Document Type

Article

Publication Date

1993

Abstract

I share with Fred Schauer the relatively unpopular belief that the positivist insistence that we keep separate the legal "is" from the legal "ought" is a logical prerequisite to meaningful legal criticism, and therefore, in the constitutional context, is a logical prerequisite to meaningful criticism of the Constitution. As Schauer argues, despite the modern inclination to associate positivism with conservatism, the positivist "separation thesis," properly understood, facilitates legal criticism and legal reform, not reactionary acquiescence. If we want to improve law, we must resist the urge to see it through the proverbial rose-colored glasses; we must be clear that a norm's legality implies nothing about its morality. To reverse the classical natural lawyer's formulation of the issue, if we wish to make our laws just, we must first see that many of our laws are unjust, and if we are to understand that simple truth, we must understand that the legality of those norms implies nothing about their justice. Surely the lessons of positivism are more compelling, not less compelling, in the constitutional context where the capacity for self-delusion is so great, given the moralistic content and peculiar history of the Constitution, and where the stakes are highest: the consequences of merging constitutional fact with constitutional virtue are that we preclude even the logical possibility of fundamental criticism of our most foundational legal document. As I have argued at some length elsewhere, by merging in our own minds and in the public mind "constitutional morality" and critical morality, we have closed the door to meaningful criticism of the Constitution. The positivist's classic and even enlightened insistence on the "separation" of law and morality, if it would free up criticism of constitutional norms, could bring a welcome breath of fresh air.

Today, "legal positivism" is widely taken to imply not just a conservative stance against legal change, but much worse: a refusal even to engage the issue, a denial of the coherence of legal criticism, and a denial of the relevance, in some sense, of legal reform. Given the historical grounding of positivism in an insistence on the need for legal criticism and legal reform, this modern belief about the reactionary consequences of legal positivism is strikingly peculiar: how did black become white? Where did this belief, so widely shared yet so wildly at odds with both the clear history and the apparent logic of legal positivism, come from?

In these comments I want to supplement Fred Schauer's discussion and general defense of positivism with a brief response, in a sense, to Cover's quite chilling indictment. I will ultimately argue that whatever the (limited) force of Cover's indictment of the positivism of the abolitionist judges, that argument has no force against the positivism of the nonjudge constitutional critic. The critic, unlike the judge, is interested in competing theories of the relationship between law and morality, not as a guide to legal interpretation, but rather as a guide to clear-headed legal criticism. The constitutional critic, almost by definition, will rarely if ever be a judge. For such a critic, contrary to contemporary opinion and for the reasons stressed by the classical positivists, positivism does indeed facilitate the kind of constitutional criticism that natural law thinking obscures.

Publication Citation

25 Conn. L. Rev. 831 (1993)

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