adopted as trite English Constitutional law, reflecting what was once obvious to all, that there were natural limits to human action, constraining even the sovereign. Those limits were accepted absolutely. In 1600 if the King of France or English Parliament declared that a man could be a women, no one in any of the estates would have accepted the decree or law as having any effect whatsoever. The promulgator would certainly have been declared stark raving mad or due for dissolution. Natural-law thinkers and jurists like a Cicero or a Thomas More would agree that a law that violated the laws of God or morality or even logic or was long and confused and impossible to understand would not be a law at all, and had no force and effect.3
Legal positivism arises not quite out of nowhere, but certainly arrives on the scene with the impact of a coup d’etat, which in the political context in which it arose, is an apt characterization. The soil from which legal positivism incubated can be found in the renaissance and secular studies in science and humanism. Renaissance and then Enlightenment thinkers dreamt of a world run rationally and scientifically, using the empirical method. It was not long before thinkers started to suggest that law too could be subjected to scientific analysis. The tendency of legal positivists like a John Austen, English legal philosopher, in the early 19th century is to proclaim the autonomy of the law and to assert its right to be treated as a science. Law could then evolve scientifically. That was the fantasy.
Until the 18th century, no clear line was drawn between the physical laws governing the universe and the laws governing human behaviour. Scottish philosopher David Hume pointed out that you had to be clear about two types of inquiry. Facts, or the what is. And standards of conduct, or what ought to be. Norms are the standard creators. He argued that natural lawyers were looking at what is and drawing conclusions about what ought to be, which he said was impossible.4 But the thinker most often credited with creating the modern legal world and underpinnings of the political one, is the philosopher Jeremy Bentham. He is most famous with the likes of John Stuart Mill for the philosophy of Utilitarianism: "it is the greatest happiness of the greatest number that is the measure of right and wrong." At the time, this was a revolutionary idea and would indeed have a cataclysmic impact on the law. Bentham ended the rule of the natural lawyers and created the modern legal world:
Although it is often claimed, with considerable justification that the true origins of modern legal positivism can be found in the writings of Thomas Hobbes, and that traces can be located in Kant and Rousseau, among others, the creator of more-or less modern legal positivism is generally understood to be Jeremy Bentham. Bentham was the first to give us a crisp articulation of the importance of distinguishing between what the law is and what the law ought to be, the first to argue that identifying law requires no necessary recourse to moral criteria, and the first, relatedly, to argue that law is intrinsically and necessarily a social creation with no natural or essentially moral foundations.
But although identifying law was thus for Bentham entirely a descriptive project, his legal theory nevertheless contained two different normative dimensions. One of these dimension, perhaps less important for contemporary academic legal theorists than it was for Bentham the social reformer, was the view that the very purpose of describing law was a normative aspect insofar as the description of law is the necessary precursor for reforming it.
Bentham, and to a lesser extent his follower John Austin was pervasively a social reformer, and his reformist views plainly extended to the legal system he found egregiously defective in countless ways. In purporting to define law in such a way that it could be inspected, rejected and reformed, Bentham gave us a conception of legal positivism that was at one level entirely descriptive and non-normative but that, at a more foundational level, was motivated by Bentham’s plainly normative desire to use that description as the vehicle for the necessarily normative project of legal reform.5
Legal positivism is progressive to its core. It is rooted in the idea of reform, that society needs to be reformed and that includes its laws. But the other aspect of legal positivism is its tendency towards centralization and authoritarianism. The man who invented the term “positivism” was the French philosopher August de Conte who ended his days advocating an authoritarian “religion of humanity”, which may have some resonance in the secular cults advocated today to save the humanity and the planet.6
But to reform the laws, you have to know what the laws are. If you could limit the laws only to a single source, man made laws and especially the laws enacted in by a legislature or Parliament, then reform becomes a lot easier. To reform the law, the state just has to pass a new and better law. You see the same movement on the continent. The ideas of the French Revolution were carried forward under the Napoleonic regime, and on the legal front this culminated in the Code Napoleon in 1804. This is the model of legal codes around the world to this day within the civil law system. Henceforth, all Frenchmen, no matter what community he lived in, in Paris or Normandy or Nice, would be governed in his civil rights by a single centralized Code. There would be no more local customs or traditions or unregulated priests or elders interfering. Power was vested entirely in centralized French state. Even in common-law jurisdictions, like the UK or US, the overriding power of legislation to modify the common law is now accepted as absolute.
For Bentham, and early legal positivist like John Austen, the theory that best explained law was the command theory. Law is what the sovereign commanded. Bentham is a progressive. He is thinking these laws are going to be reforming society, and these progressive reforms will not be subject to attack. Benthamite thinking infects municipal, state and federal governments to this day. The changing in wording of laws and regulations, and their ever increasing length and number, are invariably justified for their utility. Elected officials tinker with society, with the sale of property, with rental controls, with parental rights, the criminal law and constitutional reform, always understanding that by changing words, they can magically change people, change society. The are Benthamites, believing in progress with the dogmatism of a Calvinist’s fatalistic belief in predestination.
The main consequence of legal positivism is an incredible increase in unchecked state power. Legal positivism represented an unprecedented centralizing of lawmaking authority into the paws of state agents, the likes of which had never been seen before. Rome ran an empire with relatively few laws, leaving most matters to be dealt with locally and to incremental growth through the decisions of the courts and writings of the jurists. Legal positivism was the legal theory that paved the way for the modern total state.
Bentham was a utopian rationalist and imagined that bad laws would be identified, because people are rational. These liberal Enlightenment ideas persist, such as the notion that a bad law will lead the people to elect better representatives who will then collectively act in the legislature to make necessary changes and adjustments, thus allowing progress towards a legal utopia to continue through a dialectical process. Bentham detested the judiciary but assumed judges could be controlled with written laws. The system usually works pretty well, in run-of-the mill-litigation. Any observer of the judicial system can see that we get fair decisions all the time. But judge’s retain enormous powers of interpretation as language is often indeterminate, no matter how high the page count of the army of technocratic legal drafters. The more political the case, the less control words exert on the judiciary.
The Benthamite assumption is of a rational course correction, as a substitute for natural law. This however is a tough pill to swallow in our times, where bad laws not only continue to be created, but persist and breed more bad laws. With each passing year, the meddling of the total state in our lives increases. Thinkers from the Enlightenment to their modern heirs failed and still fail to appreciate or anticipate the relationship between legal positivism and power; the way power tends to preserve and perpetuate itself, shielded by layers of bureaucracy. We see this mirrored in the explosion of laws, both their number and length. We see this is the power of the executive branch, delegating to itself with a few words in a regulation vast amounts of discretionary power through the simple technique of delegated authority. We see this in the creation of vast administrative systems that operative to the exclusion of most judicial oversite, effectively rewriting the traditional right of the aggrieve to a trial. Examples include workers’ compensation regimes, human rights tribunals and no-fault systems.
As noted above, Montesquieu and the principle of checks and balances, which was a model for the US constitution, envisaged power contained by pitting executive against the legislature overseen by the judiciary. This has proven both simplistic and largely ineffective. Such systemic checks completely ignore the checks and balances that existed before the Enlightenment in a system where law is not concentrated solely in the state. These checks and balances have now been abolished.
Legal positivism has many proponents, often with dramatically different ideas on what it is. There do seem to be three main externalities that characterize it: the social thesis, the separation thesis and the thesis of social efficacy.7 The social thesis is that what is law and what is not is a matter of social fact, a human artifact, with criteria that are psychological, pragmatic, economic and even esthetic. The separation thesis is that there is no necessary connection between law and morality. The thesis of social efficacy says that the validity of law presupposes that law is socially efficacious; that citizens obey it and the state enforces it.
Otherwise, we have the three persons of the same state purporting to impose checks and balances on its one nature. We see how this works and how state power is propped up, not curbed by this system. The British Columbia Judiciary declared itself fully vaccinated with six cases concerning the mandates still before it, then dismissed them all. Authoritarian regimes, especially in times of crisis real or imagined, take full advantage of positive law theory. The fact laws are arbitrary, unfair, cruel or immoral is of no consequence, unless the regime is protecting its own interest.
States now produce, almost spew laws. We are a long way from people’s code you can hold in your hand. The Patriot Act in the US, Public Law 107-56, is expanded the powers of federal law enforcement agencies investigating cases that involve foreign intelligence and international terrorism. It is 131 pages in length and it is divided in 1016 different sections. In Canada, laws to ban firearms are cut and pasted from Google searches, resulting in one notorious case of the Trudeau government banning a coffee shop with a name that sounded like a firearm. But no one questions this was a law.8
Another tendency is to include within laws, long preambles setting out the state’s narrative of the facts, whether true or not, followed by the law itself.9 Laws are now both the is and the ought. The facts are what the state says they are, bootstrapping the truth. In the popular imagination, words in legislation and in judicial pronouncement have almost a sacred quality. This is what Bentham criticized natural law for doing. We have come full circle. Legal positivists wanted to separate law from morality. Morality fed the law, which the reformers regarded as an impediment. Now, come full circle, morality is derived from the rootless positive laws. Not only has legal positivism vastly increased the power of the state. It has also increased the power of words.
Remember the old limitation, about Parliament not having the power to make a man a women. There is certainly no such limitation today. The end place of legal positivism it seems is that the words of statutes or the pronouncements of judges are now capable of changing reality itself.
If you ask around, whether, for example, a man can marry a man, or a man declare herself a woman, the answer you will invariably hear is, ‘of course’. Although this may be justified with banalities about higher order rights, if pressed the speaker will eventually tell you that this is so because the Supreme Court has so affirmed, or Parliament has passed a new law. This is an extraordinary concession to mere words.
In fully understanding the success of the Liberal or progressive or Woke march through history and society, and the enormous success in spreading the gospel of gender fluidity and of the supremacy of self over any natural limitation, it is critical to understand the role of legal positivism and its way of seeing the law. This underlying conception of what the law is was in my view critical to the near total triumph of the modernist reconstruction of the world.
“The term "trias politica" or "separation of powers" was coined by Charles-Louis de Secondat, baron de La Brède et de Montesquieu, an 18th century French social and political philosopher. His publication, Spirit of the Laws, is considered one of the great works in the history of political theory and jurisprudence, and it inspired the Declaration of the Rights of Man and the Constitution of the United States. Under his model, the political authority of the state is divided into legislative, executive and judicial powers. He asserted that, to most effectively promote liberty, these three powers must be separate and acting independently”. Click here.
Even Roman law recognized that laws had to be obeyed, even if you didn’t agree with them. Early Roman author Tertullian wrote, “it is our duty to obey a demand of God [or the state]”, which some authors suggest is an early formulation of the command theory of law (Shaw, J.J., “Jurisprudence (3rd Ed.) at p. 66.
The Idea of Law, Lloyd, D. (Pelican, 1981) p. 95-109
Cambridge Companion to Legal Positivism, ed. Spaak, T. and Mindus, P. (Cambridge, 2021) at pp. 64-65, 73
Cambridge, supra at 6 et seq.