By Lee Trepanier, July 28, 2009 in Pedagogy and Teaching
When students learn the law today, they are taught more likely than not from the perspective of legal positivism. This school of thought asserts three principles: 1) the social fact thesis, 2) the conventionality thesis, and 3) the separability thesis. The first claims that legal validity is a function of certain kinds of social facts; the second emphasizes the law’s conventional nature; and the third denies any connection between law and morality. These assumptions are usually not explicitly stated in the classroom but are implied when students read about constitutional cases, examine legal ethical dilemmas, or explore the philosophical underpinnings of the law itself.
I would like to present an alternative approach to the study of law that was advocated by Eric Voegelin (1901-1985). A review The Nature of the Law, his work on law and legal philosophy, will provide us a different approach to law that is rooted in a historical, societal, and normative foundation. By pointing a way out of the school of legal positivism, Voegelin can show us how to present law in a normative manner to our students. Students will learn that the law is not a social construct manipulated for a variety of ends, but rather the way for humans to secure true order for their societies.
The Nature of the Law is Voegelin’s comprehensive and systematic account of law as a mature thinker, when he had realized that law’s historical existence is inextricably bound to society’s. Rejecting the positivist approach towards law, such as Hans Kelsen’s “pure law” theory, Voegelin adopts the Aristotelian method where one begins with ordinary discourse about law and compares these statements with the experiences underlying the law itself. Selecting those experiences that move forward our understanding of law, Voegelin ultimately arrives at the law’s essential nature as ontological and the structure of the society which the law orders and articulates.
For Voegelin, the law is the substance of order that secures human beings in society, whether it is the classical Greek philosophers who ascertain the law’s true contents or the modern prince who decrees positive law in conformity with natural ones. But with the rise of secularism and sociological jurisprudence, the question of the law’s substance as true order is ignored altogether. Contemporary analysis of law does not advance our understanding of the law because of its non-normative nature: it has no criteria to refer to other than itself. To remedy this situation, Voegelin must delve into an analysis of the society in which the law exists in order to uncover a normative standard to evaluate the law’s true order.
Paul DeHart on Jul 28, 2009 at 5:22 pm
What I find most interesting about these theses is the self-referential incoherence of what is termed here the conventionality thesis--an incoherence when said thesis is applied to morals or to law--and the rather absurd notion of obligation that attaches to the third thesis. One hears so often people speaking of the possibility of having a legal obligation that is in no way a moral obligation and that may even be opposed to a moral obligation, for instance. But while moral obligation is not a sufficient condition for legal obligation and while law and morality are not coextensive, moral obligation is certainly a necessary condition of legal obligation. As Locke said in his lectures on natural law, echoing Augustine at this point, without natural law, positive law is meaningless--for without natural law, positive law becomes nothing other than an act of force. And, as Rousseau noted, acts of force as such are not binding. What drops out without natural law? The bindingness of positive law. It's like the positivists want law without law.
But this brings me to a question, perhaps following Plato here: Doesn't law as such serve as a rule and measure of social relations? That is, doesn't law measure society? But then the thing measured must in some way be distinct from that which is measured for measurement to occur. In short, for law to function as law, must it not in some sense transcend society? That being the case, must not Voegelin go beyond an analysis of society as we have it? Must he not consider society as it should be? Or, perhaps, must he not go beyond human law to eternal law, which involves the society of more than merely human persons? If not, why not? If he does not have to, then in what sense is law a rule and measure for human society?