Wednesday, December 9, 2009

The Perils of Pure Positivism

The dominant paradigm among law schools training young students to be lawyers is to indoctrinate them into accepting the truth of legal positivism. This trend continues the once fashionable school of Critical Legal Theory (in which law is politics, pure and simple), which went out of fashion, at least as a term, with the collapse of the allegedly Marxist states. In "pure" legal positivism, there is a complete disconnect between law and morality, and the validity of enactments derives from the fact of their enactment (to simplify greatly). In law school, I too read Austin and Hart, and modern proponents like Dworkin, I just never bought them. Legal positivism is the legal equivalent of moral relativism, and leaves open the door to too many hypothetical conditions under which we would be forced to accept the justice of clearly unjust enactments. As a believer in Justice, I maintained my allegiance to the classical, liberal underpinnings of the US Constitution, grounded as it is in a form of natural law theory.

Yet, in the current debate over gene patents, I can see that the grip of legal positivism on lawyers, especially patent attorneys it seems, is tenacious. As I have argued, intellectual property is not derived from natural law, and is thus a set of purely positive enactments. If there were no conflicts with natural law, then all its enactments would be "just," or at least acceptable. It is clear that a number of patent attorneys arguing for the continuation of gene patents either see no truth to natural law theory at all, or cannot grasp the necessity that positive enactments may not justly contradict natural law. It seems most likely, from my recent debates with gene patent proponents, that embracing pure legal positivism is a convenient way in general for lawyers to avoid cognitive dissonance, as there is never the threat that one might have to defend a stance that is, by nature, unjust.

And so, my continuing call to recognize that law must be naturally constrained from granting ownership to things that, by nature, cannot be exclusively possessed, that belong to what I term a "commons by necessity" continues to be misconstrued as a utilitarian call to recognize common rights for some other purpose. Rather, it is a recognition of a simple, necessary law of being, much like that which requires 2+2 to equal 4. Some things, like natural laws, cannot be possessed to the exclusion of anyone. Naturally occurring genes fall into this category too, as a matter of natural law. Positivists who fail to grasp this, or who refuse to recognize this, are persuaded that this is but a matter of choice. To them, I would ask, have you forgotten your Orwell?

"In a time of universal deceit - telling the truth is a revolutionary act."

— George Orwell


Rosja said...

Hi David,

I much agree with the spirit and the point of your argument. I am not an expert in these issues, but I do have a question/comment.

Although I agree with the criticism of legal positivism, I do not quite see what alternative you are proposing. The (positivist) statement that laws are rules made by people seems undeniable. It does not imply that people do so at random. As I see it, without a prohibition against, e.g., assaulting someone there is still, but only, indignation and revulsion.

Of course one can ask whether one accepts the law(s) as binding, i.e., committing to it or not is a moral decision.

I do not accept positivism as such, but I do think that the critique from positivist and Oxford philosophers to realism and descriptivism was a move forward.


drkoepsell said...

Rosja, it's a step forward from "pure" positivism (as in Bentham, Hart, Austin) but a step backward from classical liberalism's natural law theory, which grounds the justice of an enactment in some natural condition of the universe. I have elucidated my quirky naturalism before, in previous posts here, and in my book, as well as my lecture on YouTube on the ethics of IP, and elsewhere. Essentially, for laws to be just, they must be grounded in something beyong their mere enactment. In the case of real property, I argue the justice of laws upholding rights to property is grounded in the brute facts of prior possession. In the case of genes, I argue that the existence of the genome, as a "commons by necessity" is grounded in the unencloseability of the genome, like other similar commons (laws of nature, for instance). I thus argue that attempts to enclose such commons are prima facie unjust. Positivists would argue that, by virtue of rules that enable their enclosure (IP law), things like gene patents are not unjust. I obviously disagree.

Lex said...

In essence, you argue against the legality of say, mandating the teaching of creationism, or mandating free breast exams, since these also would be contrary to natural law, to make a slight pun. So many questions coming to a head these days! It's rough, keeping morality out of science any more, and religion away from the state.

Thanks for keeping up the good fight!

drkoepsell said...

well, Lex, it's the "mandating" part that I would oppose, not the content of each, because I believe that the fundamental natural law is individual autonomy.

drkoepsell said...

and let's not confuse the grounding of natural law with laws of nature, which are akin, but not identical.

Rosja said...

Thanks David. I'll have to read up on your quirky naturalism then.

For now, if I may bug you some more, I would say that it sounds like there is some excess metaphysics in your claim. All you really need is that the attribution of possession 'comes naturally to us', not that there is a metaphysical reality underpinning it. That latter idea is an attempt to offer the philosophical kind of justification (by metaphysical speculation) that Wittgenstein rightly criticised.

The advantage of, among others, JL Austin's views (the other Austin) on freedom and excuses and HLA Hart's early paper on ascription of responsibility and rights is, in my opinion, that it allows for the possibility that the law is *sometimes* not dictated by morality (i.e. when nothing comes naturally), which is different from saying that it never is. Just as the judges ruling is constrained, but not necessarily determined, by the evidence, the law and jurisprudence. Laws can be right or wrong (or neither) without there having to be the One True Law.

In this sense, I believe that the dichotomy between positivism (no constraint) and naturalism (total constraint) is a false one. Needless to say, I'll have to read your work to substantiate this prima facie objection.

drkoepsell said...

Thanks, Rosja. I'd say I fall firmly in the middle, and I don't really rely on any extra metaphysics. To be clear, there are plenty of positive laws that I would say are grounded in pragmatic or utilitarian concerns, and thus just (with a small J), as long as they do not conflict with any existing natural law (see Reinach for the "grounding" of which I speak... his Apriori Foundations of the Civil Law explains it nicely and is available here: ). There are, however, according to Reinach, myself, and others similarly bent, some laws that are grounded in truths that can be known a a priori. Reinach considers contracts, I discuss real property vs. intellectual property. I'd argue that individual autonomy is similarly "grounded," without recourse to any extra metaphysical steps. Read the Reinach, my own books on the subject (Ontology of Cyberspace, 2000, and Who Owns You, 2009) and let's discuss it some more. Thanks for your comments and input!

drkoepsell said...

yet another example, in this Science Friday, when Kevin Noonan argues that based on past precedent, "isolated" natural products are "perfectly patentable"... uncritically embracing bad law because it's "the law" (it also benefits him and his clients, by the way):