Thanks for joining this episode of the No. 86 lecture series, where we discuss classical and modern Jurisprudence. Today’s episode features Joshua Kleinfeld, Professor of Law at Northwestern Pritzker School of Law. Professor Kleinfeld teaches and writes in legal and political philosophy; legislations and statutory interpretation; and criminal law and procedure. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. What is positivism? Where did it come from? Positivism became dominant in English speaking countries, with Austin's book, The Province of Jurisprudence Determined. That's an interesting book. Its basic take on law is twofold. It's the separation thesis, the idea that there is no necessary connection between law and morality, between what the law is and what it ought to be, and what Austin called command theory. Command theory was the idea that what a law basically is, is a command of the sovereign backed by sanctions. So he put three pieces together; command, sovereign, and sanctions. Think of it as like a thou shalt or thou shalt not. Thou shalt pay their taxes by April 15th. Thou shalt not steal from thy neighbor. And if you do, and this is the government talking, we'll arrest you. That was Austin's basic picture of the law, the marriage, and that was his theory of positivism, it's the marriage of the idea, that a law is an order, an imperative of the sovereign backed by sanctions, with the idea that those orders might be good or wicked. It doesn't matter, they're still orders of the sovereign, they're still orders of the state. So, it was the marriage of command theory with the separation of law and morality. Along comes H.L.A. Hart. And Hart says, command theory can't be right, because it can't account for legal obligation. And legal obligation is something positivists, like natural lawyers, should accept. And so Hart set himself the task of making a new beginning. He demolished command theory, but he still believed in the separation of law and morality. He still upheld the proposition that there's no necessary connection between what the law is and what it ought to be. And so he developed an understanding of what law is based on the conventions that prevail among legal officials, for understanding what is binding law. As he saw it, officials of the state have a sort of implicit and conventional social rule, for saying; a law review article, that's not law; a New York times op-ed, that's not law; a statute, that's law; a case from the Supreme court, that's law. And he called that conventional understanding among legal officials, a quote rule of recognition. And in his hands, positivism's definition changed. No longer was it the separation thesis, the separation of law and morality plus command theory. Now, it was the separation thesis, plus the rule of recognition. The latest iterations of legal positivism have continued to develop this definition. So from Scott Shapiro, you have the understanding of positivism, in which for positivists, as he puts it, legal facts are determined by social facts alone. Legal facts, that is what is true as a claim of law, like stealing is or is not forbidden, depend purely on social facts, like what officials of the state think is allowed, and not at all on moral facts, whether it's good or bad to steal. I think that formulation: legal facts are determined by social facts alone, is philosophically quite incisive, but also quite obscure. My own take on it is that what unifies this tradition, is actually a sort of picture of the law that makes sense historically. It's the picture of the law, as a sort of issuance of a government, a certain kind of edict of the state. When you have a conception of law, not as the customs of the community, or the sense of justice, or just the prevailing organization of a community, but as an edict of the government. You start focusing on legal officials, on how they behave and what they believe in, as a matter of their social convention. You might start like Austin, focusing on their capacity to enforce their norms. And you might think that since the legal officials could be doing something good or bad, wicked or rightful, there's no necessary connection between law and morality. But it all starts from a picture. And the picture is law is the edict of a state. So my definition of positivism, my historicized definition of positivism, is that the positivist believe that law is edicts of a government, full stop. That makes sense but doesn’t sound especially compelling, especially in comparison to the extensive Natural Law tradition. How did positivism become a dominant theory in Jurisprudence? Why did positivism conquer? One of the interesting things about reading Austin's Province of Jurisprudence Determined is that there are almost no arguments in his book. It's a long book. It's a little bit exhausting to read, and it mostly consists of him sorting things into categories. He says, "Some people say, 'the laws of fashion are laws,' but these are not true laws, these are just laws as a matter of opinion. And then people speak of scientific laws, but these are not true." So he's sorting things into their appropriate categories. And in the course of his sorting, he makes some pretty big claims like, international law is not real law, moral law is not real law. All of his big claims are contained within these sorts of taxonomic sortings, and there's virtually no argument to be seen. So, why did his view conquer? Because conquer it did. He wrote Province of Jurisprudence Determined, and English law, English jurisprudence, not just among the academics, but the lawyers and judges too, promptly pivoted to positivism after 2,400 years of natural law. Blackstone, who is a natural lawyer par excellence, preceded Austin only by a few years. But Blackstone's natural law edifice collapsed in the face of Austin's challenge. And it can't possibly have been because of an argument, because there was no such argument. Furthermore, the picture that Austin propounded, the command theory picture, even people in his own time recognized that that couldn't possibly be right, that couldn't possibly be the whole story. And some decades later, some hundred years later, H.L.A. Hart destroyed command theory to the satisfaction of most legal philosophers. Further wrinkle: the same thing was happening on the continent of Europe, under totally different influences. It wasn't the force of Austin's argument, because nobody was reading Austin in Germany. But they too were switching from natural law and positivism. So again, it can't possibly have been a philosopher's argument. And here's what I want to suggest, the philosophers were expressing the zeitgeists of that time, the spirit of the time. What was that spirit? What had changed in human conditions, to make the old natural law picture so implausible? And the new positivistic picture so much more plausible? Well, this was the 19th century. This is early enlightenment, industrial revolution, rise of modern science. And I would submit that there are three changing social conditions that make the positivistic picture of law plausible. First, the death of God, as Nietzsche so colorfully put it. I've emphasized that the natural law tradition was never 100% religious, but it was partially religious. It was partially based on religious precepts. It was partially based on a theological view of the world, in which there was a God as more a law-giver. And a sea of faith that once was full, that uniform cultural belief in God was collapsing at this time, and we were entering a secular age. And in this secular age, it's not like no one was religious, but there wasn't a sort of common cultural consensus to be religious. And some people were religious, and some were secular. And so, with the death of God, the idea that there is a system of law that corresponds to God's law, became unsupportable. The next thing I'd cite is the rise of modern science. Aristotle's teleological view of science, his teleological view of both the human world and the natural world is inconsistent with a science, that is not, in which the physical world is organized, not according to purposes. It isn't trying to accomplish something, it's just bare physical facts, material facts about the world. And with the rise of modern science, the rise of an outlook, an intellectual outlook based on bare facts with no moral content, came a second thing, which is the rise of moral skepticism. The idea that claims about what is moral and immoral, are claims of opinion dressed up in the close of claims about the world, rather than genuinely objective statements about objective conditions. And so with that moral skepticism, we start to see another leg of the stool supporting natural law start to get knocked out from under it. The idea that there is objective moral order, even a moral order based on our own nature, that the law should correspond to, or respect, or reflect, or uphold, or advance, that becomes implausible as you start to have a picture of the world, as bare facts and moral claims aren't factual claims at all. So that's the rise of modern science. But third and, most importantly, is the birth of the modern state. And to see why that's the most important, we have to think about what law looked like, before there was this entity, this well-organized, bureaucratically organized entity: the government. Which was regularly issuing statutes, and regulations, and other kinds of mandates or edicts, to which we are all bound to conform. Most of the social context in which we live most of the time do not work that way. The rules such as they are, and not just issuances of government, they're usages of the community. Think about a classroom. There's all sorts of norms that prevail in the classroom. And you know them. You know for example, that you're supposed to sit facing the teacher, as opposed to sit facing away from the teacher. You know you're supposed to listen when he or she talks. You know you're not supposed to talk at the same time. Perhaps in your classroom you're supposed to raise your hand, when you want a turn to talk. Well, how do you know all these things? Did you get a statute book when you arrived at school? And read down the rules, and it said these things? You knew them because that's the way it's done in your community. And it's done with a normative expectation that that's what we expect of you. And yes, there's a sort of community sanction that will fall upon you if you start flouting those conventions or customs. If you point your chair away from the teacher upon walking in, people will look at you askance. And the teacher might center you in some respect, there'll be an expectation, but none of it comes from a sort of issuance of government in the ordinary sense. It's the customs and expectations, and indeed sense of equity of the community you're a part of. So one of the great legal historians of our time is a man named Harold Berman. Harold Berman has written a grand narrative history, of the law of Western civilization going back a millennia, and looking transnationally at different communities throughout the modern West over time, or throughout the West throughout time. And Berman says, that the picture positivism presents us with, the picture of law as a edict of government, is simply totally inadequate to understanding the phenomenon of law, over times in places. Why? Because throughout most of human history, the dominant source of law is custom. Another powerful source of law is equity. There are four traditional sources of law, Berman says, and those are the first two, custom and the sense of equity. You can think of the sense of equity as people's sense of justice. Custom, the norms and usages of the community, how are you supposed to behave when you're in a classroom, when you're watching the Superbowl with your friends, when you're in a traditional community, and listening to the chief speaker, Shaman speak, or fetching water, or organizing yourself in whatever other way your tribe or village is organized. And then he mentioned legislation, and precedent. Custom, equity, legislation and precedent, four sources of law. But positivism has almost no room, almost because of some technical nuances, for either of the first two, custom or equity. And only a limited place for the way precedent has been enforced and upheld in most societies over time. So what you have with the rise, and I want to bring this back now, this historical picture to why positivism prevailed. Here you have this world of villages, and peoples, and communities, and they are regulating themselves with custom, and the sense of equity of their leading citizens, and indeed some legislation and some precedent. And then you have this new thing, you have the birth of the modern state, bureaucratically organized, capable of issuing writings that encapsulate all of its edicts and mandates, and there is a division, there is the rulers and the ruled. The rulers are not even just the kings and princes, they are a government. And there are the rules, there is a state, and there are the citizens of the state. When you have that sort of relation, it just becomes very plausible, even dare I say, natural, to think of the law as an issuance of the state, as a kind of edict the state hands down. And what all of the Positivists are getting at, is that picture of the state as setting forth its demands in the form of edicts. And so what you have, is a world that has changed, in ways that made natural law implausible. And so, it was like a great skyscraper, a 2,400 year old skyscraper being held aloft by a twig. And I like to think that Austin just popped his finger at that twig, and the whole skyscraper came tumbling down. Because the natural law theory was based on a picture of the world, in which there was a God, and there was an objective moral order, and there were communities that were regulating themselves mainly by custom and partly by the sense of equity, and to a much lesser extent by legislation and precedent. And then it was replaced, by a world where faith in God was greatly reduced, where belief in an objective moral order seemed unscientific, and where there is a bureaucratically organized modern government whose issuances carry the label law. And positivism is a theory of the law, that corresponds to that new experience. It really teaches us something about how world history works. Philosophers like to imagine that their arguments change the world, their arguments reflect the world. Rational argument itself rarely causes anything. What in fact happens, is social conditions change, different kinds of things come to seem true, because of the historical conditions in which we find ourselves. And we engage in rational argument, largely to create pictures, theoretical pictures consistent with our felt experience of the world. So you might say, well, you're an irrationalist. I'm an irrationalist about how human history moves. It says nothing about the merits of the arguments. As a matter of fact, I think Austin's arguments were terrible because there were none of them. And I think the natural lawyers have a very, very good point about how law works. And in a sense, none of that matters. It is all causally inert, because the felt picture of the world when cast around, for a theory that makes itself intelligible, and that is where inquiry will stop, at least for purposes of moving events. So in the historical framework, is positivism becoming more or less popular? Is there a newer theory that is starting to take hold and move things forward? When you start to look at legal theories in historical epochs, natural law had its day for 2,400 years, positivism has had its day for about 200 years. You start to think, what's next? What's coming up? The truth is, I have no idea. But I don't think positivism is going anywhere for quite some time. Think about the historical forces we're talking about, religious and moral skepticism. A belief in the firm separation of claims of fact, and claims of right and wrong, good and bad. And the existence of the modern state, the picture of the modern state as the law giver, so that we understand laws as a kind of issuance from the state. None of those things seem to me like they're going anywhere anytime soon. I think the arguments on which positivism rests are flawed, as I've indicated. I think the arguments, especially for secular forms of natural law of the Aristotelian kind, or Fullerian kind, or Dworkinian kind, are extremely powerful, and plausible, and constitute at least somewhat successful challenges to the positivistic project. But in a certain sense, none of it matters. I want to be careful about the sense in which I mean that. It matters if you want to really understand these things, if what you're looking for is intellectual illumination or clarity. But if what you want to understand is what most people will believe most of the time, I don't think there's any change in the sort of basic positivistic picture until there's a change in these major social conditions. And what would that even be, a revival in moral faith, or religious faith, a change in how modern science works. A change in the belief about the severability of facts and values, a change in how we think about the operation of the state. It might be that we're in for another 2000 year reign. And I suppose if that's not true, I am not myself capable of seeing what's next. It may be, that if we were to have a robust, thick, moral consensus, not just moral consensus on thin principles, like people should be free and equal and happy, but a robust kind of MacIntyre-ing thick, moral discourse of values, and how to construct a life, what it means to have a good life, what things are right and wrong and why. Then maybe a natural law picture will come to seem plausible again. But don't think for a minute that just because there are cracks in the positivistic edifice, it will therefore fall. The ideas that make sense of every facet, of every society over time are always flawed. There are always cracks in them. There are always, what Hegel called, internal contradictions, or porous holes in inconsistencies in our accounts of ourselves, and it doesn't mean the ideas fall. I'll give you a funny example about that. It's an example of a philosophy, but I think it illustrates something much larger. There's a movement that really defined Anglo-American philosophy in the middle of the 20th century, it was called the logical positivist movement. And it was a movement that was dedicated to the idea that there are scientific claims, which are real claims of knowledge about the world, and there were mathematical claims that are real claims of knowledge about the world, but moral claims, political claims, are not knowledge about the world. They're just claims of opinion. So what they wanted to do was sort of say, there's forms of proposition, utterances that are meaningful, and forms that are nonsense. A meaningful claim would be that there are nuclear reactions on the surface of the sun. That's an empirical claim about the world. And there are claims like, murder is wrong, and that's just an expression of opinion, even though the form of the sentence seems to be an objective. It's like saying I like vanilla ice cream. And so, the logical positivists, this dominant philosophical movement for some 40 years in two countries, came up with what they call the verificationist principle. It was their principle of meaningful utterances. And it was this: that any meaningful claim is either empirical or logical. It's either empirically verifiable or logically inferential. That is to say, like a claim of mathematics, or form of logic. And then someone pointed out, and it didn't take long, that the verificationist principle itself, is neither empirically verifiable, nor logically inferential. That is to say, the claim that all meaningful statements are empirical, or mathematical is itself neither empirical nor mathematical. This is called self-referential incoherence. And it is very embarrassing to a theoretical idea. You don't want to say something, which proves itself false, in the very saying of it, something that renders itself incoherent upon issuance. Self-referential incoherence. The fact that the verificationist principle is itself neither empirical, nor mathematical, or logical, should have spelled the instant death of the positivistic theory. Did it? No. They felt it. They felt that science was real, and math was real, and logic was real. And all that stuff about ethics and aesthetics and politics was not real. And they felt it and they didn't care, that what they had to say for their position was incoherent. And these were a group of academic philosophers who are supposed to be dedicated to logical consistency. Whole societies, the prevailing ideology of our time, is filled with lies. The prevailing ideology of the time that preceded us was filled with lies. The prevailing ideology of the time that preceded that, was filled with lies. It's just how societies work. They do not have theories of their law, of their government, of their own ethics, that are perfectly consistent and defensible. There are all holes, and cracks, and false words, that are filled in by blindness, and ignorance, and propaganda, and deception, and self-deception, and it doesn't matter, because the society can sustain itself, so long as it continues to be felt as true. 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!