Introduction
The ‘rule of law ’ 1 arose in England 2 both because of its individualistic cultural heritage and because of the non-rationalist character of its intellectual heritage, most especially in the common law. An understanding of and appreciation for this ‘rule of law’ has been limited to legal theorists like Hayek and Oakeshott 3 (and before them Dicey, Leoni, and Fuller) because they opposed the rationalism and ‘scientism’ that has been the basic intellectual orthodoxy since the nineteenth century. This opposition enabled them to resist the idea that reason or science can identify a substantive common end for society in the service of which all individuals must be directed and that law is the instrument that directs this service.
The mainstream of contemporary social scientific and legal thought has little room for the traditional understanding of the rule of law. Hayek and Oakeshott find such a place and articulate a morally significant picture of the rule of law precisely because they reject the rigidity of the rationalist, scientistic, positivist perspective. Their non-rationalist, inductive understanding of human life and human society underwrites this ‘rule of law ’ perspective according to which the role of law is to define the rules that enable individuals, who have their own ends and commitments, to live in peace and voluntary cooperation with their fellows.
Our purpose is to explain the meaning and significance of that ‘rule of law .’ The meaning has been obscured because much of twentieth-century jurisprudence and the philosophy of law has lost its way. It did so because it was misguided by a powerful intellectual movement. The significance of the ‘rule of law ’ is that it was thought to have promoted and protected human freedom. That significance has been challenged by writers who have a different conception of freedom or who prioritize other values over individual freedom.
We shall begin by identifying the larger intellectual movement and then identify its use within jurisprudence. In the context of the larger intellectual world, we can label that movement as the Enlightenment Project, 4 namely, that there can be social experts armed with a social technology for addressing social issues. The Enlightenment Project presupposes ‘scientism,’ namely, the view that science is the whole truth about everything and that there can be a social science modeled along the lines of physical science. This view originated in France in the eighteenth century and was called ‘positivism’ by the French sociologist Comte in the nineteenth century. 5 In the twentieth century, this movement was programmatically developed in Vienna in the 1920s and 1930s before being transplanted to the UK and to the United States. Legal theorist Hans Kelsen was initially identified with this movement, and he became one of the transplants.
‘Positivism’ has generated confusion, in part because every scholar or every movement defines it differently. 6 ‘Positivism’ is a version of ‘scientism,’ and when developed programmatically becomes the Enlightenment Project. Although it is possible to be committed to some version of scientism without any ulterior agenda, the most prominent legal theorists of the twentieth and twenty-first centuries (Kelsen, Hart, Raz, Rawls, and Dworkin) have been uniformly in favor of different versions of social technology. 7
When we, as the authors, use the term ‘positivism’ we have something quite specific in mind, something that has a clear historical pedigree. 8 In the eighteenth century, there was a philosophical movement primarily among the French philosophes 9 called the Enlightenment Project. 10 Inspired by the success of Newtonian physical science in explaining the world and the subsequent technological control it engendered, the philosophes initiated the idea of a social science, the aim of which was to explain, predict, and control the social world. In short, they believed in the existence of a beneficial if not utopian social technology. Legal thought primarily in the United States in the late nineteenth and early twentieth centuries had already found advocates who wanted to apply science to the law. Rather than thinking that law has to be understood in its own terms, various aspects of social science have been applied to legal analysis. They go by different names such as sociological jurisprudence, formalism, anti-formalism, realism, legal positivism, 11 analytic jurisprudence, critical legal studies, even law and economics. What holds all of these together is the view that some version or understanding of social science can discredit all previous jurisprudence and provide an alternative version that makes law a better instrument to achieve some favored political agenda.
According to the Stanford Encyclopedia of Philosophy 12 :
Legal positivism is the thesis that the existence and content of law depends on social facts and not on its merits. The English jurist John Austin (1790-1859) formulated it thus: “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.” (1832, p. 157) The positivist thesis does not say that law’s merits are unintelligible, unimportant, or peripheral to the philosophy of law. It says that they do not determine whether laws or legal systems exist. Whether a society has a legal system depends on the presence of certain structures of governance, not on the extent to which it satisfies ideals of justice, democracy, or the rule of law . What laws are in force in that system depends on what social standards its officials recognize as authoritative; for example, legislative enactments, judicial decisions, or social customs. The fact that a policy would be just, wise, efficient, or prudent is never sufficient reason for thinking that it is actually the law, and the fact that it is unjust, unwise, inefficient or imprudent is never sufficient reason for doubting it. According to positivism, law is a matter of what has been posited (ordered, decided, practiced, tolerated, etc.); as we might say in a more modern idiom, positivism is the view that law is a social construction. Austin thought the thesis “simple and glaring.” While it is probably the dominant view among analytically inclined philosophers of law, it is also the subject of competing interpretations together with persistent criticisms and misunderstandings. [italics added]
Legal positivism so understood is inconsequential to the point of being reduced to triv...