“The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry.” British Jurist and All Around Swell Thinker John Austin, 1790-1859
I had originally wanted to post this in the immediate aftermath of George Zimmerman's acquittal on homicide charges in Florida, but decided to wait a bit to let my ideas germinate a bit more and for cooler heads to prevail.
See, here was my problem: from my reading of this case, the jury in the Zimmerman matter came to the exact right legal conclusion in finding Zimmerman innocent of murder or manslaughter.
This is the problem: No one seemed to be asking the right question. Although this was the correct legal outcome, why was it the correct legal outcome?
Legal Positivism will inform those who rejoice in this travesty that the law did exactly what it was supposed to. Let us hearken back to the words of Lord Austin: "Whether [law] be or be not conformable to an assumed standard, is a different enquiry."
Without getting too wonky here, the point is simply that in the world of legal positivism the legitimacy of a "law," as a thing in and of itself has -- or should have -- no connection to the social, ethical or moral question it seeks to address.
In that paradigm, a law (or body of law) that says if you start a fight with someone, then start getting your ass kicked, you are then allowed to shoot and kill that person, is a perfectly legitimate law.
The laws as written and applied contained internal logical consistently, were properly posited and promulgated according to custom, usage and standards, were correctly authoritative... and of course, completely insane and untenable in anything resembling a 21st Century civil society.
As you might guess, I find this to be problematic.
When we divorce larger social context from legal writing, this is what happens. More to the point, far better legal minds than I have some fairly choice things to say about legal positvism and its effect on legal institutions.
As a young lad, I spent time under the educational care of the Clan of the Red Beanie (as Charlie Pierce likes to gloss them) and their women's auxilliary unit. And it was there I learned about St. Thomas Aquinas. Well, not really, it was just a passing mention in the eighth grade, but I remembered the name and later picked up the Summa Theologiae: The Treatise on Law, wherein St. Thomas has his own rather complete and deceptively simple-looking definition of "law."
At its essence, Aquinas says that law is a "rule and measure" of human conduct. As I said, deceptively simple; there is a whole context behind that statement that needs examination.
I will not do that here, I will merely paraphrase.
Being that Aquinas is heavily influenced by the classical Aristotelian world view, he is careful to distinguish between an object that has the form of a thing, and that thing's true nature. He applies this concept to law.
Basically, a law that fails to adequately do justice (given his idea that humanity is pre-disposed towards "good.") is not really a law, but merely a thing that looks like a law.
In his long-winded, but good introductory essay to The Treatise, R. J. Henle, S.J.; University of Notre Dame Press (go Irish!) points out the following:
Let us apply this distinction to one of the celebrated arguments in jursiprudence. St. Augustine wrote, "an unjust law seems to be no law at all." St. Thomas repeats this doctrine as do many other Natural Law thinkers. But the retort comes, "this statement is a plain self-contradiction. In the subject 'laws' are spoken of; in the predicate they are denied the name 'law'."
What is the situation? Here is a statute, passed by a properly consituted legislative body, signed by a properly elected or appointed chief executive and promulgated in accordance with some Consitution, Grundnorm or Basic Law. In all these respects it is like any other law.
On examination, however, it is found to be unjust, and therefore, to fail to in a point, according to Natural Law jurists, essential to a law, hence it is not a law.
From St. Thomas's standpoint, it is absurd to try to distinguish what law is from what law ought to be. Of course, civil law can be contrary to what law ought to be. Almost everyone agrees that law is a rule and measure (a standard) of human acts, if law does not have a standard distinguishing what is from what ought to be, if law contains no standard, it cannot be a measure and hence would lack an essential function of law or of Practical Reason."
Like I said, he takes a bit to get to the point, but this is the point. A law, like the one in Florida that allowed this moral, ethical and social tragedy to be endorsed by the state, is not legitimate law in the Thomistic sense, although it completely passes muster in the paradigm of Legal Positivism.
A lot of this comes down to essential belief. I hold the Thomistic view that Humanity is essentially ordered to that, which we call "good." There are reasons to believe this which have little to do with religion in general, much less Christian epistemlogy. The "Nash Equilibrium" is a good example of a mathematical concept of the idea that it is more beneficial for a society to work in concert for a general welfare or a generally agreed upon "good."
American jurisprudence needs to start to address this problem, because if we don't there are forces out there -- the Koch Boys, Sheldon Addleson, Mellon-Scaife, among others -- that take a radically different view of our Enlightenment Era founding documents and ideas and would re-write much of American law in a way that would fundamentally change the relationship between citizens and the state and with each other, with raw power being the only determinant.
Unless we get a handle on this, and I mean, like 10 minutes ago, we might as well just get a sharpie and scrawl the words: "That which pleases the prince, shall have the force of law" over the U. S. Constitution.