A Court of Chaos and Whimsy: On the Self-Destructive Nature of Legal Positivism

Authors

Joshua J. Schroeder, SchroederLaw

Abstract

Each of the four arguably most famous dictators in modern Western history, Adolf Hitler, Porfirio Diaz, Napoleon Bonaparte, and Oliver Cromwell, were legal positivists. This is to say that they rejected both the common law and natural law conceptions ofhuman rights. They furthermore rejected the judiciary's equitable power to enforce human rights independently ofpolitics by characterizing the old Chancery of England as a court of chaos and whimsy, adopting John Selden's religious rejection of equity as a "roguish thing."

As Bertrand Russell recounted in his History of Western Philosophy, the philosophical avatars of German, French, and English despotism, Hegel, Rousseau, and Hobbes, provided the ideological bases for legal positivism in stark realism and relativism. Yet, the United States' legal establishment will not shake off these problematic philosophies as clearly self-destructive and illogical. Rather, inspired by Oliver Wendell Holmes, Jr., the United States presently embraces them by willfully ignoring how Holmes punished Porfjrio Diaz's leading critic, Eugene V Debs.

The road to this state of affairs in American law was paved by an underemphasis of the majority view of the American Revolution, embodied by the contributions of James Otis and Phillis Wheatley. Professor Adrian Vermeule seemed to realize that real American conservatism may require a defense of liberal Republican values. Thus, he blamed Justice Antonin Scalia's originalism for being "content to play defensively within the procedural rules of the liberal order," and that real conservatives should abandon the founding and embrace "illiberal legalism," a form of progressive legal positivism that Vermeule swears "is not legal positivism."

Such defenders of Hobbes' Leviathan learned from Hobbes to destroy exactly the positions they, in fact, defend. Just as Selden rejected measuring the chancellor's foot only to measure Cromwell's, Vermeule's rejection of Scalia's originalism and legal positivism is 'aujhebung,' rejected, but preserved. This article is dedicated to the illumination of legal positivism, which often destroys itself in these sorts of illogical Hegelianisms.

Disciplines

Jurisprudence | Law | Legal History

Recommended Citation

Joshua J. Schroeder, A Court of Chaos and Whimsy: On the Self-Destructive Nature of Legal Positivism, 29 Cardozo J. Equal Rts. & Soc. Just. 663 (2023).
Available at: https://larc.cardozo.yu.edu/cardozoersj/vol29/iss3/4