Does this Paragraph Make Any Sense?

Does the following paragraph from The Global Commons: An Introduction, by Susan Buck, a book I’m considering for my environmental politics course next term, make any sense?

In the sixteenth century, two schools of jurisprudence–analytic jurisprudence, or legal positivism, and natural law–led to competing views of international relations. To oversimplify, legal positivism describes the law and identifies actors and policies in a context that supports, if not encourages, capitalism, whereas natural law assumes the existence of a moral code that is independent of human needs and desires and against which human activity can be measured. One school of thought is individualistic, the other is egalitarian or hierarchical. (p.23)

16th century legal positivism “supports, if not encourages, capitalism”?

Natural law is “egalitarian or hierarchical”? (Emphasis added.)

Do those statements make a sense that I’m just missing?

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About J@m3z Aitch

J@m3z Aitch is a two-bit college professor who'd rather be canoeing.
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9 Responses to Does this Paragraph Make Any Sense?

  1. D.A. Ridgely says:

    No.

    As a threshold point, while the term “legal positivism” apparently does show up in some medieval legal philosophy, the term today is well understood to denote a legal philosophy beginning primarily with John Austin (1790–1859) which stresses understanding legal systems without recourse to normative evaluation. Austin was also a pioneer in analytical jurisprudence, an approach concentrating on the understanding of essential legal concepts and terms as parts of the whole rather than sweeping metaphysical or moral generalizations.

    The critical point, however, is that analysis is an approach or technique, not a substantive school of thought, and legal positivism literally takes no position on whether the legal system in question is individualistic, hierarchical, egalitarian, Nazi, communist, supportive of a market economy, etc., etc. (Classic example: from a positivist’s POV, Nazi laws persecuting Jews were, despite their gross injustice, nonetheless really laws.)

    The phrase “natural law assumes the existence of a moral code that is independent of human needs and desires and against which human activity can be measured” is more or less accurate. The rest is nonsense unless, at the very least, she acknowledges that she is not using technical terminology as it is generally understood by lawyers and philosophers but giving it some, to put it mildly, novel meanings.

  2. ppnl says:

    If you will allow an amateur to comment…

    It seems to me that legal positivism can support just about anything as long as the laws are written to do so. Did 16th century legal positivism support capitalism? Seems like a statement about history. I’m not sure what the cut between supporting and encouraging is. Allows but does not require?

    As for the second one how about:

    “…the other is [either] egalitarian or hierarchical.”

    Old moral codes tended to be hierarchical. The King ruled by divine right and the church was Gods voice on earth. As the codes become more modern there is a shift to egalitarianism. But the basic idea of a natural God given order to things is the same.

    I’m not sure what the cut with “individualistic” is. I can make sense of “individualistic moral code” but what is the meaning of “individualistic natural law”?

    Sorry if I’m making less sense than your students.

  3. Murali says:

    It seems to me that legal positivism can support just about anything as long as the laws are written to do so

    Legal positivism does not support anything. All it says is that such and such is the law, not whether or not we ought to obey it, comply with it or enforce it.

  4. James Hanley says:

    DAR–Thank you. I was hoping you would comment, as I know you’re more familiar with legal theory and history than I am (although I apparently am more familiar with it than the author is). I had never before heard the suggestion that legal positivism supported or encouraged capitalism, so it sounded fishy to me. I can sort of see the point, as a particular approach to natural law might militate against the pure profit motive. But she obviously admits–as ppnl notes–to different views of natural law, so I don’t see how a natural law vision that favors capitalism would be in any way unthinkable (in fact it seems to be an approach that many libertarians take). And legal positivism is perfectly up to the task of analyzing the law in communist countries, no?

    ppnl–If we didn’t allow amateurs to comment, our readership would shrink to about three or four people. Amateurs aren’t only allowed, they’re encouraged, begged, pled with, etc., to comment regularly and often.

  5. D.A. Ridgely says:

    And legal positivism is perfectly up to the task of analyzing the law in communist countries, no?

    Absolutely. (As, btw, I stated above.) “Positivism” as a single term has a somewhat checkered past unless, of course, one’s tastes run to Comte or Durkheim. (And mine don’t.) Modified by “logical” or “legal,” on the other hand, it’s fairly well established what the family tree looks like and how far back it goes. In the case of legal positivism, it’s Austin to Kelsen to Hart (and, I suppose, Raz) like the Tinker to Evers to Chance of jurisprudence.

    An amusing legal positivism anecdote (and how often will you ever read that claim?):

    My grad school legal philosophy mentor, the late Tony Woosley, wrote what must be the shortest book review in the annals of academic book reviews. Reviewing a new English translation of one of Kelsen’s works, he wrote “The English speaking world has long needed a good translation of Hans Kelsen’s Pure Theory of Law. It still does.”

  6. James Hanley says:

    (As, btw, I stated above)

    Ah, you should know that if you put Nazis in a sentence, nothing else gets noticed.

    An amusing legal positivism anecdote (and how often will you ever read that claim?):

    Perhaps only once in my life, which is to say, not nearly often enough.

  7. Ed Darrell says:

    I’m confused. I don’t do well with the philosophical end of this stuff — and I wonder, sometimes, if we don’t overdo the philosophy, because its influence is really not so great.

    For example, I doubt anyone sat down in in the sixteenth century, nor any time since then, and said “because I’m a legal positivist, I’ll support X environmental law over Y.”

    Plus, I wonder whether environmental law isn’t better grounded in tort, trespass and nuisance law. My property professor was a master at the old stuff. We had a two-semester game course on development of another airport for the Los Angeles Basin, in which we all had to play roles straight up, based on the laws that really exist. Time after time we’d find a modern environmental law that we thought offered a solution to one of our issues, and he’d push us to study nuisance, or trespass, to see if there were not an easier and better way to argue the thing.

    In no environmental course I ever took did I learn that “waste” is prevented on one’s own land, because it poses a nuisance to next-door landowners — a concept running back several hundred years, when some English landowner cut down all the trees on his property, driving vermin and erosion next door. That was from property law.

    I miss Professor Brown, often.

  8. D.A. Ridgely says:

    Offending apostrophe removed, Mr. Darrell.

    The trouble with Aldred’s Case and the like is that in reliance upon that sort of common law approach the courts will tend to see such disputes as zero sum games. Even when they attempt to balance conflicting rights and interests and effect some sort of compromise, there is little reason to believe the judge will value those rights and interests as the interested parties do. Hence the advantages of the Coase Theorem over traditional (natural) rights focused adjudications.

    Which is to say that philosophy or, more broadly, theory does make a difference. Not directly, of course. But in what I think of as its trickle down influence.

    Besides, who the hell wants to figure out if the form of the action was trespass or trespass on the case? *grin*

  9. James Hanley says:

    An interesting comment from Mr. Darrell, because that approach is much more commonly advocated by libertarian-minded environmentalists than by those who are more liberal in general outlook. Not that I’m complaining, mind you. Like his prof, and with DAR’s warnings in mind, I think there’s still great environmental value to the common law. And it sounds like his prof did it the right way–instead of just proclaiming the superiority of a particular approach, he challenged his students to work it out for themselves.

    For the record, I learned about nuisance as a constraint on turning one’s property into a dump in an environmental economics course, one of the hardest but most rewarding classes I ever took. I’m teaching environmental politics for the second time next term, and I think I’ll take Mr. Darrel’s comment to heart and incorporate more of that approach into it.

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