The Problem with Legal Positivism

April 16, 2013 § Leave a comment

Here is a reductio ad absurdem for legal positivism.

For legal positivism, there are certain sources of law (e.g., kings, legislatures, judges). Whatever emanates from these sources and satisfies the required formalities is law.

Suppose we have a king who has the authority to make law. The king is a source of law. Whenever he puts his seal on a piece of paper, the content of that paper becomes law. The seal is a formality that the king has to satisfy to make law.

Suppose further that the king writes the following on a piece of paper: “John Smith must pay $100 to Jane Doe”. And then the king puts his seal on the paper. Is this a law? I don’t think so. It seems more like a command or order to me. At a very minimum laws must be general and abstract rules that do not name particular persons. To be a law, a thing must have certain characteristics or qualities. Otherwise, it’s just not a law. One of these characteristics is generality or abstractness.

Legal positivism, though, must say that this command to John Smith is a law. This seems to me to be a reductio of legal positivism.

Don’t get me wrong. I understand the legal positivists’ concern about saying, like natural law theorists, that a bad law is no law at all. This would have the equally absurd consequence that there are some “laws” out there right now that everyone in the legal community (judges, lawyers, legislators, teachers, etc) take to be valid laws, but are actually not. It is an absurd consequence of a legal theory if it is in principle impossible to know what the law is . I agree with the legal positivists that you want to be able to say that a law that allows slavery is morally reprehensible but it is still a law. This concern does not apply to my argument. The necessary conditions for law (such as generality) are so basic that I don’t think it would even cross the mind of legislator to attempt to pass such “laws” and no one in the legal community would mistake such things for real laws.

This is furthermore not Fuller’s argument. Laws do not need to  fulfill all of his criteria in order to be laws. I can concede that a retroactive law is still a law, just a bad one. Nevertheless, laws must at least be general in order to be laws. Perhaps they also have to fulfill some other necessary conditions, but it’s enough for my purposes that there is at least one necessary condition for a law to be a law that does not depend on its sources. This implies that legal positivism is wrong because legal positivism takes the sources to be necessary and sufficient conditions for law.

This is such a simple argument that I must be missing something. Please comment. Does anyone not share my intuition that a command such as “pay so and so $100” coming from the proper authority and fulfilling the necessary formalities is not a law?

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