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Legal Positivists Are Natural Lawyers

Random notes from an incomplete post, some taken from comments on a message thread with some other libertarians, some natural law types, some religious. I haven’t had time to edit it much yet. I leave this up for google to find various links etc. Ignore it otherwise.


The legal positivism versus natural law debate is confused. as noted here they are compatible.

But there are aspects of legal positivism which are odious, namely the idea that for law to be valid it has to be issued by some law-making sovereign, e.g. the king or a legislature. This understanding views nature as malleable; and conflates causal, descriptive laws with norms and prescription. It is true that a state can outlaw various forms of conduct, such as tax evasion, prostitution, and the like. But the laws of physics cannot be changed by legislation, contrary to what some Congressmen might think.

You think this because you shudder at the thought of not having deluded yourself that you have a natural law, is-ought bridging “proof” without which you might start wildin’. You do not seem to realize that even if you are right, this is irrelevant. Even if You would become a wild man without a proof, it’s irrelevant. Even if there is a proof, it’s irrelevant. You seem not to realize that human beings do actually have free will, and are not literally forced by arguments to accept or believe or act on them. You seem not to understand that even if you had the proof and showed it to someone, they could still defy it. You seem to be ignorant of the fact that this implies that, whether the universe is such that you can (as you desperately think), or cannot (as I wisely accept) “prove” rights, it requires the voluntary decision of each person to decide to be (what you call) “moral.” This is true in your world and in mine. It is true whether or not oughts can be proved. It is true because rights are inefficacious—which is true because there is a difference between fact and norm, between description and prescription. You seem not to realize this. You inhabit the world of incantations and spells, when the professors of knowledge say the right words and get their way.

The truth is, [X], that in the real world (my apologies), people either do, or do not, choose to be civilized. If they choose this, they choose it for any number of reasons: one of them might be some dusty tome or grad school paper. But it is not necessarily so. Your little proofs are neither necessary nor sufficient for someone to be good. What is necessary and sufficient is that they choose it, for some reason sufficient to them—which may or may not be a subtle argument (but in most cases—not: civilization could not exist as it is now if it depended on subtle arguments).

So you are utterly full of shit and unable to escape your grad school hologram existence. You are no different than me. I choose civilized norms, as do you. I have my reasons, as do you. You think yours are “better” because you dotted the i’s and crossed the fucking t’s. This is twittish, because quite obviously no argument can guarantee its “patient” act on it; we do have free will (apologies, again). Stop acting like a petulant amateur. Accept your fellow libertarians—those people who do step into the normative realm.

You are making the same simplistic mistake the religionists do. They are basically positivists: they think that only decrees of a sovereign—in their case, the Ultimate one, God—”count” as “real” moral law. They have this view, and without it, they are rudderless (they remind of [X] clinging to his natural law “proofs” and his fear that without them we are all like [Y, an amoralist]).

They don’t want to give up their humanity, so they refuse to give up the mystical God-exists-and-gives-us-moral-law views that they erroneously think is necessary for their humanity. Thus, I respect them: if I had to choose between my humanity and morality, and a scientific view of the world, I would choose the former. Luckily I don’t accept the false assumption that the former is dependent on rejection of the latter.

You however do. But you see that there is no law-giver, so you assume there is no law. You are just as fucked as the bible thumpers, except you choose cold, impersonal bullshit over your own humanity and the morality inscribed on your heart.

You are both schizo and tearing yourselves in two, but at least they go with their human side.

Wow. Then you are the worst of both worlds. You are an irrational, mystical theist and a relativist. I mean at least get something in the bargain, shit.

The error is thinking there is a tradeoff between mysticism and relativism. The theists usually side with mysticism to avoid relativism (natural law types do too—they just substitute natural law for God—me, if I’m gonna accept the stupid dichotomy, I’d take mysticism over relativism (since my choosing good unavoidably does this), and if I’m gonna take mysticism, I’ll take a real, established religion rather than a fake, pretend, in-denial one like “natural law,” or, worse, stateocracy).

Okay but do you think God is in some sense the “source” of moral truth? That if there were no God, the things we think of as morally true would not, in fact, be? It seems to me you have to believe this. If you don’t, then you think what morals there are are somehow “embedded” in the nature of reality, whatever the fuck this means, and are not dependent in any way on God—in which case God is irrelevant. I don’t see how you can have it both ways.

From my post Natural Law, Positive Law, Tax Evasion, Rituals and Incantations:

Yes, Irwin Schiff is–tragically, shamefully—in jail for tax evasion, “Because the judges who sit in judgment of him are paid their salaries by income taxes.” At least indirectly. But taxes are clearly not voluntary, and it is illegal to evade income tax. If the courts of a given system actually enforce a rule—provide penalties for not following the rule—this is what it means for the rule to be a law. It’s a positive law, to be sure—but a law nonetheless (this is where the natural law types like Lon Fuller are wrong). And it’s not only the courts—it’s the legislators, too. The tax protestors are simply wrong to say it “is” “not illegal” to evade income tax; it clearly is illegal, since the legal system does impose penalties for this conduct.

Furthermore, the tax protestors are wrong to argue that this law is not provided for by statute. It is. And if they ever succeeded in persuading some judge that it was not, the tax statutes would simply be clarified to plug the hole. Remember when the income tax was rejected by the Supreme Court, what happened? They amended the Constitution to make it constitutional.

Often the tax protestors adopt a sort of hyper-natural law stance in which they capitalize Law, in a crankish and quasi-mystical way, and refuse to even call something “Law” if it is not just. This has echoes of the Hart-Fuller debate where Fuller took the “natural law” view that law and morals cannot be “separated,” whatever this nonrigorous nonsense is supposed to mean. Hart took the “legal positivist” view that there is a difference between what law is and what it should be. I’ve always found this debate to be frustrating because the natural law side, with which I’m of course more sympathetic, seems confused and to misunderstand the positivist position. The basic idea of legal positivism—that it is possible to identify something as a law, even if it is unjust—seems to me to be obviously correct, and not even contrary to natural law thinking. It is currently illegal to sell cocaine or one’s body for sexual services or to evade income tax—but it should not be. Just law—law compatible with libertarian principles—is what positive law should be. Libertarian law, just law, is like a template or ideal by which actual, enforced law can be compared, or aspire to. (For discussion of the role of abstract libertarian principles being used to develop more concrete ethical and legal rules, see my Knowledge, Calculation, Conflict, and Law, pp. 60–63; and The Limits of Armchair Theorizing: The Case of Threats.)

But to determine what the law is, one must see what rules are enforced. Oliver Wendell Holmes’s “bad man” theory of law always made a certain amount of sense to me—his view that the law is a prediction of what courts will do; it’s based on the notion that bad men “care little for ethics or lofty conceptions of natural law; instead they care simply about staying out of jail and avoiding paying damages. In Holmes’s mind, therefore, it was most useful to define ‘the law’ as a prediction of what will bring punishment or other consequences from a court.” Now we must keep in mind that identifying something as law does not mean it is just.

The tax opponents often seem to try to intentionally blur this line. When they should be arguing “the current law against tax evasion is unjust and immoral,” they say, “there ‘is’ no law against tax evasion.” They want their factual, descriptive “is” word to do the work that “should” ought to be used for. But such tricks cannot work. As Brian Doherty notes in a perceptive article,

The tax honesty movement’s vision of the world is fantastical in another way. It is not merely obsessed with continuity; it is magical in a traditional sense. It’s devoted to the belief that the secret forces of the universe can be bound by verbal formulas if delivered with the proper ritual.

(See Doherty’s It’s So Simple, It’s Ridiculous; also and Five Reasons You Don’t Owe Income Tax, Dammit!) See also Huebert’s perceptive comments about the futility of thinking we can achieve liberty by just finding the right arguments to persuade federal judges: as he notes, the authors of a book he is commenting on “seem to think that restoring liberty is really only a matter of overturning a handful of bad court precedents. If we can just get in front of judges and do that — apparently through the irresistible power of our arguments and our lawyers’ outstanding legal skills — we can finally achieve liberty across the land.”

Doherty’s analysis is so biting and devastating, in showing that the income tax protestor types have an essential Protestant and also fandom type mentality, that I must quote him at length:

Their devotion to their beliefs is certainly religious. Indeed, tax litigation consultant Daniel Pilla, author of The IRS Problem Solver, says they’re “like programmed cult members—you can’t reason with them.” More charitably, the tax honesty people are staunch exemplars of America’s glorious Protestant heritage.
This observation is not merely a pun on their status as “tax protesters.” Their attitude toward the Constitution and the statutes and legal decisions regarding the income tax are uniquely Protestant, relying on a layman’s ability—indeed, obligation—to read and study and parse the original documents himself, to come to his own personal relationship with the law and the cases, and to prefer his understanding to that of the priesthood of lawyers, judges, and accountants.
“Case law”—the kind that proves that you can and will be arrested or fined for not filing or paying income tax—means nothing to them; they like to rely strictly on the statutes as written, or on Supreme Court cases and straight constitutional interpretation. Irwin Schiff, the godfather of the movement, is insistent that you shouldn’t just take his word for anything: You should check the statutes. He is, he declares, the biggest reseller of the published version of the U.S. tax code. He sells specially tabbed copies leading you straight to the pages in the multithousand-page behemoth you must see to understand his own interpretations.
Not merely Protestant, the tax honesty people are strangely reminiscent of fandom—of the comic book, fantasy, science fiction, role-playing-game variety. They have the same obsession with continuity and coherence within a created fantasy world of words. It’s just that, in this case, that world of words isn’t a multivolume fantasy epic or a long-running TV series—it’s U.S. law. When these people try to reconcile the definition of income in this subsection of Title 26 of the U.S. Code with the definition in a 1918 Supreme Court case, it’s like hearing an argument over the inconsistencies between a supervillain’s origin as first presented in a 1965 issue of The Amazing Spider-Man and the explanation given in a 1981 edition of Peter Parker, the Spectacular Spider-Man.
The tax honesty movement’s vision of the world is fantastical in another way. It is not merely obsessed with continuity; it is magical in a traditional sense. It’s devoted to the belief that the secret forces of the universe can be bound by verbal formulas if delivered with the proper ritual. There are numerous formulae in the tax honesty spellbook, with rival mages defending them. Which spell is best: The summoning of the Sovereign Citizen’ The incantation of the Constitutional Definition of Income’ The banishing spell of No Proper Delegation’
The tax honesty folks similarly believe that their foe the IRS must also be bound by these grimoires of magic: that without the properly sanctified OMB number an IRS form holds no power, that without uttering the mystic word liable no authority to tax can truly exist.
And always, always, the ultimate incantation, The Question: Where does it say that I owe income taxes‘ Show me the law!
God that is such a brilliant passage.
So, to sum up: the tax statutes do penalize tax evasion. The legislators want it this way. And the courts do act on this—and put people in jail. It is illegal to evade income tax. And, yes, this is monstrous—but there it is. And, unfortunately, I don’t think there’s any incantation, spell, or ritual that will persuade judges or legislators to see the light and start protecting our liberty. And given how dangerous the state is, it is prudent to recognize reality.

Update: Predictably, I’ve gotten a flurry of emails from the tax protestor types, ranging from the tired old “SHOW ME THE LAW” to “your tone is bad, it will make people think it’s hopeless,” to “I don’t care what the law is.”

As for tone comment—I think it’s prudent and not unlibertarian to be realistic and not to be self-delusional. Call me crazy. But this opposition to truthfully recognizing an unjust law is one of the reasons activism is dangerous—it makes people conflate substance and truth with tactical, strategic concerns—they start to identify truth with “what motivates or inspires or persuades people,” and conversely, if something is unpleasant, it’s “not true”—the ostrich approach to reality. I don’t think libertarianism requires one to be an ostrich or a martyr. (See my The Trouble with Libertarian Activism .)

Again quoting Doherty:

The tax honesty folks similarly believe that their foe the IRS must also be bound by these grimoires of magic: that without the properly sanctified OMB number an IRS form holds no power, that without uttering the mystic word liable no authority to tax can truly exist.

And always, always, the ultimate incantation, The Question: Where does it say that I owe income taxesShow me the law!

The tax honesty types have such trouble even imagining an unjust law that they just cannot accept that tax-evasion-criminality—which is clearly unjust—can really be illegal. For clear explanations (not that the tax honesty types care) of why federal legislation is behind tax evasion laws, see Doherty’s It’s So Simple, It’s Ridiculous and Five Reasons You Don’t Owe Income Tax, Dammit!; also Income Tax: Voluntary or Mandatory?; Tax Fool; and Why I won’t join the tax protesters.

Some have accused me of legal positivism—well, sure, if you mean the belief that it’s possible to identify and recognize a given rule as a law, even if it’s unjust; but not, of course, if you mean the belief that only commands of the sovereign count as genuine law (in fact my opposition to this type of legal positivism is one reason I am skeptical of many natural law arguments: they are also positivistic in this sense, in that they believe that while the legislature may not decree true “Law” or morals, God can; they just push it back a level. My view is that not even God can make evil good).

(See also my posts Logical and Legal Positivism and Legislative Positivism and Rationalism in the Louisiana and French Civil Codes.)

The legal positivism (in the pejorative sense) of the natural law types can also be seen in their repeated SHOW ME THE LAW question. They are so used to the modern, positivist system of written constitutions and law-as-legislation that they seem to have trouble thinking of law as something other than “what’s written in ‘the lawbooks’”.  But a written Constitution is not the only way to have a constitution, as Britain’s centuries-old unwritten constitution shows; in fact, it’s better, I would argue, than an artificial, naive, utopian, constructivist one like the failed American one. And statute is not the only way to make law–or even a good, or legitimate, way, in my view (see my Legislation and the Discovery of Law in a Free Society). Laws are the rules that are legally enforced–as I noted above with reference to Fuller and Hart and Holmes’s realistic “bad man” theory of law–and these rules need not emanate only from “the law books” or a written Constitution. To think so is to succumb to the legal positivism that dominates our legislation-ridden age. (There are innumerable types of unwritten rules, including even unwritten “internal rules” of the state itself–see Alfred G. Cuzán’s classic paper “Do We Ever Really Get Out of Anarchy?, and his forthcoming JLS paper Revisiting “Do We Ever Really Get Out of Anarchy”.)

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