It Is Dangerous to Be Right When the Government Is Wrong - Andrew P. Napolitano [11]
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Dr. King, in his “I Have a Dream” speech, referred to the protection of Natural Rights as the promise made by our Founders to the American people. Proponents of Positivism must coherently argue why we should now uproot the entire basis for our independence and default on that promise. As we shall now see, they have not been able to make the argument coherently, but they have profoundly uprooted the basis of our independence with their material assaults on the Natural Law.
Positivism
Positivism teaches that law is whatever is affirmatively put forward by human lawmakers. To a Positivist, the law is whatever the lawgiver/lawmaker says it is. Consequentially, under Positivism all of our rights are granted to us by the government, and they can be taken away at the discretion of the government. The central feature of Positivism is that an act is considered a law simply if it was lawfully enacted and is enforceable. In other words, laws are those commands which people can be coerced into obeying. Thus, Positivists would contend that Hitler’s Final Solution, regardless of its morality, can be described as law. By contrast, Positivists expressly disclaim that there is any “higher law” with which human law must conform if it is to be truly considered a law. As discussed earlier, Positivism can be a very tempting legal philosophy, given that if government systematically disparages our rights, then as a practical matter it appears as if we do not in fact possess those rights. It is also tempting because, in a free society, whether a democracy or a republic, the majority in the government, the majority of those who write the law, have their way with no constraints. “The majority rules” is a popular, populist, and Positivistic taunt. It is also destructive of freedom.
Why did Positivism develop as a legal philosophy? After all, legal philosophies typically arise in response to a particular situation, just as Natural Law developed during a period of Absolutism, when it was believed that kings were divine, and thus they and their commands were superior to their subjects; during such times of tyranny, the inherent truth of the Natural Law is at its most obvious. Professor Barnett notes that we can literally see the truth of the Natural Law by observing the direction in which refugees travel—toward freedom, and away from oppression.
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Positivism is said to accomplish two objectives; the first is that law is “written,” and thus, persons do not have to worry about being surprised by unwritten legal obligations binding upon them. Positivists fear that judges who simply disagree with the collective judgment of the people may strike such laws down under the auspices of the Natural Law. If we are to err to any side, it should be the collective knowledge and experience of we the people, not judges. It is for this second reason, as we have seen, that Positivism is described as fundamentally majoritarian. Stated differently, no matter how ill-advised, unnatural, or immoral; how unlawful, unconstitutional, or hateful; how biased, self-serving, or fraudulent; under Positivism, the majority that lawfully controls the government lawfully gets its way. This is the second objective of Positivism.
There are, however, some problems with Positivism, several of which have already been discussed. First, Natural Law thinkers also recognize a need for written, man-made law which can provide guidance and a sense of certainty to the populace. They only pose the additional requirement that those written laws be grounded