A Court of Chaos and Whimsy: On the Self-Destructive Nature of Legal Positivism

Forthcoming, The Cardozo Journal of Equal Rights and Social Justice

98 Pages Posted: 1 Nov 2022 Last revised: 22 Dec 2022

Date Written: September 17, 2022


Each of the four most famous dictators in modern Western history, Adolf Hitler, Porfirio Díaz, Napoleon Bonaparte, and Oliver Cromwell, were legal positivists. This is to say that they rejected both the common law and natural law conceptions of human rights. They furthermore rejected the judiciary’s equitable power to enforce human rights independently of politics by characterizing the old Chancery of England as a court of chaos and whimsy, adopting John Selden’s religious rejection of equity as a “roguish thing.”

As Bertrand Russell recounted in his History of Western Philosophy, the philosophical avatars of German, French, and English despotism, Hegel, Rousseau, and Hobbes, provided the ideological bases for legal positivism in stark realism and relativism. Yet, the United States’ legal establishment will not shake off these problematic philosophies as clearly self-destructive and illogical. Rather, inspired by Oliver Wendell Holmes, Jr., the United States presently embraces them by willfully ignoring how Holmes punished Porfirio Díaz’s leading critic Eugene V. Debs.

The road to this state of affairs in American law was paved by an under-emphasis of the majority view of the American Revolution, embodied by the contributions of James Otis and Phillis Wheatley. Professor Adrian Vermeule seemed to realize that real American conservatism may require a defense of liberal Republican values. Thus, he blamed Scalia’s originalism for being “content to play defensively within the procedural rules of the liberal order,” and that real conservatives should abandon the founding and embrace “illiberal legalism,” a form of progressive legal positivism that Vermeule swears “is not legal positivism.”

Such defenders of Hobbes’ Leviathan learned from Hobbes to destroy exactly the positions they, in fact, defend. Just as Selden rejected measuring the chancellor’s foot only to measure Cromwell’s, Vermeule’s rejection of Scalia’s originalism and legal positivism is ‘aufhebung,’ rejected, but preserved. This article is dedicated to the illumination of legal positivism, which often destroys itself in these sort of illogical Hegelianisms.

Keywords: legal positivism, Hobbes, Sunstein, Vermeule, Eastman, Fuller, Hart, Austin, Oliver Wendell Holmes, Jr.

JEL Classification: K00, K10, K19, K20, K29, K30, K39, K40, K49

Suggested Citation

Schroeder, Joshua, A Court of Chaos and Whimsy: On the Self-Destructive Nature of Legal Positivism (September 17, 2022). Forthcoming, The Cardozo Journal of Equal Rights and Social Justice, Available at SSRN: https://ssrn.com/abstract=4256926

Joshua Schroeder (Contact Author)

SchroederLaw ( email )

490 Lake Park Ave. #10422
Oakland, CA 94610
United States

HOME PAGE: http://https://www.jschroederlaw.com/

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