Positivism

Sometimes I feel, sometimes I feel
Like I've been tied to the whipping post
Tied to the whipping post
Tied to the whipping post
Oh Lord it feels like I'm dying
--Allman Brothers

A few missives back we discussed legal philosophy surrounding Natural Law. An opposing legal philosphy is Positivism.

Positivism says that laws do not require a moral basis to be considered valid. Instead, laws are 'posited' by humans, and they are valid if they are enforceable. Essentially, laws are those commands that people can be coerced into obeying.

Under Positivism, all rights are granted by government. Those same rights can be taken away at the discretion of the government.

Unlike the Natural Law legal framework, Positivists deny the presence of a higher 'natural' law to which human law must conform in order to be considered valid.

A common expression of Positivism is democracy, where laws are enacted by 'majority rule.' The group that marshalls a majority vote has its way with no constraints. As we have noted many times on these pages, this is destructive to freedom.

Positivists fear that judges will strike down laws passed by majority vote under the auspices that the law is not in accordance with Natural Law. If we are to err to any side, say the Positivists, it should be to the side of the collective knowledge and experience of the majority.

It should be clear that enacting Positivist law requires that dissenting minorities obey out of fear of the government.

The implement of Positivism is the truncheon.