prior probability

In their entry for “legal positivism” in the Stanford Encyclopedia of Philosophy (SEP), Leslie Green and Thomas Adams define this theory of law as “the thesis that the existence and content of law depends [sic] on social facts and not on its merits.” But what is a “social fact,” and which social facts are relevant to law? One of the earliest-recorded responses to these difficult theoretical questions–and perhaps the most influential one–was offered by the person of Thrasymachus in Book I of Plato’s Republic, where in response to Socrates, he famously asserts that “justice is in the interest of the stronger.” Although Green & Adams do not mention Thrasymachus or The Republic in their SEP review essay, I would argue that all major strands of modern legal positivism can ultimately be traced back to Thrasymachus’s cynical but realistic conception of justice in Plato’s Republic. With this background in mind, I will now introduce simplified versions of the major theories or types of legal positivism.

First is Theory T1 (or legal positivism 1.0), “the command theory of law” put forth by English legal theorist John Austin (1790–1859). On this view, law is the command of a sovereign backed by force or some other negative sanction. Next is Theory T2 (or legal positivism 2.0), Austrian jurist Hans Kelsen’s (1881–1973) so-called “pure theory of law.” According to Kelsen’s abstract theory, individual legal norms are part of larger systems of law and all such norms or rules in a given system must ultimately be traced to a fictional “basic norm” of that system. Last is Theory T3 (or legal positivism 3.0), H.L.A. Hart’s (1907–1992) “rule of recognition” and “internal point of view” of public officials like judges and legislators. Stated in its most simplified form, law is neither based on force nor on a fictional basic norm; law is whatever guides or shapes the behavior of public officials. Law is whatever public officials think the law is.

We will explore the strengths and weaknesses of all three theories of legal positivism in future blog posts. For now, I just want to identify the influence of Thrasymachus on all three of these theories of law. To begin with, Austin’s command theory and the cynical notion that “justice is nothing but the advantage of the stronger” appear to be almost interchangeable. By definition, the sovereign in Austin’s command theory is “the stronger” in Thrasymachus’s famous formulation of justice. Next, with respect to Kelsen, the fictional “basic norm” in Kelsen’s pure theory of law appears to carry out the role of the sovereign or “the stronger” set forth in previous formulations of legal positivism. Moreover, to the extent actual systems of law benefit the powerful, one could argue that Kelsen’s “basic norm” is just a subterfuge to legitimate “the interest of the stronger.”

Last but not least, what about H.L.A. Hart? Are there any shades of Thrasymachus in Hart’s sociological-psychological theory of law? To the extent Hart’s realist theory of law emphasizes the behavior of public officials, don’t these officials, by definition, form a kind of “class” or elite who, collectively, play the role of “the stronger,” since they get to decide what the law is? We will return to Austin, et al., and further explore the connection between Thrasymachus’s formulation of justice and modern theories of legal positivism in our next few posts  …

Artist credit: cluin (via DeviantArt)

Before I begin blogging about legal positivism, I want to go on the record and send the following succinct message to the Florida Board of Bar Examiners: it’s time to pull your heads out of the sand and cancel the in-person July bar exam. Students who graduated from an ABA-accredited law school should be awarded a provisional license to practice law, subject to good behavior. (Full disclosure: Although I am licensed to practice law in the Commonwealth of Puerto Rico 🇵🇷, I am a law professor in the State of Florida.)

My friend and colleague Josh Blackman writes, “Would a constitutional challenge to a mask-mandate be viable? Under Jacobson v. Massachusetts the answer is no. Is Jacobson consistent with a century of Due Process Clause jurisprudence? No. Several judges have already begun to cast doubt on that precedent.” (FYI: here is the Wikipedia entry for the Jacobsen case.) For his part, Professor David Super explains why the First and Ninth Amendments in the original Bill of Rights might protect one’s right to refuse to wear a mask, even in a pandemic. Alas, my dear law professor colleagues are, as usual, “overthinking” this question. The central issue here is, Can the government require you to wear a mask in public? Outside of federal enclaves like Washington, D.C., the federal government simply does not have the power to compel to people to wear masks under any reasonable reading of the Commerce Clause (the source of most of the Congress’s modern-day powers). State governments, however, have a general police power to protect the health, safety, and morals of its residents. End of discussion, right?

(With apologies to Madonna.) While many of you are fast asleep or binging on contemporary Netflix shows, I have been staying up late all week savoring many film noir classics. Last night, for example, the Movies! TV Network broadcasted the 1945 film noir “Detour” at 3:00AM Eastern!

I will resume blogging next week about my European travels (Paris and Venice) as well as about legal positivism. In the meantime, now that I am done with teaching until the fall, I will be turning my full attention to my modest pile of unread or partially-read books pictured below:

Note: In the oval picture frame to the left, yours truly is pictured with Hilary Hemingway, one of the great Ernest Hemingway’s nieces, who. I had the honor of meeting in May of 2003 at the Hotel Ambos Mundos in Havana, Cuba.

Following up on my previous post, below are four nocturnal snapshots from my 2019 summer sojourn with Sydjia in the City of Light. Faites-vous plaisir!

Last year on this day my wife and I arrived in Paris, where I attended Brian Leiter’s summer seminar on legal positivism. I will finally get around to blogging about Professor Leiter’s excellent seminar soon …

What if the leaders of the world got together and agreed to build a universal metro system for the entire globe? Via Reddit (u/picrazy2): “Presenting MetroWorld … a network of 276 stations and 11 lines, with 11 hubs and 11 super-hubs.”

Here is a larger version of this wonderful world metro map, and here is a detailed description of the logic and design choices that went into the making of the map. What foreign city would you visit first? (For me, it would be Cape Town!)

This summer was the first time I have ever taught a course online from start to finish, and somehow, I ended up having a wonderful experience recording my low-budget videos and using Tiger King to explore the legal and ethical environments of business. My summer course ended a few days ago, so I recorded a farewell video for my students (see below). In this video I talk about two of my favorite contemporary athletes–Tim Tebow and Mike Tyson–and discuss some life lessons we can learn from them. (As an aside, here is Tim Tebow’s first “Spring Training” home run, which I had the honor of seeing in person last February!)