NARRATOR: Thanks for joining this episode of the No. 86 lecture series, where we discuss classical and modern Jurisprudence. Today’s episode features Eric Claeys, Professor of Law at Antonin Scalia Law School at George Mason University. In his scholarship, he studies theories of natural law and natural rights and their implications in property law. Professor Claeys’s main teaching interests include Property, Torts, Jurisprudence, and Intellectual Property. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. PUBLIUS: Professor Claeys, where did “positivism” come from? What does it mean to be a positivist in jurisprudence? ERIC CLAEYS: Unfortunately, positivists and non- positivists don't agree on what the lines of division are, so I'm going to give the accounts of the two different sets of antagonists. Positivists hold that the only thing one needs to know about a directive to know whether it's a law, is to know whether it's been accepted, whether it's been positive. And for positivists, it is interesting and important to know whether a directive is a just directive or unjust directive, but directives being just or unjust has no bearing on whether it is in fact, a law. All one needs to know to know whether a directive is law, is to know whether it's been accepted by the right people, in the right authorities in a community. Most non- positivists agree with positivists that directives need to be accepted or positive in order to be law. Non- positivists insist that there's another feature that's necessary to law. Law has some tie to justice, some connection to justice. And so, one doesn't know all the things one needs to know about a directive and one doesn't know all the things one needs to know to know whether a directive's law unless one has some account of whether the directive is a just directive. Positivism means a lot of different things in different contexts. In moral philosophy, positivism is a view holding that beliefs about morality are local to particular people or to particular communities; there are not principles of morality that can transcend different communities. In analytical philosophy of law, positivism is a thesis saying that the most important thing, or the only thing one needs to know about a directive is to know whether people in that society accept the directive as being law. PUBLIUS: Can you give us some more historical context for how positivism arose? What predominant theory preceded it? ERIC CLAEYS: Leaders and teachers assumed that principles of natural Law provided a solid foundation for life throughout the Middle Ages, the sixteen hundreds and the seventeen hundreds. But in the seventeen hundreds, things started to change. There were political theorists and moral theorists throughout the sixteen hundreds who had raised questions about natural law, and by the early seventeen hundreds, you started to see theorists, scientists, who were proposing theories of government that were consequentialist or they were utilitarian. And those theorists doubted that there were principles of natural law, and they thought that it was better to think about what just policy required by thinking about what was good for a community, and what was good in terms of the advantage of the utility of the people in the community. And there was a critical mass of those people by the 1770s in England, and once there was a critical mass of utilitarians, Utilitarians started to write, teach, make scholarly articles, and make arguments in public policy, insisting that their view was presumptive of the preferred way to think about policy, and challenge the people who didn't come at issues of public policy, the way they did to defend themselves on utilitarian grounds. Blackstone did a wonderful thing by bringing together all the English common law, and restating it in one place. Once all the common law was there, someone looking at all that law at the end of the 18th century might look at and go, are all of these principles really good principles to be applying now? Do we need all of them now? You can go through Blackstone's commentaries and learn about things like the hereditament of estover, and about advowsons and about lots of different prerogatives of clergy. And those, and lots of other details might have seemed to lawyers and leaders in England, at the end of the 18th century as obsolete. And so there was a tendency among intellectuals, and lawyers, and other writers toward the end of the 18th century in England to think, now that we know what the law is, thanks to Blackstone and a lot of Blackstone's contemporaries, now we can ask whether a lot of this law that's now on the books is deadwood and we ought to reform the law to bring it up to date. So when intellectual trends changed in England, people came to see law differently. Natural lawyers saw law as an instrument of reason, and it's something that's discovered, and law tended to emerge gradually over a long period of time. And for lawyers in this tradition, the common law was a very reasonable field of law, and the common law was at once reasonable, consistent with natural law. It had authority because it been customary from time immemorial. But if one thinks that lots of parts of the common law are kind of analogous to appendices, they're vestiges of an old time, then one might be skeptical that the common law ought to be the main source of law. And going back to ideas of basic political theory, if one is a natural lawyer, one sees law as kind of an extension of human morality, and if one's a natural lawyer, one sees law as something that's helping people in carrying out built in human ends in their social lives. And so law is just a natural extension of human organization, human sociability. If one's a utilitarian, utilitarians reject the idea that people have ends. There are certain goods that people have individually and collective, but these goods are things that people can choose, more than they're ends that people have to pursue. And so if one's a utilitarian, one's more skeptical that law is something that helps people accomplish their own end, and communities ought to have more discretion and free agency to pick the goals that they want to pick. And when these two trends come together, this trend towards law seeming something more customary to law seeming something that can be chosen, and laws being an instrument for people to realize their ends to law being an instrument that helps promote utility; one ends up saying, we want an understanding of law theoretically and analytically that makes it more clearly be as much of a tool as a chair or a hammer is. PUBLIUS: Who first promoted positivism? Or what thinkers are most identified with this theory? ERIC CLAEYS: The two thinkers who deserve pride of place for bringing positivism in as a serious alternative in jurisprudence are Jeremy Bentham and then John Austin. Bentham deserves credit for negative work, he did the work to lampoon, ridicule, and make seem unpersuasive Blackstone. And Austin introduced the first positivist account of law in the English tradition. Bentham was a political thinker and a policy entrepreneur. Bentham wanted to see England reform all its laws, he wanted to see Parliament write lots of statute to make the law through statutes and to get rid of the common law. And he proposed this more forcefully and comprehensively in his book, A Theory of Legislation than anywhere else. And the first part of the theory of legislation is a polemic against Blackstone's Commentaries. The theory of legislation was written 1776, Blackstone penned his commentaries from 1766 to 1770, andBentham started where Blackstone started.Bentham took Blackstone's definition of law as a rule of civil conduct made by the supreme power, commanding what's right and prohibiting what's wrong; and he took Blackstone's mention that things like laws that are not consistent with the natural law have no validity. And he also took a passage from the fourth book of Blackstone's commentaries. In a treatment of a crime, Blackstone had assumed in passing that the laws of England were just in most or all particulars, and Bentham took all those passages of Blackstone together, and criticized Blackstone. Bentham argued that Blackstone's account of law was too conservative. It tended to conserve in place the law that was in effect, and he took the quote from the fourth book of Blackstone's Commentaries to say Blackstone was assuming all of English law was just as it was.Bentham drew the inference that Blackstone would object to there being any change to the law if all the laws of England were just as they were, and any change would make them unjust, and any law that's unjust has no validity, then there was no way for reformers in parliament to reform the common law to make it better. And so Bentham criticized Blackstone. He thought that it was preposterous for Blackstone to say that all the laws of England were just. He thought it was preposterous for Blackstone to say that laws do not have validity in positive law unless they are just consistent with the natural law. Bentham used that critique then to introduce an important distinction. Bentham criticized Blackstone for running together two different ways someone might look at law. One of those was the view of the censor, and the other was the view of the expositor. The expositor is the person who wants to know what the law is. The expositor doesn't care whether the law is a good law or bad law, he just wants to know what the law is. The censor is the person who thinks has strong opinions about what the law ought to be, and the censor takes whatever the account is of what the law is, and then says that's a good law or a bad law. And if it's a bad law, the censor then proposes a reform. The natural law account makes custom seem a kind of law. And common law is a kind of custom. It's law that's been discovered by judges, and the grounds for the discovery are two; that a principle seems reasonable, consistent with natural law; and a particular practice that seems reasonable in this way has been followed for a long period of time by a lot of different lawyers all working together. And if it seems natural, sorry for the repetition, to move from morality to judge- discovered law this way, one doesn't need a lot of law made by legislatures. If one thinks that people need to make a lot of arbitrary choices when they take principles of morality and apply them, one needs legislatures to do a lot more work than Blackstone seems to give credit for. PUBLIUS: You also mentioned John Austin. How was his work similar to or different from Jeremy Bentham? Were they contemporaries? ERIC CLAEYS: John Austin was an English professor and at the end of the 18th century and the beginning of the 19th century, English academic philosophy took very seriously the idea that one could analyze things, and define things without getting deep into difficult, normative issues about whether these things are just or unjust things. Since the time that Austin came to prominence, there's been a rich tradition in English philosophical work of keeping separate the study of normative issues and the study of analytical issues. And John Austin was one of the early analytical theorists in England, and Austin trained focus on law, and he tried to analyze law, and he tried to offer us a systematic account of law as a positive phenomenon. Austin agreed entirely with Bentham that the natural law tradition had run together too much the question whether a directive is a law and whether directive is a just institution.Austin agreed entirely with Bentham's distinction between looking at law as the sensor in looking at the law as the expositor. Austin's way of expressing this, his quip was the existence of law is one thing, it's merit or demerit is another. And so Austin then was trying as an analytical philosopher to offer a satisfying analysis. He was trying to introduce a satisfying concept of law that helped somebody to identify whether a particular directive was a law or not. The slogan version of his account, is the Command Theory or the Imperative Theory of Law. It's a major, it's a defining theme for positivists that there ought to be a separation between what law is and whether a law is a good law. Austin's account of law is one positivist account. Most positivists today have moved past it. But they recognize that Austin was the first person in the English speaking world to offer a really systematic positivist account of law. Austin gets credit for his soundbite that the existence of law is one thing, it's merits or demerits another. Austin's not the first person to separate is and ought, Hume had done this already, but Austin is an academic writing after Hume, and he's swimming in the same waters, and I think he agrees with Hume that there is and ought to be a separation between is and ought. And I think that one of the reasons that you see the analytical movement take off in England at the beginning of the 19th century is there are lots of philosophers who are persuaded that there is an important separation between is and ought, and they think that, people can do valuable work clarifying what social concepts are descriptively, and trying to bracket away tougher questions about when social concepts are justified and how they ought to apply. Austin offered the most famous example of what are called the command theory of law. Austin argued that a law consists of a command, and the command must be issued by a sovereign, and it must be understood to be a command by people who are the subjects of the sovereign. And he associated with his command theory, or he assumed it was necessary for a law to be a command, something was a command to the extent that it was backed by penalties that the sovereign instituted, and people knew that a sovereign was a sovereign because the people were habituated to obey the directors of the sovereign. This resembles Blackstone's account and Thomas's account in that there's a question whether a directive was, made by the community or made by people in authority, and whether the directive's been perceived as a directive by the people who are the law's subjects, but this command, this account has nothing in it about whether the directive is a good directive, a bad directive, a just directive, or an unjust directive. Also, I think it's implicit in Austin's account that when you define law, you define law the same way that you give a definition for a triangle. If an object is not an object in a plane, it's not a triangle. If an object doesn't have three sides or three angles, it's not a triangle. So by analogy for Austin, Austin assumed that if his command theory could account for all the directives that we think of as laws, and could wash out all the ones that we think are not laws, and he assumed that something was either law or not a law, there were no shades of gray, no borderline, hard case laws. Austin's definition was new in two ways. It was new in what it left out, among all the jurors who subscribe to natural law principles, it was always understood that one or two of the definitional elements of law were elements that connected law to its tendency to be just. And Austin left justice out. Again, Austin was an analytical positivist and he assumed he could define, identify the things that made law positive, and if he defined all the elements that made law positive, he'd have a account that sufficed to define law, you didn't need an information about laws being just to know whether it was in fact law. And Austin's account was also new in that it offered a working definition in which law is understood as a command. Blackstone's account of law hinted in that direction, but I don't think it made the definition of lost standard fall on laws being a command the same way that Austin's did. PUBLIUS: So what are some examples of when something appears to be a law but isn’t actually a law? In particular, what kind of instances would a positivist say is a law but someone else might disagree? ERIC CLAEYS: Any definition of law is gonna run into problems with some cases. And in a natural law account of law, the hard case is going to be a extremely unjust law. One of the stock examples would be the Fugitive Slave Act. In the early 19th century, Congress enacted a bunch of laws that authorized federal officers to capture blacks in free states and bring them back to slave states if a slave owner could prove to the satisfaction of the courts that the black person was a runaway slave, that seems an unjust law. A positivist would say to a natural lawyer, surely you concede that this was a law, what does it add to whether or not the Fugitive Slave Act was a law that it was an unjust law? The natural lawyer would say back, when a theory of law has several functions, one of those functions is to help a lawyer see with sharper eyes whether a directive is law; but law is a social institution and it shapes people's expectations and their conduct. And so if people start to act in mistrustful ways, or weird ways because they intuit that a directive is unjust, a good account of law ought to explain why people act that way. So say that there's a directive, like a Nazi directive, and nobody wants to be the, the officer who's the one who turns the dial open so the poison gas goes into the gas chamber. A natural lawyer would say the person who's been ordered to turn the dial knows that this is a directive. The fact that he's reluctant and is looking to pass the buck off to somebody else is interesting. The person knows that this directive's unjust and probably knows it's unjust in a way that laws are just not supposed to be, and then the fact the person's avoiding things and groups of people are all trying to pass the buck to each other, that's interesting, and that's somehow tied to the idea that law is supposed to be just. And a natural lawyer would say, you positivists cannot account, for this behavior and connect this behavior to laws being law. You can explain that people are acting this way because they find the law immoral, but you're missing the fact that people are especially uncomfortable because the directive is supposed to be a directive of a certain kind, and this particular gas chamber order is not like that. Examples, like the Nazi gas chamber example, they do test the limits of positivism, but one has to be careful what the limits are. Again, the word positivist means things in different contexts. So if one's talking about morality, positivism is a view that, principles of right and wrong or local to particular communities, they're posited in particular communities. That's not the understanding of positivism that dominates when one's talking about law and jurisprudence. In law and jurisprudence, positive is a claim that to know whether a directive is law one only needs to know whether it's been accepted. So there are lots of people who accept that there are principles of right and wrong as an objective matter, who then say those principles of right and wrong do not in any way bear on whether a directive is law, you don't need to know whether a directive is a good, directive or a bad directive to know whether it's law. So lots of people who are positivists in jurisprudence discussion could be natural lawyers or objective moralists in some other sense. In an argument about jurisprudence, an example, like a Nazi extermination order, you don't score points against the positivists by saying you can't account for why that's a bad order. Positivists would say, I can, the reasons why it's a bad order have to do with moral philosophy, not analytical philosophy. In a debate as between a natural lawyer and a positivist in jurisprudence, the natural lawyer would say to the positivist, when a law is grossly unjust, people are less inclined to obey it. People are inclined to try to put off the obligations, to make other people accept them, and those facts are interesting, they're important, and they're tied up with the expectations people have of law. And you positivists cannot account in your theory of law for the ways in which people avoid or get squeamish around a grossly unjust law. And if the positivists were to say back, I accept that the law's unjust, for me, that's all moral inquiry, then the natural lawyer would say, it's not just morality. The morality requires law to be ordered in a certain way, and that order gives law a nature and a built in telos, and so when you're defining what law is, you have to account not only for the fact that it's been posited, you must also account for the fact that law's supposed to do certain things. It's supposed to realize the just understanding of the common good, and when a law breaks down on that, social order breaks down in funny ways. Positivists will say that whether law is just or not as a question of normative philosophy has nothing to do with the structure of law. The natural law would say no, the question about the justice of law and the question of structure are a package deal. The natural lawyers would say, you can't duck the question that way, like a hammer has a telos. The telos of a hammer is to be an object used to pound nails and an object that does not pound nails, with the shape of a hammer, that's a bad hammer. And that's interesting information about the hammer. And the telos of an animal is to survive and to procreate. And so an animal that doesn't survive or procreate is a bad instance of an animal, and law has a telos similarly. NARRATOR: Thank you for listening to this episode of the No. 86 Lecture series on Jurisprudence. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class! TRANSCRIPT - VERBATIM FOR YOUTUBE Thanks for joining this episode of the No. 86 lecture series, where we discuss classical and modern Jurisprudence. Today’s episode features Eric Claeys, Professor of Law at Antonin Scalia Law School at George Mason University. In his scholarship, he studies theories of natural law and natural rights and their implications in property law. Professor Claeys’s main teaching interests include Property, Torts, Jurisprudence, and Intellectual Property. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. Professor Claeys, where did “positivism” come from? What does it mean to be a positivist in jurisprudence? Unfortunately, positivists and non- positivists don't agree on what the lines of division are, so I'm going to give the accounts of the two different sets of antagonists. Positivists hold that the only thing one needs to know about a directive to know whether it's a law, is to know whether it's been accepted, whether it's been positive. And for positivists, it is interesting and important to know whether a directive is a just directive or unjust directive, but directives being just or unjust has no bearing on whether it is in fact, a law. All one needs to know to know whether a directive is law, is to know whether it's been accepted by the right people, in the right authorities in a community. Most non- positivists agree with positivists that directives need to be accepted or positive in order to be law. Non- positivists insist that there's another feature that's necessary to law. Law has some tie to justice, some connection to justice. And so, one doesn't know all the things one needs to know about a directive and one doesn't know all the things one needs to know to know whether a directive's law unless one has some account of whether the directive is a just directive. Positivism means a lot of different things in different contexts. In moral philosophy, positivism is a view holding that beliefs about morality are local to particular people or to particular communities; there are not principles of morality that can transcend different communities. In analytical philosophy of law, positivism is a thesis saying that the most important thing, or the only thing one needs to know about a directive is to know whether people in that society accept the directive as being law. Can you give us some more historical context for how positivism arose? What predominant theory preceded it? Leaders and teachers assumed that principles of natural Law provided a solid foundation for life throughout the Middle Ages, the sixteen hundreds and the seventeen hundreds. But in the seventeen hundreds, things started to change. There were political theorists and moral theorists throughout the sixteen hundreds who had raised questions about natural law, and by the early seventeen hundreds, you started to see theorists, scientists, who were proposing theories of government that were consequentialist or they were utilitarian. And those theorists doubted that there were principles of natural law, and they thought that it was better to think about what just policy required by thinking about what was good for a community, and what was good in terms of the advantage of the utility of the people in the community. And there was a critical mass of those people by the 1770s in England, and once there was a critical mass of utilitarians, Utilitarians started to write, teach, make scholarly articles, and make arguments in public policy, insisting that their view was presumptive of the preferred way to think about policy, and challenge the people who didn't come at issues of public policy, the way they did to defend themselves on utilitarian grounds. Blackstone did a wonderful thing by bringing together all the English common law, and restating it in one place. Once all the common law was there, someone looking at all that law at the end of the 18th century might look at and go, are all of these principles really good principles to be applying now? Do we need all of them now? You can go through Blackstone's commentaries and learn about things like the hereditament of estover, and about advowsons and about lots of different prerogatives of clergy. And those, and lots of other details might have seemed to lawyers and leaders in England, at the end of the 18th century as obsolete. And so there was a tendency among intellectuals, and lawyers, and other writers toward the end of the 18th century in England to think, now that we know what the law is, thanks to Blackstone and a lot of Blackstone's contemporaries, now we can ask whether a lot of this law that's now on the books is Deadwood and we ought to reform the law to bring it up to date. So when intellectual trends changed in England, people came to see law differently. Natural lawyers saw law as an instrument of reason, and it's something that's discovered, and law tended to emerge gradually over a long period of time. And for lawyers in this tradition, the common law was a very reasonable field of law, and the common law was at once reasonable, consistent with natural law. It had authority because it been customary from time immemorial. But if one thinks that lots of parts of the common law are kind of analogous to appendices, they're vestiges of an old time, then one might be skeptical that the common law ought to be the main source of law. And going back to ideas of basic political theory, if one is a natural lawyer, one sees law as kind of an extension of human morality, and if one's a natural lawyer, one sees law as something that's helping people in carrying out built in human ends in their social lives. And so law is just a natural extension of human organization, human sociability. If one's a utilitarian, utilitarians reject the idea that people have ends. There are certain goods that people have individually and collective, but these goods are things that people can choose, more than they're ends that people have to pursue. And so if one's a utilitarian, one's more skeptical that law is something that helps people accomplish their own end, and communities ought to have more discretion and free agency to pick the goals that they want to pick. And when these two trends come together, this trend towards law seeming something more customary to law seeming something that can be chosen, and laws being an instrument for people to realize their ends to law being an instrument that helps promote utility; one ends up saying, we want an understanding of law theoretically and analytically that makes it more clearly be as much of a tool as a chair or a hammer is. Who first promoted positivism? Or what thinkers are most identified with this theory? The two thinkers who deserve pride of place for bringing positivism in as a serious alternative in jurisprudence are Jeremy Bentham and then John Austin. Bentham deserves credit for negative work, he did the work to lampoon, ridicule, and make seem unpersuasive Blackstone. And Austin introduced the first positivist account of law in the English tradition. Bentham was a political thinker and a policy entrepreneur. Bentham wanted to see England reform all its laws, he wanted to see Parliament write lots of statute to make the law through statutes and to get rid of the common law. And he proposed this more forcefully and comprehensively in his book, A Theory of Legislation than anywhere else. And the first part of the theory of legislation is a polemic against Blackstone's Commentaries. The theory of legislation was written 1776, Blackstone penned his commentaries from 1766 to 1770, andBentham started where Blackstone started.Bentham took Blackstone's definition of law as a rule of civil conduct made by the supreme power, commanding what's right and prohibiting what's wrong; and he took Blackstone's mention that things like laws that are not consistent with the natural law have no validity. And he also took a passage from the fourth book of Blackstone's commentaries. In a treatment of a crime, Blackstone had assumed in passing that the laws of England were just in most or all particulars, and Bentham took all those passages of Blackstone together, and criticized Blackstone. Bentham argued that Blackstone's account of law was too conservative. It tended to conserve in place the law that was in effect, and he took the quote from the fourth book of Blackstone's Commentaries to say Blackstone was assuming all of English law was just as it was.Bentham drew the inference that Blackstone would object to there being any change to the law if all the laws of England were just as they were, and any change would make them unjust, and any law that's unjust has no validity, then there was no way for reformers in parliament to reform the common law to make it better. And so Bentham criticized Blackstone. He thought that it was preposterous for Blackstone to say that all the laws of England were just. He thought it was preposterous for Blackstone to say that laws do not have validity in positive law unless they are just consistent with the natural law. Bentham used that critique then to introduce an important distinction. Bentham criticized Blackstone for running together two different ways someone might look at law. One of those was the view of the censor, and the other was the view of the expositor. The expositor is the person who wants to know what the law is. The expositor doesn't care whether the law is a good law or bad law, he just wants to know what the law is. The censor is the person who thinks has strong opinions about what the law ought to be, and the censor takes whatever the account is of what the law is, and then says that's a good law or a bad law. And if it's a bad law, the censor then proposes a reform. The natural law account makes custom seem a kind of law. And common law is a kind of custom. It's law that's been discovered by judges, and the grounds for the discovery are two; that a principle seems reasonable, consistent with natural law; and a particular practice that seems reasonable in this way has been followed for a long period of time by a lot of different lawyers all working together. And if it seems natural, sorry for the repetition, to move from morality to judge- discovered law this way, one doesn't need a lot of law made by legislatures. If one thinks that people need to make a lot of arbitrary choices when they take principles of morality and apply them, one needs legislatures to do a lot more work than Blackstone seems to give credit for. You also mentioned John Austin. How was his work similar to or different from Jeremy Bentham? Were they contemporaries? John Austin was an English professor and at the end of the 18th century and the beginning of the 19th century, English academic philosophy took very seriously the idea that one could analyze things, and define things without getting deep into difficult, normative issues about whether these things are just or unjust things. Since the time that Austin came to prominence, there's been a rich tradition in English philosophical work of keeping separate the study of normative issues and the study of analytical issues. And John Austin was one of the early analytical theorists in England, and Austin trained focus on law, and he tried to analyze law, and he tried to offer us a systematic account of law as a positive phenomenon. Austin agreed entirely with Bentham that the natural law tradition had run together too much the question whether a directive is a law and whether directive is a just institution.Austin agreed entirely with Bentham's distinction between looking at law as the sensor in looking at the law as the expositor. Austin's way of expressing this, his quip was the existence of law is one thing, it's merit or demerit is another. And so Austin then was trying as an analytical philosopher to offer a satisfying analysis. He was trying to introduce a satisfying concept of law that helped somebody to identify whether a particular directive was a law or not. The slogan version of his account, is the Command Theory or the Imperative Theory of Law. It's a major, it's a defining theme for positivists that there ought to be a separation between what law is and whether a law is a good law. Austin's account of law is one positivist account. Most positivists today have moved past it. But they recognize that Austin was the first person in the English speaking world to offer a really systematic positivist account of law. Austin gets credit for his soundbite that the existence of law is one thing, it's merits or demerits another. Austin's not the first person to separate is and ought, Hume had done this already, but Austin is an academic writing after Hume, and he's swimming in the same waters, and I think he agrees with Hume that there is and ought to be a separation between is and ought. And I think that one of the reasons that you see the analytical movement take off in England at the beginning of the 19th century is there are lots of philosophers who are persuaded that there is an important separation between is and ought, and they think that, people can do valuable work clarifying what social concepts are descriptively, and trying to bracket away tougher questions about when social concepts are justified and how they ought to apply. Austin offered the most famous example of what are called the command theory of law. Austin argued that a law consists of a command, and the command must be issued by a sovereign, and it must be understood to be a command by people who are the subjects of the sovereign. And he associated with his command theory, or he assumed it was necessary for a law to be a command, something was a command to the extent that it was backed by penalties that the sovereign instituted, and people knew that a sovereign was a sovereign because the people were habituated to obey the directors of the sovereign. This resembles Blackstone's account and Thomas's account in that there's a question whether a directive was, made by the community or made by people in authority, and whether the directive's been perceived as a directive by the people who are the law's subjects, but this command, this account has nothing in it about whether the directive is a good directive, a bad directive, a just directive, or an unjust directive. Also, I think it's implicit in Austin's account that when you define law, you define law the same way that you give a definition for a triangle. If an object is not an object in a plane, it's not a triangle. If an object doesn't have three sides or three angles, it's not a triangle. So by analogy for Austin, Austin assumed that if his command theory could account for all the directives that we think of as laws, and could wash out all the ones that we think are not laws, and he assumed that something was either law or not a law, there were no shades of gray, no borderline, hard case laws. Austin's definition was new in two ways. It was new in what it left out, among all the jurors who subscribe to natural law principles, it was always understood that one or two of the definitional elements of law were elements that connected law to its tendency to be just. And Austin left justice out. Again, Austin was an analytical positivist and he assumed he could define, identify the things that made law positive, and if he defined all the elements that made law positive, he'd have a account that sufficed to define law, you didn't need an information about laws being just to know whether it was in fact law. And Austin's account was also new in that it offered a working definition in which law is understood as a command. Blackstone's account of law hinted in that direction, but I don't think it made the definition of lost standard fall on laws being a command the same way that Austin's did. So what are some examples of when something appears to be a law but isn’t actually a law? In particular, what kind of instances would a positivist say is a law but someone else might disagree? Any definition of law is gonna run into problems with some cases. And in a natural law account of law, the hard case is going to be a extremely unjust law. One of the stock examples would be the Fugitive Slave Act. In the early 19th century, Congress enacted a bunch of laws that authorized federal officers to capture blacks in free states and bring them back to slave states if a slave owner could prove to the satisfaction of the courts that the black person was a runaway slave, that seems an unjust law. A positivist would say to a natural lawyer, surely you concede that this was a law, what does it add to whether or not the Fugitive Slave Act was a law that it was an unjust law? The natural lawyer would say back, when a theory of law has several functions, one of those functions is to help a lawyer see with sharper eyes whether a directive is law; but law is a social institution and it shapes people's expectations and their conduct. And so if people start to act in mistrustful ways, or weird ways because they intuit that a directive is unjust, a good account of law ought to explain why people act that way. So say that there's a directive, like a Nazi directive, and nobody wants to be the, the officer who's the one who turns the dial open so the poison gas goes into the gas chamber. A natural lawyer would say the person who's been ordered to turn the dial knows that this is a directive. The fact that he's reluctant and is looking to pass the buck off to somebody else is interesting. The person knows that this directive's unjust and probably knows it's unjust in a way that laws are just not supposed to be, and then the fact the person's avoiding things and groups of people are all trying to pass the buck to each other, that's interesting, and that's somehow tied to the idea that law is supposed to be just. And a natural lawyer would say, you positivists cannot account, for this behavior and connect this behavior to laws being law. You can explain that people are acting this way because they find the law immoral, but you're missing the fact that people are especially uncomfortable because the directive is supposed to be a directive of a certain kind, and this particular gas chamber order is not like that. Examples, like the Nazi gas chamber example, they do test the limits of positivism, but one has to be careful what the limits are. Again, the word positivist means things in different contexts. So if one's talking about morality, positivism is a view that, principles of right and wrong or local to particular communities, they're posited in particular communities. That's not the understanding of positivism that dominates when one's talking about law and jurisprudence. In law and jurisprudence, positive is a claim that to know whether a directive is law one only needs to know whether it's been accepted. So there are lots of people who accept that there are principles of right and wrong as an objective matter, who then say those principles of right and wrong do not in any way bear on whether a directive is law, you don't need to know whether a directive is a good, directive or a bad directive to know whether it's law. So lots of people who are positivists in jurisprudence discussion could be natural lawyers or objective moralists in some other sense. In an argument about jurisprudence, an example, like a Nazi extermination order, you don't score points against the positivists by saying you can't account for why that's a bad order. Positivists would say, I can, the reasons why it's a bad order have to do with moral philosophy, not analytical philosophy. In a debate as between a natural lawyer and a positivist in jurisprudence, the natural lawyer would say to the positivist, when a law is grossly unjust, people are less inclined to obey it. People are inclined to try to put off the obligations, to make other people accept them, and those facts are interesting, they're important, and they're tied up with the expectations people have of law. And you positivists cannot account in your theory of law for the ways in which people avoid or get squeamish around a grossly unjust law. And if the positivists were to say back, I accept that the law's unjust, for me, that's all moral inquiry, then the natural lawyer would say, it's not just morality. The morality requires law to be ordered in a certain way, and that order gives law a nature and a built in telos, and so when you're defining what law is, you have to account not only for the fact that it's been posited, you must also account for the fact that law's supposed to do certain things. It's supposed to realize the just understanding of the common good, and when a law breaks down on that, social order breaks down in funny ways. Positivists will say that whether law is just or not as a question of normative philosophy has nothing to do with the structure of law. The natural law would say no, the question about the justice of law and the question of structure are a package deal. The natural lawyers would say, you can't duck the question that way, like a hammer has a telos. The telos of a hammer is to be an object used to pound nails and an object that does not pound nails, with the shape of a hammer, that's a bad hammer. And that's interesting information about the hammer. And the telos of an animal is to survive and to procreate. And so an animal that doesn't survive or procreate is a bad instance of an animal, and law has a telos similarly. Thank you for listening to this episode of the No. 86 Lecture series on Jurisprudence. 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