In Defense of Modern Legal Positivism

Florida State University Law Review Volume 16 Issue 4 Article 15 Spring 1989 In Defense of Modern Legal Positivism Peter Mirfield Florida State University College of Law Follow this and additional works at: https://ir.law.fsu.edu/lr Part of the Jurisprudence Commons, and the Legal Education Commons Recommended Citation Peter Mirfield, In Defense of Modern Legal Positivism, 16 Fla. St. U. L. Rev. 985 (1989) . https://ir.law.fsu.edu/lr/vol16/iss4/15 This Essay is brought to you for free and open access by Scholarship Repository. It has been accepted for inclusion in Florida State University Law Review by an authorized editor of Scholarship Repository. For more information, please contact [email protected]. BOOK ESSAY IN DEFENSE OF MODERN LEGAL POSITIVISM PETER MIRFIELD* Professor Mirfield uses the example of a recent casebook to show that the process of excerpting passages from various writings about jurisprudence as a method of introducing the study of jurisprudence has very grave dangers attached to it. These dangers are demonstrated by "The World of Rules: The Jurisprudence of Positivism," a chapter of W. Michael Reisman and Aaron M. Schreiber's Jurisprudence: Understanding and Shaping Law. Professor Mirfield contends that Reisman and Schreiber's presentation of positivism is incomplete and is, in places, framed with inaccuratesummaries and characterizations. O NE MAY, perhaps, be unconvinced of the merits of studying dis- crete legal subjects via the medium of extracts from cases, arti- cles and the rest. Linking commentary from casebook editors seems more often to reveal their idiosyncracies than to lead the student reader to fruitful enquiry. But, this may be a cry from a legal tradi- tion rather different from that of the United States. These may be matters upon which reasonable people, lawyers even, may properly differ. I would be somewhat more resolute in denying the value of the "bleeding chunk" approach to "jurisprudence," whatever vastly varying material may lie between the covers of volumes bearing that title. Acquaintanceship with the recently published work, Jurispru- dence: Understanding and Shaping Law: Cases, Readings, Commen- tary,' written and edited by Professors W. Michael Reisman2 and * Tutor and Fellow in Law, Jesus College, Oxford; former Visiting Professor of Law, Florida State University, 1987-1988. B.A., 1971; B.C.L., 1972; M.A., 1976, Oxford University. 1. W. REISMAN & A. SCHREIBER, JURISPRUDENCE: UNDERSTANDING AND SHAPING LAW: CASES, READINGS, COMMENTARY (1987). 2. Wesley Newcomb Hofeld Professor of Jurisprudence, Yale Law School. L.L.B., 1963, Hebrew University; L.L.M., 1964; J.S.D., 1965, Yale University. 986 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 16:985 Aaron M. Schreiber,3 has done nothing to persuade me away from my prejudice. The reasons will appear in due course. I ought, in fairness, to reveal another feature of my philosophy of the study of law before going any further. I can think of almost nothing with which I more profoundly disagree than the following senti- ment expressed by the editors near the beginning of their book and repeated, in different terms, at times later therein: Legal theory or jurisprudence is of importance only if it contributes to problem-solving for our profession and society. If it does not, there is no reason why it should be incorporated in the law school curriculum and distract the attention of those preparing to serve their 4 communities and fellow citizens from matters of real importance. I confess distaste for the notion that lawyers "serve" their communities and fellow citizens; the word smacks too much of ordination and calling for me. I think it safer to regard the generally rather mundane life led by the average legal practitioner as being closer to the job of a plumber than the office of a priest. However, the substance of what the editors are saying is far more significant than the way in which it is expressed. It seems to me that what separates law from other intellectual disci- plines is far less important than what it shares with them. A good lawyer is not to be confused with a good legal practitioner, though the former will, I hope and believe, tend to become the latter should he or she choose to enter practice. I am almost tempted to say that the value of legal theory lies precisely in the fact that it has no practical utility. Certainly its value does not lie in its capacity to prepare students for the practice of law, even practice at the problem-solving level. Rather, its value lies in that which it shares with, for example, theories of his- tory or literary criticism, namely its capacity to advance one's understanding of the intellectual discipline which is its subject. Having regard to Reisman and Schreiber's attitudq to legal theory, it is not surprising that the branch of legal theory known as "positivism" comes in for rough treatment. Of Hans Kelsen's 5 Pure Theory of Law,6 they say that it "almost seems to have been designed for the bureaucratic universe .. [I]t would appear to be amoral and an- 3. Professor of Law, Pace University Law School. B.B.A., 1950, City University of New York; J.D., 1955, Brooklyn Law School; L.L.M., 1967; J.S.D., 1978, Yale University. 4. W. R IdAN & A. ScImEIBER, supra note 1,at 11. 5. (1881-1973). An Austrian, Kelsen drafted the 1920 Austrian Constitution and served on the Austrian Supreme Constitutional Court before emigrating. 6. H. KELSEN, PuRE THEORY OF LAw (1967). 19891 MODERN LEGAL POSITIVISM ethical, primarily concerned with understanding and providing guidelines for behavior in complex organizations." '7 Certainly, the theory is "amoral and an-ethical," for these are aspects of its purity. But, it is hard to see how Kelsen's theory can be said to have been concerned with understanding behavior, and for precisely the same reason. Were Kelsen concerned with this, he would be engaged in sociological jurisprudence, and would thus be compromising the purity of the exercise.' And, it is surely clear beyond a peradventure that Kelsen's theory was not concerned with providing guidelines for human behavior. His science of law was intended to be entirely descriptive, albeit that the ob- ject of its description was a system of legal norms which are themselves prescriptive in nature and form. As he said in Pure Theory of Law, "the science of law can only describe the law, it cannot prescribe a certain behavior like the law created by the legal authority (in the form of general or individual norms)." 9 It is true, as the editors, Reisman and Schreiber, point out, that some judges have purported to use the "Pure Theory" as providing them with justification for recognizing a revolution as having been le- gally successful.'0 However, this use has been subjected to cogent and convincing criticism precisely because it treats as prescriptive a theory which is itself entirely descriptive. 1 It is right to add that James Harris 2 has suggested that things may not be as straightforward as this, and that the theory properly has "indirect social suggestive force for judges."' 3 But, that is very far from a claim that this is the pri- mary concern of the theory, and Reisman and Schreiber do not, in any event, rely either explicitly or implicitly upon Harris's argument. In other words, it is one thing to argue that an unwelcome (for Kel- sen) but logically necessary feature of the theory is that it does speak to judges and other bureaucrats, quite another to argue that this was his theory's major point or purpose. This misleading assessment of Kelsen is no more than a sideswipe, for it is at the Anglo-Saxon version of positivism that the attack is 7. W. REISMAN & A. SCHREIBER, supra note 1, at 381. 8. See generally H. KELSEN, GE ERAL THEORY OF LAw AND STATE 162-64 (1961); H. KEL- SEN, PuRE THEORY OF LAW 1 (1967). 9. H. KELSEN, PuRE THEORY OF LAW 73 (1967) (emphasis in original). 10. The leading example is Madzimbamuto v. Lardner-Burke [19681 2 S. Afr. 284. See also State v. Dosso [1958] 2 Pak. Sup. Ct. Rep. 180; Uganda v. Comm'r of Prisons [1966] E. Afr. 514, 535-39. 11. See Hopton, Grundnorm and Constitution, 24 McGILL L.J. 72, 83-86 (1978). See also Brookfield, The Courts, Kelsen, and the Rhodesian Revolution, 19 U. TOR. L.J. 326, 342-44, 351-52 (1969). 12. Tutorial Fellow, Keble College, Oxford. B.C.L., 1966; M.A., 1966, Oxford University; Ph.D., 1973, London University. 13. Harris, When and Why Does the Grundnorm Change?, 29 CAMB. L.J. 103, 125 (1971). 988 FLORIDA STATE UNIVERSITY LA W REVIEW [Vol. 16:985 substantially directed. Chapter Seven, "The World of Rules: The Ju- risprudence of Positivism,"' 4 deals with what is now often called Hartian positivism. That said, I am not sure that Professor H.L.A. Hart'5 would recognize much of what is contained in the commentary in that chapter as based upon an accurate picture of his published views. If this caricature image of modern positivism represents the view of that doctrine held by the academic lawyer in the United States, it is small wonder that it seems to have little support here, at least in the law schools. Let me describe what I understand to be Hart's own doctrine of legal positivism before I go on to explain what is wrong with Reisman and Schreiber's treatment of that doctrine. 16 First, Hart stresses that law has social sources.

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