Thursday, April 5, 2012

MUST READ: A negative for us...

The Positivist President?

By Robert Harkins

...That said, the president's criticism of the Supreme Court justices does find support in the political doctrine of "Positivism."  The positivist theory, developed in Germany following the First World War, holds that a natural law, or the rule of law, simply does not exist.  The idea that men are endowed by their creator with certain unalienable rights is therefore patently absurd. 

"In short, every single tenet of the traditional conception of the rule of law is represented as a metaphysical superstition. ... The law by definition consists exclusively of deliberate commands of a human will."  The legislature is not bound by precedent, by custom or tradition, or by considerations of justice.  As apparently vulgar and irrational as is the positivist theory, Hitler used it to leverage the Nazi Party first to power and then to totalitarian power [1].

In his analysis of the positivist theory, F.A. Hayek writes:
It was consequently here that the ideal of the rule of law was first deprived of real content. The substantive conception of the Rechtsstaat, [a state bound by the rule of law]; which required that the rules of law possess definite properties, was displaced by a purely formal concept which required merely that all action of the state be authorized by the legislature.
In short, a "law" was that which merely stated that whatever a certain authority did should be legal. The problem thus became one of mere legality. By the turn of the century it had become accepted doctrine that the "individualist" ideal of the substantive Rechtsstaat was a thing of the past, "vanquished by the creative powers of national and social ideas. ... This new formulation, known as the "pure theory of law" ... signaled the definite eclipse of all traditions of limited government. [2]
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