Introduction to Postivism as a Regime Ideology for American Legal Culture by Wittgenstein

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									Today’s Lecture:

Positivism

Number:

11

Lecture Organization: • Class Announcements • Review • The Decline of Sociological Jurisprudence • Introduction to Positivism • Implications of Positivism • Why Positivism Developed • Riggs v. Palmer
Time

Class Announcements

paper deadline -- Wednesday Exam grades -- Wednesday notes -- Wednesday; lectures 1-8. Hand written. 4-digit code

Class Announcements

Time

Reading -- United States v. Neal Homework -- Why does the majority say the result is compelled (necessary)

Questions?

Review

Examples of Sociological Jurisprudence -- speed traps, gay marriage, terror policies Problems of Sociological Jurisprudence Politicization of social science Judges don’t understand statistics Does empirical science have many universals? Law might be much more about order than truth … Rejection of Sociological Jurisprudence

Time
Holmes Explosion

Sociological Jurisprudence Positivism

(Progressive
Determinism)

Skepticism
Domination of American Legal Culture

Introduction to Positivism
The champ -- American legal culture is extremely positivistic -- You won’t be able to fully appreciate what I mean by that until a couple of lectures have passed

-- But positivism is going to be the central answer that American legal culture has for the Holmesian/Realist problem

Introduction to Positivism
Basic idea Getting rid of “natural law” -- to a positivist, all the heretofore attempts at “natural law” (as I define it) have been foolhardy -- there is no “natural law” -- there is no extra-textual authority. There is no law beyond that which can be read by the human eyes in printed law books.

There are no a-prioris, no god’s law, no purified law, no ideal law, no factually-perfected law, no NOTHING outside of what your eyes can read in a law book.

Introduction to Positivism
Basic idea Getting rid of “natural law” -- to a positivist, all the heretofore attempts at “natural law” (as I define it) have been foolhardy

My no “natural law” -- there isphrase: “cold, naked words”
-- there is no extra-textual authority. There is no law beyond The can is read by but printed legal printed that which Law be nothing the human eyes in words. law books.

There The no a-prioris, no god’sa nakedpurified law, no are Law is nothing but law, no command from the sovereign. ideal law, no factually-perfected law, no NOTHING outside of what your eyes can read in a law book.

Introduction to Positivism
Basic idea Why its called positivism Two ideas: -- “positivism” as distinct from “normativism”

(law is what it is; not what it should be)
-- the “positive law” is what is king…

Introduction to Positivism
Basic idea Why its called positivism Constitutional Convention (Political assembly) Legislative assemblies Courts The Positive Law is King (the focal point)

(a rule of law)

Introduction to Positivism
Basic idea the separation of morals from law

Time

-- heretofore, theorists have mistakenly assumed that law entailed justice -- this is a lie -- law does not entail justice. Justice is God’s problem. • Just as health is separate from medicine, so too is law separate from justice • if law does do “justice,” fine. But there is no requirement that law be just or moral before it is “law.”

Implications of Positivism
Getting Perspective Assume for the moment, that positivism is true: “law” is nothing but the commands of a sovereign, and that morality/justice are not prerequisites. International Law? U.N. / Security council

Question: Answer: Answer:
Question: Question:

a You Laws are produced as a No. IsCan the UNthe acting Again, no. such implications can have a treaty that Only make by Whatthere are some a thing “law?” Can the law? nation for thiscodifies intono governments. There is law. state’s government can state viewpoint? international Security Council sovereign do it. That’s the whatever towar? authorize only way it does global authorize

Implications of Positivism
Getting Perspective morality? Note: Nazis and Nuremburg

Time

The key defense of Nazi soldiers when being tried Question: Answer: for killing Jews was that they were just following Question: orders. How can you blame an individual who acts What culture, morality In a positivistic would be the moral only as the law commands?What was the defense) to (This is Question: thing the moral

thing to do if someone degenerates into rule following. People do is a tough one. when 1 “following This a quiz paying taxes come to only tookcommandasfrom What regard propriety minute after (Note, if law were a a each morality BECOME year are following (e.g., Warren does the deadline rules.” As long as Nazis expired sovereign, could you even try the you and holdon in a positivistic culture? the the day? 7th right rules, you are doingBeatty)? thing them responsible?)

Implications of Positivism
Getting Perspective Implication for judging

Question: For Gryffindore points, what Reading. What is theory say that does thisthe implication of this theory for judging is? What is judging in judging? a positivistic universe? (One word answer)

Question: Answer:

The old advertisement for judging • Gods will? • Sacred Traditions, Customs?

• Reason/Nature
• Logic? • Science?

The new advertisement for judging • Gods will? • Sacred Traditions, Customs?

• Reason/Nature
• Logic? • Science? Law = words Judging = reading

Remember this?

“law”

The New Humpty

Time

Question: Question: Why what judging actually is Is this do judges wear robes? (You will note that bureaucrats or should be? What exactly is don’t). Should they not wear judging? them any longer?

I can read and follow directions

Why Positivism Developed

Getting Perspective positivism and the administrative state -- It is important to understand positivism in its appropriate cultural/historical context -- people who study philosophy in a way that is unconnected to history do not properly understand it -- positivism is nothing more than the re-invention of early versions of formalism, only in a post-agrarian world that developed vigorous institutions. (let me explain)

Why Positivism Developed

Getting Perspective positivism and the administrative state

“Penn and Quill” Government
-- America through much of the 1800s did not have vigorous governing institutions -- For many years, legislators met part time -- there were not endless volumes and volumes of statutory law; large programmatic government programs, etc. -- for a while, courts played a larger role in the regulation of society than legislatures via the common law.

Why Positivism Developed

Getting Perspective positivism and the administrative state

“Penn and Quill” Government
-- America through much of the 1800s did not Law: Common have vigorous governing institutions • Crimes -- For many years, legislators met partProcedure • time • Divorce -- there were not endless volumes and volumes of statutory law; large programmatic government programs, etc. • Torts (injuries) • Property -- for a while, courts played a larger role in the regulation of society than legislatures via the common law. • Contracts

Why Positivism Developed

Getting Perspective positivism and the administrative state

The arrival of the administrative state
-- Over time, legislatures began to take over the regulation of common law subjects (and of everything else) -- full time legislatures develop. Committee systems develop. Positive law becomes more voluminous -- then, bureaucratization arrives. -- all of these government entities producing laws and regulations. All of this positive law is growing & growing.

On the Proliferation of Positive law:
Executive

Branch

Legislature

Courts

Administrative executive orders statutes Agencies precedent

rules

Four entities that birth some form of legality (positive law)
New Terminology: “Statutification” “hyperlexis” My favorite: LEGALISM

Why Positivism Developed

Getting Perspective positivism and the administrative state

The arrival of the administrative state
-- Here is the basic point (extremely important):

-- When America’s legal regime was agrarian, and Courts were doing more of the job of societal regulation, it was natural for the regime ideology to be in the classical form.
(compare: divine right of kings) -- courts as social organizations had to legitimize their orthodoxy.

Why Positivism Developed

Getting Perspective positivism and the administrative state

The arrival of the administrative state
-- In the new world with the arrival of modern, active government, a new regime ideology had to develop about who was the regulatory boss -- Hence, as state building and positive law grows, you see a culture that changes the explanation of its legal orthodoxy. -- law is no longer an a prior craft, or a craft that invents rules, it is a craft for IMPLEMENTING them

Early American History

Modern American History

Predominately agrarian society

Industrial, post-industrial Vigorous administrative state Legislatures and bureaucracies write the rules

No real administrative state
Courts play a larger role in rule creation

Regime that rationalizes the Court’s ability to INVENT solutions Classical Orthodoxy

Regime that rationalizes the Court’s role as an ADMINISTRATOR of rules (doing some else’s bidding) Hence, Positivism

Why Positivism Developed

Getting Perspective Positivistic culture (i.e.,legalism) -- one of the questions that must be asked is whether the active, administrative state has any (or should have) limitations in what it does to culture … for example

On the Proliferation of Positive law: The Domination of Legality in American Society: 1. What is a fumble in football?
Executive -- Do you need a Legislatureto tell you?Courts specialist Branch 2. How do we pick a college football champ?
Time

-- A formula? A rule? A machine? 3. The federal sentencing “guidelines” taxes? (explained later)
statutes 4. Codes for making war rules precedent Question: Administrative Agencies

-- Calculating punishment is like doing your executive orders

Is it possible New -- Is war no longer a circumstantial activity? have too “Statutification” “hyperlexis” to much law? Is it possible to Terminology: My favorite: LEGALISM have too many rules?

On the Proliferation of Positive law:
Time

The Domination of Legality in American Society: 1. What is a fumble in football?
Courts Legislature to tell you? -- Do you need a specialist Branch Executive American Legal Culture:

2. How do we pick a college football champ? -- A formula? A rule? A machine?

Administrative We live in a world where law is rules and politics is 3. The federal sentencing way we think of it. That if a “guidelines” discretion. This is the Agencies executive orders obeyed, itpunishment it is not doing your ruleCalculating is law and if is like it is politics. -- is Question: I want to suggest to you Is it possible to have too much that this is only the precedent product statutes rules 4. Codes for making war we law? IIs it possible to have too of the times in which live. also want to suggest that it is nothing but a many rules? New to youwar no “Statutification” cultural fad. Discretion “hyperlexis” -- Is not be longer a circumstantial activity? need Terminology: My favorite: LEGALISM

taxes? (explained later)

Riggs v. Palmer

Facts: -- Francis (grandfather) has a will. It leaves property to Elmer (grandson). -- However, Francis wants to change the will so that Elmer (grandson) will not inherit anything. -- To prevent this from happening, Elmer (grandson) murders the grandfather. Question:

What are the facts of this case?

Riggs v. Palmer

issue -- New York statute appears to allow the inheritance

“Simon Says”
NY Statute: N.Y. statute: “no will in writing, except in the cases hereinafter mentioned, nor any part thereof, shall be revoked or altered otherwise.” Question:

Should Elmer legal What is the inherit under the will? issue?

Riggs v. Palmer

Judge Gray -- sorry, “Rules Rule”

Question:

Should does Judge What Elmer inherit Gray say the will? under about this?

Judge Gray: “rules rule” They say that to permit the respondent to take the property willed to him would be to permit him to take advantage of his own wrong. … if I believed that the decision of the question could be effected by considerations of an equitable nature, I should not hesitate to assent to views which commend themselves to the conscience.
Note the distinction between law and equity in his vocabulary

Judge Gray: “rules rule” But the matter does not lie within the domain of conscience. We are bound by the rigid rules of law, which have been established by the legislature, and within the limits of which the determination of this question is confined. The question we are dealing with is whether a testamentary disposition can be altered, or a will revoked, after the testator’s death, through an appeal to the courts, when the legislature has by its enactments prescribed exactly when and how wills may be made, altered, and revoked, and apparently, as it seems to me, when they have been fully complied with, has left no room for the exercise of an equitable jurisdiction by courts over such matters. The Sovereign has spoken. We are only the word readers.

Judge Gray: “rules rule” … To the statutory restraints which are imposed upon the disposition of one’s property by will are added strict and systematic statutory rules for the execution, alteration, and revocation of the will, which must be, at least substantially, if not exactly, followed to insure validity and performance. … The capacity and the power of the individual to dispose of his property after death, and the mode by which that power can be exercised, are matters of which the legislature has assumed the entire control, and has undertaken to regulate with comprehensive particularity. We only exist to do someone else’s bidding.

Judge Gray: “rules rule” … To the statutory restraints which are imposed upon the disposition of one’s in mind: by will are added strict and Keep something property systematic statutory rules for the execution, alteration, and 1. There is no constitutional issue being raised here! revocation of the will, which must be, at least substantially, if -- not saying insure validity and “equal not exactly, followed tothat “due process” or performance. … protection” is violated The capacity and the power of the individual to dispose of his property after death, and the modeargumentsthat power can 2. Only raising common law by which be exercised, are matters of which the legislature has 3. the will note how and different from Bonham. assumed You entire control,this ishas undertaken to regulate with comprehensive particularity. -- there is no right reason that will control the acts of Parliament, this time.

- The legislature controls, unless a provision in the social contract says otherwise.

Riggs v. Palmer

Judge Earl -- “Justice” rules.

Question: What does Judge Earl say about this?

Judge Earl: “justice rule” What could be more unreasonable than to suppose that it was the legislative intention in the general laws passed for the orderly, peaceable, and just devolution of property that they should have operation in favor of one who murdered his ancestor that he might speedily come into the possession of his estate? Such an intention is inconceivable. We need not, therefore, be much troubled by the general language contained in the laws.

Judge Earl: “justice rule” What could be more unreasonable than to suppose that it 1. the legislative intention in ignore a statute the result wasHis basic point is that we canthe general lawsif passed for is orderly, peaceable, and just devolution of property that the manifestly unjust. theyBut he first tries to justify this by of one who the 2. should have operation in favor saying that murdered his ancestor that he might speedilyjust result. the possession of legislature would approve of a come into his estate? Such an intention is inconceivable. We need not, 3. However, much problem: by the what they wrote. therefore, be he has atroubled that is notgeneral language contained inhavelaws. -- You the to pretend that you can see inside the minds of others in order to make this argument -- And you have to assume that other bad policy consequences of your desired rule (e.g., such as fraud) would have been set aside. -- He’s not really doing their intention; he’s doing their work (fixing something for them)

Judge Earl: “justice rule” Besides, all laws, as well as all contracts, may be controlled in their operation and effect by general, fundamental maxims of the common law. No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime. These maxims are dictated by public policy, have their foundation in universal law administered in all civilized countries, and have nowhere been superseded by statutes.

Judge Earl: “justice rule” Besides, all laws, as well as all contracts, may be controlled in Note several things about his general,point: their operation and effect by second fundamental maxims of the common law. No one shall be permitted to profit by his 1. fraud, or to take advantage of his own wrong, or to and own It is old school natural law (borrowed from England)found adopting Bonham’s viewpoint any claim upon his own iniquity, or to acquire property by his own crime.fundamental maxim dictateddown by the Elders: (The These maxims are passed by public policy, have their foundation in universal law own wrong”) in all civilized “No one shall profit from his administered countries, and have nowhere been superseded by statutes. 2. Note also that this kind of logic RATIONALIZES the ability of the Courts to regulate and make rules (that’s what it was there for; that’s its function.)

3. This view was present somewhat in 1800s, but I think it was never a dominant impulse. The more dominant would be that American constitutionalism wants constitutional arguments, not Bonham-type arguments.

Riggs v. Palmer

Time

discussion

Question: Question: Question: Question: Did Judgeyou deciding Are Gray or Should judges follow EarlWhich upon what is in use come? HowideologyWhat do based judge is right law? when they decided, on? you base it the case? legally required? and was that bad?


								
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