Why Positivism is Authoritarian

Abstract

Legal positivism is the leading doctrine about the nature of law. Its proponents insist that a realistic understanding of law must respect a distinction between law as it in fact is and law as we would like it to be. Ronald Dworkin's critique of positivism turns on claims about the judicial obligation in "hard cases"- cases on contested points of law. According to him, positivist judges will decide such cases in accordance with an impoverished ideal of the rule of law, one which assumes the distinction between law as it is and law as it ought to be. Such judges will thus fail to make of law the "best that it can be," an enterprise which is undertaken only when judges reject the positivist distinction and see law as a matter of moral principles already inherent in the law.

Previously, I attempted to show that the terrain of adjudication of 'hard cases' on the interpretation of apartheid laws supports Dworkin's thesis. The great majority of South African judges adopted a positivistic distinction between law as it is and law as it ought to be, and so interpreted apartheid laws in accordance with what the judges took to be 'plain facts' about legislative intentions. As a result, "plain facts" judges interpreted apartheid laws just as the government wanted them interpreted. By contrast, judges who rejected this distinction interpreted the law as Dworkin would recommend, by seeking to make law live up to the promise of moral principles which they took to be part of their common law tradition. This "common law" approach required legislators to be explicit, should they be so minded, that their statutes not be interpreted in accordance with such principles.

Here I will argue that plain fact judges make the only sense of positivism which it is possible for judges to make. In particular, I try to show that legal positivism contains two pragmatic tendencies, one authoritarian and one progressive, and that only the authoritarian tendency is capable of informing judicial activity.

My argument consists of two parts. First, I sketch the positivist tradition that runs from Thomas Hobbes through Jeremy Bentham to John Austin. That sketch shows how two warring tendencies come to be implicated in the same theory of law. Secondly, I argue that Hart and Raz do not succeed in distancing contemporary positivism from the authoritarian tendency that drives a plain fact approach.