The Unity Thesis: How Positivism Distorts Constitutional Arguments
University of Houston Law Center
August 13, 2012
U of Houston Law Center No. 2012-W-2
Democracy and civil rights are distorted and polarizing ideas that pit the rich against the poor, and should be abandoned in favor of an emphasis on the common good. To reach that conclusion I argue the US Constitution is and has always been designed to protect the wealth of the ruling class. All political associations or states have this as a central idea.
My argument rests on a unique jurisprudential principle, the Unity Thesis. The main school of legal theory, positivism (the science of law) is based on the idea law is always separate from morals. I argue the opposite, that law cannot be understood apart from the moral. There are fundamental legal things, such as consent, iustum bellum and the state, that have persisted since classical times in our legal regimes. However, the Enlightenment acted to refract those legal things into scientific parts and moral parts. All positivist (or scientific) legal concepts, such as the Enlightenment idea of a constitution, have to be reunited with their moral part(s) in order to be properly understood. The unified legal thing out of which constitutionalism emerged is the state, and it was refracted into the Hobbesian/Lockean individual, social contract theory, inalienable rights, implicit consent, popular sovereignty, slavery, the constitution, limited suffrage, the electoral college, and oligarchic control. The moral part of the US Constitution is democracy and civil rights; the legal part oligarchy. If we merge the various meanings back into the idea of the state (as a legal thing), then we see democracy/rights continue to enable civil discord by unbalanced focus on the Hobbesian individual, and that instead we should focus on the common good.
In the course of exploring some other implications of the Unity Thesis, I explain the origin or necessity for the development of ideology/critique. Once things were reduced by science into parts we lost sight of the wholes, but since it is natural to understand things as wholes we compensate. We recognize there is something false (ideology, the mask of the whole), but since wholes have been rendered invisible we explain only what we can see as dialectic, clothing it in disapproval (critique) but prohibited by naturalism from regaining the unity.
Number of Pages in PDF File: 57
Keywords: legal theory, history of law, philosophy of law, constitutionalism, US Constitution, moral theoryworking papers series
Date posted: August 14, 2012 ; Last revised: March 1, 2013
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