I spotted an abstract for what looks like an interesting paper by Charles Reid at the University of St. Thomas Law School, titled “The Three Antinomies of Modern Legal Positivism and Their Resolution in Christian Legal Thought.” The abstract is quoted below, and the paper, which has been published in the Regent University Law Review, is available on SSRN. Legal positivism, in brief, is an essentially utilitarian school of jurisprudence that denies any connection between positive (humanly enacted) law and morality or “natural law.” It is the dominant school of jurisprudence in the U.S. Reid’s article provides an excellent overview of what legal positivism claims, and suggests a number of ways in which the deep traditions of Christian jurisprudence provide better answers to some important legal issues. I haven’t had time to digest the article yet, but if you’re interested in law and Christian thought, this seems like an excellent primer that goes far beyond the shallow “Christian America” arguments sometimes found at the popular level.
Abstract quoted in full:
Christian legal thinkers have shaped and formed Western law from
the latter days of the Roman Empire until nearly our own age.
Historically, Christianity is of immense importance to the shape
and substance of Western law. However, in the United States
today, Christian legal scholars who seek to apply
self-consciously Christian norms to the resolution of legal
problems are accustomed to thinking that their work is
marginalized. Even so, American Christians who take their faith
seriously, who see it as relevant to questions of law, should
take up the task of explaining exactly how it is relevant, how it
can help to resolve pressing legal problems. Harold Berman
recently observed that “[w]ith rare exceptions, American legal
scholars of Christian faith have not, during the past century,
attempted to explain law in terms of that faith.”This article examines the three great antinomies – that is,
contradictions within the law – of modern jurisprudence and
suggests how Christian jurisprudence might help to resolve them.
Three antinomies have come to shape much modern thinking about
the nature and function of law: (1) Law consists of commands
backed by power, force, and external compulsion, and questions
concerning the rightness or justice of those commands are not to
be considered when determining whether a particular act of
sovereign will should be considered to be law. (2) Law and
morality should and must be viewed as existing as separate and
apart from one another, such that the moral content of a
particular sovereign decree is not used in determining whether to
count a particular sovereign decree as law. (3) In determining
whether a particular command, rule, or principle should count as
law, one is allowed only to consider its formal source,
irrespective, once again, of its content.These are three antinomies in legal analysis that the average
lawyer works with every day and that the average student of
jurisprudence takes for granted as part of the foundation of her
or his view of the legal world. They are antinomies because they
seem to be at war with our instincts as to what should or should
not count as law. Indeed, they are at war with other deeply
cherished elements of the legal order. Law should be about
justice. Power should be in the service of justice. Law and
morality should not occupy separate spheres. Law should not only
regulate conduct, but should seem to be inherently good.The author contends that contemporary jurisprudence, by which he
means the legal positivism that has come to prevail especially in
the Anglo-American academy, embodies within itself these serious
contradictions – “antinomies” – which can best be resolved by
paying studious attention to some of the teachings of modern
Christian jurisprudes. In contrast to the great antinomies of
positivism, Catholic social thought emphasizes the integral
connections between justice and law; the inseparability of law
from morals and values; and the need to ground the validity of
law not in a formal analysis of state authority but in human
nature itself.
2 replies on “Christian Jurisprudence and Legal Positivism”
First, there’s no internal connection between utilitarianism and legal positivism. It just happens to be the case that both utilitarianism and positivism dominate legal scholarship.
Second, the antinomies he cites are only antinomies for natural law theorists. The rest of us have no problem with noting that laws can be unjust. Jim Crow, for instance, was both law and unjust. No (logical) problem there.
And, so far as I can tell from my cursory read of the article, the article never really problematizes the distinction (the one passage in which it’s attempted is so brief that, even if it were satisfying [which I doubt it could be], it can’t really do the work required of it.)
First, there’s no internal connection between utilitarianism and legal positivism. It just happens to be the case that both utilitarianism and positivism dominate legal scholarship.
I don’t agree with you here. It’s no accident that Bentham is one of the fathers of both utlitarianism and legal positivism. The two go hand-in-hand: if positive law is not connected to moral law, the only conceivably legitimate purpose of positive law is a utilitarian one.
Second, the antinomies he cites are only antinomies for natural law theorists. The rest of us have no problem with noting that laws can be unjust. Jim Crow, for instance, was both law and unjust. No (logical) problem there.
I suppose that depends on how you define “unjust.” It seems to me that it is an antinomy (or at least an inconsistency) to speak of positive law as clashing with some internal moral sense about justice if legal positivism / utlitarianism are correct. Who cares about any internal moral sense of justice if that sense is essentially meaningless and positive law is basically a utilitarian exercise?