18. Appendix I. Legal Positivism

Human laws are bound to show imperfections, as all human works do. This will happen even if a society has a sound concept of law, i.e. even if it accepts that law should respect and reflect the Divine and the Natural Law.

            However, if a society or its law-givers have a wrong concept of law, its laws can be very bad indeed. And a society suffers immensely from bad laws.

            The root error is the thesis that man-made law is the source and test of all justice; in other words, that there is no law higher than man-made or positive law. This error is termed Positivism.

            Positivism means that the will of the law-giver is supreme[1]; he enacts what he likes. As a result it leaves those who may not agree with the law-giver without any court of appeal against what they consider unjust laws.

            Positivism can be a useful instrument to non-democratic regimes; cf. the racial laws of Hitler or of South Africa. The law-giver in this case may be in a minority; but he has the power to impose his will. And there is no redress for those who suffer injustice.

            But positivism can also be present in the legal system of democratic countries. One of the greatest exponents of legal positivism, the American jurist, Oliver Wendell Holmes, summed up the democratic positivist philosophy when he said he knew of no other criterion of what is right and wrong in law except the will of the majority.

            Now that sort of positivism may, at first sight, carry a certain appeal to the modern mind. But democratic positivism can equally lead to injustice, and is in fact doing so more and more in today's world. If the majority will is absolute, then there is no defence for a minority group if a majority decides to penalize it. There is no defense for the unborn if the majority legalize abortion. There is none for the new-born if the majority legislate infanticide (e.g. for the defective). There is no protection for the aged if the majority legislate compulsory euthanasia. Here we are facing a great contemporary danger.

            Holmes, a practical agnostic and a man opposed to any concept of stable and fixed truth, opened his most important work with the words: "The life of the law has not been logic; it has been experience". The maxim may be a useful reminder that law is not to be applied according to a narrow logic, i.e. in a legalistic way, taking more account of the law's letter than of its spirit. But it can destroy a main function of the law - the protection of the rights of the weak - if it is taken to mean that law should adapt itself to man's experience, i.e. should adapt itself to what men happen to think or tend to in any moment, and not that men's experience or way of living should be modelled according to the law of his nature as given by God and discovered by reason.

            "Logic" can easily be used as a term of contempt. But logic really means sound reasoning at work. If reason is not at the basis of law, then law quickly becomes an instrument of tyranny and exploitation.

Positivism; subjectivism

            The prevailing atmosphere of our modern world is positivism in law, just as it is subjectivism in morality. Neither public order nor private morality will survive on such a basis.

            What is right or wrong has become, for many people, a matter of opinion or of votes; a matter of preference, of what people want. In politics or in law, the only criterion of right or wrong is the majority will. In personal conduct, the only criterion is my will.

            What the majority wants is best for the country... What I want is best for me (I am my own majority)... The two approaches are connected; but are also in potential opposition. If the majority wants something I do not want, why should I have to accept the majority's preference?

            Is the majority's opinion always right? Must the minority always surrender its opinion? If one man's opinion is as good as another's, why should one opinion not be as good as two others? Or am I bound to surrender my opinion just because I am faced with two contrary opinions? Are two persons always "righter" than one?[2]...

            If I am a black citizen of a country and a majority of my fellow- citizens approve a law that all blacks are to be deprived of their civil rights, am I supposed to accept that law as binding?

            On the other hand, we can also ask: is a minority opinion always entitled to hold out against a majority? Have I the right to toss bombs into all the butchers shops I see just because I feel deeply that animals should not be slaughtered?

            In any society of men there are bound to be many differences of opinion about the management of human affairs (level of taxes, educational curricula, foreign policy, etc., etc.). These differences of opinion about social, economic, political affairs, etc. do create some tensions. But society can survive the tensions as long as they are simply about the management of human affairs. However, if the differences of opinion are about the very roots of social and human life, if people do not agree about the very nature of human society or the very nature of man himself, then the tensions become explosive, man will not get along with others (he no longer sees "fellow-men" in them), and society itself will split apart.

            If society is to hold together, a norm of behavior, a criterion of right and wrong must be found that is objective, i.e. that is not a product of each individual's subjective emotions or whims but stands outside each individual (that is what we mean by objectivity), and so is easily understandable by all (because it appeals not to feelings or whims but to reason), and, given a minimum of good will, is acceptable by them.

            This objective character of the norms of social conduct offers the only hope of making these norms acceptable to men in general, and so represents the only basis for holding society peaceably together. By contrast, a purely subjective and individualistic approach to law or to morality removes the one basis on which stable and just society can be built - i.e. a common acceptance of rules of behavior.

            A man holding a subjective social morality cannot get others to follow him, or will not follow others. He cannot find grounds for building a society. He is an island; and he is arguing that all others are islands too, and that there is no shared ground - not even deep beneath the surface - on which to build bridges to link them together.

            If our only basis for building society is men's opinions, everything is fluid, and everything can fall apart. In opinions is where men so easily differ. In nature is where men meet and are at one. So at least we believe. We see no other way for men to learn to live together, unless they can be convinced that despite their varying opinions, they all have one thing in common: their very human nature. And here we connect with Appendix II.



[1] That is why it is sometimes also called Voluntarism.

[2] Either one man's opinion is as good as another's (and then you get potential chaos), or there is One Opinion that is better than anyone's: i.e. God's. That is why if, as Christians believe, God has revealed his "opinion" - about man and men's affairs - there, in God's Revelation, is the true basis for life.