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The
Importance of Transcendent Law
A.
Positivism: The Root of Chaos
Q.
Although you oppose those who want to conjure up a culture war in
America and indeed throughout the world, you do seem to contrast two
inexorably conflicting visions of both the past and the future.
These seem to be the reliance on man as the source of truth and
justice, and reliance on God. These seem to be somewhat theoretical.
How do the differences exist in practice, and what can one do to
promote one versus the other?
A.
The core of all conflicts between or among visions is the role of
law. Does man create meaning and law for the universe and everyone
in it or does God? Is there a transcendent law or is all meaning and
law what the philosophers call positivist?
The vast majority of American law schools imbue their students with
the conviction that "transcendent law" is an oxymoran, and
that therefore the purpose of law is not justice but rather only the
stability of continuity in the sense of order for its own sake. The
present writer suffered through three years at Harvard Law School in
order to learn about "justice." Not once in those three
years did I even hear the word.
The
reason is quite simple. Harvard Law School and most of the thousands
of lawyers it has graduated during the past century are militant
legal positivists, following the powerful utilitarian system
developed by Jeremy Bentham and by the American utilitarian guru,
John Austin. The main building in Harvard Law School appropriately
is named Austin Hall, though the natural law school, perhaps best
epitomized by the 19th-century U.S. Supreme Court justice, Joseph
Story, is also recognized by a building named after him.(14)
Austin
argued that the principal distinguishing feature of a legal system
is the presence of a sovereign who is habitually obeyed by most
people in the society. In fact, law that is not enforced is not law.
In positivist international law, which replaced the jurisprudence of
the natural law theorists, Vittorio and Suarez, during the heyday of
European imperialism, whatever force can gain control over more than
half of a given territory has absolute legal authority to decide
what is legal and what is illegal within this territory. The
sovereign may "penetrate the corporate veil" of private
enterprise in order to control it, but no entity, human or divine,
has any authority over the sovereign state. In domestic property
law, the positivist maxim is that ownership consists in the right to
use, abuse, and destroy. Any effort to constrain this right is an
affront to the absolute sovereignty of the individual.
Positivism
as taught in American law schools is known as "the command
theory of law." It is the epitome of secular fundamentalism,
and has destroyed every civilization in which it took root.
"Positivism arose in opposition to the classical natural law
theory, according to which there are necessary moral constraints on
the content of law. The word 'positivism' was probably first used to
draw attention to the idea that law is 'positive' or 'posited,' as
opposed to being 'natural' in the sense of being derived from
natural law or morality." (15)
Since the sovereign, whether it be a king or a people, is by
definition unconstrained by any higher authority, Austin asserts
that constitutional law properly speaking is not law at all, but
merely "positive morality."
This
basically amoral approach, which denies the very existence of right
and wrong, came to dominate during the early twentieth century in
every American public institution, ranging from the local school to
the highest court in the land. Its impact can be discerned and felt
in almost every issue of conscience by the way this militant
secularism opposes traditional values and destroys the very basis
for consensus and stability in society.
The
denial of any transcendent source of law constitutes a denial of the
very roots of Western civilization and, indeed, of any true culture.
Legal positivism denies the long history that gave rise to the Great
American Experiment, and aims to eliminate the very possibility of
bringing the wisdom of tradition to public life and public policy.
a. Positivism: The Root of Chaos
b. Traditionalism: The Root of Cosmos
c. Culture War
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