The Straw Man of Legal Positivism

The typical view of many lawyers, philosophers, theologians and other thoughtful persons toward a so-called school of jurisprudence generally known as legal positivism is one of condemnation. According to this typical view legal positivism is a well developed philosophy of law the main tenets of which are that might makes right and that law and state sovereignty are absolute and not subject to independent moral evaluation. Needless to say this assumed jurisprudential view is roundly indicted, deplored and declaimed against with vigor and venom. We are warned that legal positivists are insidious termites threatening the very foundation of our law, order, freedom and way of life. It is the burden of this article to demonstrate that these insidious termites of legal positivism are straw men, that is, figments of the imagination of the righteous attackers. That, as common sense would suggest, no thoughtful person adheres to a philosophy that might makes right and law is power alone, beyond moral limitation. Yet much energy—physical and mental—is constantly expended in an effort to destroy the assumed positivist dragon. I think it is important to point out this popular misconception about legal positivism for two reasons. First, these prevalent views are fundamentally false. But the falsity is not only one of the misunderstanding of the views of individual persons. It is a falsity in the fundamental approach to jurisprudence. This article suggests the utter futility of categorizing or pigeon-holing writers as belonging to various schools of jurisprudence. Second, there is a very practical reason for pointing out this popular misconception about legal positivism. I said that much energy is expended slaying the positivist dragon. Not only is valuable time being wasted, but more importantly, we are indulging in self-delusion. We are leading ourselves to believe that we really have grasped something important about law when we recognize the alleged errors of positivism. But the fact of the matter is that we really haven\u27t learned anything because we have been misled from the paths of fruitful thought doing battle with a phantom enemy. The real questions of law are not so simple to answer as that supposedly posed by the straw man of positivism