Legal Positivism and the Attempt to Remake Reality

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Why did the United States Supreme Court reverse over 1500 years of legal tradition and create an almost unlimited right to abortion? Later judicial rulings extended the right through the third trimester of pregnancy if a doctor signed a statement to the effect that a woman’s physical and/or mental health is endangered. Even Western Europeans outside of the U. K. have been shocked by the breadth of U. S. abortion laws.

Why did a California court reverse thousands of years of tradition and support same-sex marriage (later the state legislature made a court ruling unnecessary)? Why did federal judges, who ruled like dictators over broad swaths of the South in the 1960s and 70s, force children to get up at 4 a.m. to go to schools many miles from their neighborhood to achieve “racial balance,” a social engineering scheme that has been a dismal failure?

The arrogance of judges who wish to remake reality in their own image is due, to a large extent, to legal positivism. This holds that law does not gain its legitimacy in being consistent with the natural law, but that laws are simply products of legislative or judicial action. St. Thomas Aquinas‘ eternal law, natural law, and positive law is whittled down to positive law alone. Legal positivism is consistent with the eighteenth century Enlightenment, or Age of Reason, in which Western Europe, and later the United States, believed that man could remake society according to his own reason and will. With the help of science, a new social order, “a new order of the ages” (novus ordo seclorem) would be created, a heaven on earth, would be created as man remakes nature in his own image. As Francis Bacon said in the seventeenth century, man will “hold nature to the rack,” pulling out its secrets, and by dominating nature, create technologies for the comfort of man. Ideologically this idea is opposed to the notion of a set natural law man should follow, either in science or in ethics. But exploiting nature is parasitic on a set order of nature, and thus science cannot fall into total positivism without destroying science. Ethics and law, however, were other matters as the nineteenth century’s machines ground on like clockwork. Man could exploit ethics and law for his own purposes, for reshaping society, and there is no set order of nature that applies to ethics and law. This view was enshrined in the work of U. S. Supreme Court Justice Oliver Wendell Holmes, Jr. (another contribution of New England cultural rot to the ruin of the United States). Holmes was influential in pushing a legal positivist framework that quickly became the dominant framework among U. S. judges–to the point that some liberals were claiming that Judge Clarence Thomas‘ acceptance of natural law disqualified him from serving on the Supreme Court. I wonder what the liberals would say about the noted scholar and judge, John Noonan, who accepts natural law and sits on the Ninth Circuit Court of Appeals. We have seen more than once that the public welfare may call upon the best citizens for their lives.  Justice Holmes was consistent with his positivist framework and appealed to the abstraction of “social welfare” to justify his position. In Buck v. Bell, 274 US200, 1927, Justice Holmes, in his majority opinion concerning the case of a woman ordered to be sterilized for being “feeble minded,” says, “It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.” Holmes’ attempt to justify sterilization appeals to the public good–it is a utilitarian appeal–and utilitarianism only makes sense in a moral and legal world bereft of a concept of natural law. If law is just a positive act of legislatures and judges, then any kind of action by the state can be justified for “social welfare” or “for the public good.” Natural law offers a constraint on the tendency to remake society by getting rid of people that society finds uncomfortable.  But without the restraint of natural law, the state can justify any use of power against individuals or groups as long as it can be justified in terms of the “general welfare.” Note the terminology used by the U. S. Constitution, which is more of an Enlightenment Doctrine than some of its conservative advocates claim. Given the presuppositions of the Enlightenment that were not removed by the latent Christianity of the founding fathers of the United States (and the more active Christianity of others), the turn to legal positivism was a logical turn–but a turn that has led to a further breakdown of American society and the dismantling of the ethics and laws upon which Western Civilization has depended since the rise of Christianity.