Examples of Legal Positivism [SK]

One more thought before I get back to vacation mode.

Though somewhat dated, John Noonan’s A Private Choice provides a very helpful overview of what legal positivsm looks like. One of Noonan's major themes is the clash between traditional American jurisprudence (grounded in natural law and natural rights) and that of Austrian jurist Hans Kelsen (the father of legal positivism in post 19th century America).

Anyone reading Noonan's book understands immediately that Dr. Dobson is no legal positivist on the order of Kelsen.

Noonan begins with a little history. Traditional American jurisprudence, grounded in the Declaration of Independence, held that government was not an absolute sovereign whose fiat creates rights. Rather, human beings exist prior to the state and have certain natural rights simply because they are human. Prior to the 1960s, the courts more or less upheld the traditional model.

For example, in Pierce v. Society of Sisters (1925) the Supreme Court declared unconstitutional an Oregon law requiring that children be sent to public school. “The child,” wrote Justice McReynolds, “is not the mere creature of the state.” The parents had an inherent right to determine their child’s education—and that right was not a mere creation of the state!

Later, in Loving v. Virginia (1967), the Court declared unconstitutional a Virginia statute forbidding interracial marriage. Chief Justice Warren: “Under our Constitution, the freedom to marry, or not to marry, a person of another race resides with the individual and cannot be infringed on by the State.” The right to marry exists prior to the state and is not dependent on it.

By the late 1960s, however, the traditional model was crumbling under Kelsen's brand of legal positivism. For Kelsen (1881-1973), the legal order is the source of all rights. “The physical person is, thus, no natural reality, but a construction of juristic thinking.” That is, the state defines who is and is not a person, who does and does not have rights. If the state says you are not a subject of rights, you don’t exist.

Kelsen has dominated court decisions on abortion since the early 70s. In a New York state case--Bryn v. New York City Health and Hospitals, 1972-- Judge Charles Breitel wrote that although the unborn in the womb were “human" and “unquestionably alive, it is not true that the legal order corresponds to the natural order.” Who was a legal person was for the law, not biology, to say. Justice Adrian Burke, dissenting, invoked Declaration of Independence to argue that all men are created equal with fundamental liberties that precede the state and arise from a source superior to it. Few listened.

In Planned Parenthood v. Casey (1992), Justices O’Connor, Kennedy, and Souter announced (in their famous “mystery passage”) that, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” That is, human nature is not fixed, but determined subjectively. But if that is true, there can be no fixed rights that arise from that nature, including a fixed right to an abortion. So why can’t a future Court just arbitrarily decide that women don’t have a right to an abortion? The Court didn’t say.

So what are left with? The Court has affirmed the right of a person to define his own concept of existence, the meaning of the universe, and the meaning of human life. But, writes Hadley Arkes, “was there any reality or truth attaching to him? And what was there about him that commanded the rest of us to respect these decisions he reached about himself and the universe?” Why can’t we just make him up to be someone who has no rights if that fits our own concept of meaning and human life? In short, the Court’s mystery passage assumes the very thing it denies: By demanding that we respect a person’s judgement about human life and the meaning of the universe, the Court assumes that the human being in question actually exists as a rational agent, whether my own concept of the universe admits him or not.

Noonan sums up the danger this way: Your rights flow from your human nature. Yet not one of those rights is secure if power rests with nine people in robes to simply define you out of existence.

Again, can anyone please tell me where Dr. Dobson has ever said the law should define who is and is not a human being with rights?

One final thought. Prior to Kelsen, the distinction between natural and legal rights came to a head in the famous Lincoln/Douglas debates. As Arkes points out, the debates centered on this question: Were the rights mentioned in the Declaration of Independence natural ones or were they merely the creation of positive law? Lincoln argued for the former: The claim “All men are created equal” meant that no man by nature is the ruler of another man in the way man by nature rules a dog. If the slave is a man, those same rights found in the Declaration (including the right to liberty) apply to him as they do the white man. In short, the slave was a human being with certain rights that spring from his nature and those rights hold across time and place. Because they are present whenever beings with a human nature are present, neither government nor popular opinion could legitimately deny them. Douglas took the latter position, suggesting that who was and was not a bearer of rights depended on popular sovereignty. Unlike Lincoln, he acknowledged no truths grounded in the nature of human beings that would hold across time and place. Instead, we only have those rights granted through positive law. Southern states did not count slaves as bearers of rights and that fact alone settled the matter.

Nevertheless, Lincoln--that great advocate of natural rights and liberties--worked incrementally to limit the evil of slavery in his quest to preserve The Union. Critics of Dobson may think Lincoln mistaken on that point, but it's clear the latter was no legal positivist.

Neither is Dobson.