Libertarians are used to thinking in terms of natural law and natural rights. In terms of principles, reason, and justice. That is, that we can use our reason to arrive at ethical or normative conclusions that will allow us to evaluate existing positive law. Laws “exist,” or are in force, in a given legal system; but some are bad, some are good. Some are just, some are unjust. That is, we can identify some legal rule as law, whether good or bad law, and we can then criticize the bad laws. The legal positivists, such as H.L.A. Hart, were right about the former point, and the natural-law lawyers, like Lon Fuller, were wrong. It is possible to identify a law as existing, in-force law, as positive law, even if it is unjust. But the extreme statist and legal positivists are wrong to claim that the only law is that announced by a sovereign which implies that there are no external, “higher law” grounds from which to criticize existing positive law. The natural lawyers are right, here. Libertarians have no problem with accepting the legal positivists’ contention that an unjust law can exist and can be recognized as an existing law, since we believe in a higher law—our libertarian principles—which means we do not condone an unjust law simply by recognizing that is law.1
The entire statist paradigm has corrupted all of this. When you view the state as necessary and as the natural or obvious “source” of law, arguments over what the law “should be” or “are” become contorted. Instead of appealing to logic, justice, reason, and even intuitions, custom, equity, etc., you start appealing to sources: to some sovereign or authority. Legal positivists might say that the only real law comes from a sovereign—a state—and since they are statists like most people, they assume this is the only way that can be. Law can only be provided by the state. If you oppose the state, the sovereign, then you oppose law, order, and government itself; you favor chaos. This is the statist mindset. And so of course now they are trapped in their statist stupor, and so the more humane or humanist or secularist, influenced by some of their latent and natural intuitions, try to inject some natural justice, or temperance, into the amoralist system they dimly realize that they have unwittingly supported. So they start to glom onto things like “human rights law” or “democracy” as some kind of amorphous intuitive outside principles to limit the bloodless, murderous system they have helped to put into place with their might-makes-right legal positivist attitude. It also makes them somewhat dishonest in their arguments. For example someone opposing a law for whatever reason, will try to argue that it “is” unconstitutional, as they are just stating a fact. But often what they are really saying to the court is: we want you to declare this law to be unconstitutional, because we think it’s bad law and we hope you feel the same. Or the natural law lawyer, instead saying an existing law is bad or unjust, will say, using crankish capital letters, “an unjust law is no Law at all!” So instead of saying the state or the legal system is doing something wicked by enforcing an unjust law, they try to deny it the status of law at all… sorry, “Law.” Hokay!
In any case—I’ve pointed out before how legal positivism now dominates the major legal systems of the world.2
As pointed out by John Henry Merryman:
Another dimension of the movement toward state positivism was provided by the secular character of the revolutions in Europe. Although there were variations in form and degree from nation to nation, the idea that law was of divine origin—whether expressed directly, as in divine (i.e., scriptural) law, or expressed indirectly through the nature of human beings as created by God, as in Roman Catholic natural law—had lost most of its remaining vitality. Formal respect might still be paid to the deity in the lawmaking process (as, for example, in the American Declaration of Independence), but the operating theory had become that the ultimate lawmaking power lay in the state. Roman Catholic natural law had lost its power to control the prince. Secular natural law, while providing many of the ideas that were the intellectual fuel of the revolution, was ineffectual as a control on the activity of the state. It was backed by no organization and had no sanctioning power. The perennial controversy between natural lawyers and legal positivists (familiar to all students of legal philosophy) thus was decisively resolved, for operational purposes at least, in favor of the positivists. Consequently, although this debate still goes on, it has had a distinctly academic flavor since the emergence of the modern state. All Western states had become positivistic, at least until the age of globalization.
… The ideology of the French codification, though more temperate than that of the immediate postrevolutionary period, accurately reflects the ideology of the French Revolution. For example, one reason for the attempt to repeal all prior law, and thus limit the effect of law to new legislation, was statism—the glorification of the nation-state. A law that had its origins in an earlier time, before the creation of the state, violated this statist ideal. (( John Henry Merryman & Rogelio Pérez-Perdomo, The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America, 4th ed. (2018), pp. 20–21 & 28. ))
Thus, legal positivism is, in the end, the idea that the only “real” law is that announced by a sovereign—the state. This naturally leads to a statist conception of law and to the corruption of the law.
This is conspicuous in the French Civil Code of 1804 (or Code Napoléon), for example, and in the French Projet du gouvernement of 1800, which enshrines legislation as the only source of law in its opening articles.3
As a brief overview: we had ancient Roman law, a decentralized body of law; then the English common law, another decentralized body of law. Both resulted in well-developed bodies of private law, and of course there was some influence of Roman law on the English common law.4 In modern times we have the common-law influenced systems of the U.K. and the commonwealth nations and former colonies such as the United States and India; and the civil-law or continental law of European countries, which derived from the earlier Roman law and other sources such as Visigothic law, canon law of the Roman Catholic Church, custom, and so on. There is also lex mercatoria, international law, canon law of the Church, and the Muslim Sharia law. But the dominant legal systems of the modern world are English/UK/US common law, and European continental civil/Roman law. What they share in common is they both originated in decentralized legal systems deciding private cases, resulting in a great body of private laws that are often similar substantively, if not in terminology. (See chapter 13 of my forthcoming Legal Foundations of a Free Society.)
This way of looking at it is contrary to the conventional perspective of legal positivists, who see civil or continental law as being based on legal positivism and legislation in contrast with the English common law which is decentralized and judge-based. Yet the truth is that the English common law has become increasingly surrounded by a sea of legislation, and the European civil codes and civil law, which were legislated, and which also invited an avalanche of special-interest legislation, where themselves elegant, legally scientific codifications of previous systems of decentralized law—the Roman law, and subsequent European customs and laws.
In any case. The first modern and “scientific” codification of the ancient Roman+ legal principles was the Code Napoléon or French Civil Code, or 1804. This has inspired modern codification efforts in other jurisdictions—Italy, Germany, Switzerland, Greece, Louisiana, Latin America, and so on.
Now as I have noted, although these codes are often elegantly-organized and worded restatements of previously-developed legal principles, one drawback is that these codes were intended as statutory drafts; that is, they were to be enacted into law by the legislature. And in so doing, the preliminary articles often recognize this and enshrine legal positivism (recognizing that legitimate law can only come from positive commands or decrees of some centralized state sovereign) and legislative supremacy (meaning that the legislature can always override previous customary law by their legislative decrees), or even that only legislation is law.
Legislative supremacy, of a kind, is announced in the very first articles of the Louisiana Civil Code. Article 1, similar to language in the French projet du gouvernement of 1800, provides that “The sources of law are legislation and custom,” but article 3 makes it clear that legislation is dominant and supreme: “Custom may not abrogate legislation.” See also Shael Herman, The Louisiana Civil Code: A European Legacy for the United States (Louisiana Bar Foundation, 1993), p. 17. Louisiana’s civil law is derived in large part from Spanish and Roman sources, though using the French code’s style, organization, and sometimes text as the means to codify this Spanish-Roman law. (This, by the way, is a controversial and complicated issue among Louisiana legal scholars; I tend to agree with Pascal and Levasseur, and disagree with Batiza and Herman, as a legal matter, despite disagreeing normatively with Pascal’s opposition to individualism and economic liberalism and despite agreeing with Herman’s more liberal and individualist inclinations.)5
Yet some scholars note that the Louisiana code is not quite as “rationalistic” or legal positivistic as the French code, since it also admits custom as a source of law, and, importantly, also provides: “When no rule for a particular situation can be derived from legislation or custom, the court is bound to proceed according to equity. To decide equitably, resort is made to justice, reason, and prevailing usages.” La. Civ. Code, art. 4 (emphasis added).
See also commentary on this issue by three important Louisiana legal scholars. A.N. Yiannopoulos writes:
however, the Louisiana Civil Code differed from the Napoleonic Code in its approach to the fundamental matter of sources of law. The extreme legal positivism of the Code Napoleon that has elevated legislation to the status of the single source of law may be contrasted with the genius of the Louisiana Civil Code that has always recognized custom as an authoritative source of law and equity as a source for the resolution of disputes in the absence of a positive law or custom.6
Pascal writes, in the previously-mentioned review (p. 830):
Thus whereas the French restricted law (in the sense of the legal order) to legislation enacted by the French Assembly, not even recognizing custom, and refused to allow judges to resort to philosophical notions of just order even in the absence of legislation, in the Louisiana Digest of 1808 and the Civil Codes of 1825 and 1870 the view of the legal order is quite different. Both legislation and custom (which Professor Herman does not mention) are recognized as positive law to this day and, in the absence of legislation and custom, judges are directed to decide according to equity, defined in 1808, 1825, and 1870 as resort to received usages, natural law, and reason.
See also further quotes from Pascal, and from Herman, with a different take (and the one criticized by Pascal), in Logical and Legal Positivism.
Finally, Professor Olivier Moréteau writes:
“In 1825, the [Louisiana] Digest was replaced by a Civil Code, also drafted in French and translated into English, this time abrogating “the Spanish, Roman and French laws” in force at the time of the Purchase on all matters governed by the Code (art. 3521). Then an Act of 1828 proceeded to a general repeal of all the civil laws in force before the Civil Code. However, in a 1839 case (Reynolds v. Swain), the Louisiana Supreme Court declared that this repeal was confined to positive or written law and could not apply to the unwritten laws, citing among others the revealed law, the natural law, and the law of nations: in the opinion of the court, what had not been enacted by the Legislature could not be abolished. At least at that time, this made Louisiana law remarkably different from French law; legislative positivism was rejected, with judges preferring to rely on the tradition and principles of natural law.7
For further discussion of the Louisiana Civil Code, its history, and related issues, see Herman, The Louisiana Civil Code: A European Legacy for the United States; Alain A. Levasseur “The Major Periods of Louisiana Legal History,” Loyola L. Rev. 41, no. 4 (Winter 1996): 585–628; Yiannopoulos, “The Civil Codes of Louisiana”; Richard Holcombe Kilbourne, Jr., A History of the Louisiana Civil Code: The Formative Years, 1803–1839 (Baton Rouge, La.: Center for Civil Law Studies, Louisiana State University, 1987); also John Henry Merryman, The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America (Stanford, California: Stanford University Press, 1985) and Peter G. Stein, “Roman Law, Common Law, and Civil Law,” Tulane L. Rev., 66, no. 6 (1991–92): 1591–1604.
- See my post Higher Law. [↩]
- Logical and Legal Positivism. [↩]
- The 1804 French Civil Code, in English, may be found at Code Napoleon: or, The French Civil Code (London: William Benning, 1827; https://perma.cc/7CEZ-Q2D5). [↩]
- See Peter G. Stein, “Roman Law, Common Law, and Civil Law,” Tulane L. Rev., 66, no. 6 (1991–92): 1591–1604; Edward D. Re, “The Roman Contribution to the Common Law,” Fordham L Rev. 29, no. 3 (1961): 447–94. [↩]
- See Robert A. Pascal, “The Louisiana Civil Code: A European Legacy for the United States. By Shael Herman,” Louisiana L. Rev. 54, no. 3 (Jan. 1994); and Alain A. Levasseur, “Grandeur or Mockery?”, Loyola L. Rev. 42, no. 4 (Winter 1997). [↩]
- A.N. Yiannopoulos, “The Civil Codes of Louisiana,” Civil Law Commentaries 1, no. 1 (Winter 2008): 0–23, at pp. 16–17 (also included in idem, Civil Law System: Louisiana and Comparative Law: A Coursebook: Texts, Cases and Materials, 3d ed. (Claitor’s 2000). [↩]
- Olivier Moréteau “Louisiana 1812-2012: 200 Years of Statehood and 300 Years of French Law Influence,” in the Feb. 2012 La. Bar J. [↩]