The Path-Dependence of Legal Positivism

This piece below was presented during the Jurisprudence and (Its) History Symposium, held by the Virginia Law Review and the Program in Legal and Constitutional History in September 2014. 

One advantage of not being a professional (or even amateur) historian is that such non-professional status allows one to be unashamedly instrumental about history. Although genuine historians bridle at the thought that we should investigate history because it makes us better people or better decision makers, as opposed simply to providing knowledge for its own sake, the rest of us have the freedom to use history for a wider range of other and more instrumental purposes.

Among the instrumental uses of history is the way in which historical inquiry can often allow us to recover, for current use, ideas whose past currency has been extinguished by the passage of time. And although ideas can be lost for many reasons, including of course their unsoundness, one of the most interesting ways in which potentially valuable ideas of the past can be forgotten is through the mechanism of intellectual path-dependence. If an idea at some time in the past possessed, say, two valuable features, and if one of those features becomes popular, salient, interesting, or important, the popular or salient or interesting or important feature will likely be discussed, explicated, and embellished. These explications and embellishments will themselves then be discussed and further explicated and embellished, and so on, in a manner that resembles the branches of a tree as they generate further branches and then twigs and then twiglets and leaves. But just as looking at all of the smaller sub-branches of one main branch may blind us to the existence of other main branches, so too may a focus on the subsequent elaborations of one part of some main idea lead us to ignore the other parts, parts whose importance may be forgotten precisely as a consequence of the process of path-dependence just described. And thus the path-dependence I posit here is largely a sociological or psychological, rather than formal, process. It is not that focusing on one of multiple facets of an idea makes the other facets unavailable in a logical or inexorable sense. But the earlier selective attention does serve to make those other facets sociologically and psychologically more obscure with the passage of time, rendering the other facets less salient, more difficult to retrieve, and, most importantly, increasingly harder to use.

And so it is with legal positivism. My goal in this Article is to examine three important topics in legal theory and to expose how they were all at one time part of the perspective that was once understood as legal positivism, and which bears an ancestral relationship to modern legal positivism. The first of these dimensions is the relationship between legal theory and legal reform. Specifically, that an account of the nature of law might be developed not simply as an aid to understanding or accurate description, but instead as a way of facilitating reform of law itself or reform of how a society understands the idea of law. And thus the view that theories or accounts of law might be generated for the purpose of conceptual or legal reform is the first of the three dimensions of yesterday’s legal positivism that appears largely to have been obscured or even buried by the passage of time.

Second, legal positivism, at the time of its late nineteenth-century (or perhaps even earlier) origins, was focused on the importance of coercion, force, and sanctions as central components of law. But as with the creation of legal theories for the purpose of legal reform, this emphasis on the coercive side of law has also been banished to a kind of jurisprudential purgatory, for reasons and with consequences that deserve further examination.

The third lost element of earlier versions of legal positivism is its focus on judicial decision making and the role of judges. Modern legal positivists, for whom 1961 is all too often the beginning of useful thought about the nature of law, do not, with few exceptions, consider theories of judicial decision making to be a necessary or even important part of the positivist perspective. But it was not always so. Previously, the view that we should understand the judicial function in terms of the freedom (or lack thereof) of the judge to depart from the limited domain of formal positive law in making her decisions was a topic dear to the heart of legal positivists, but again that focus seems to have been erased.

My aim in this Article is to focus on the history of thinking about law in the context of the three topics just sketched, and to try to show that the continuous development of the theory of legal positivism, however useful it may have been or may still be, has possibly caused us to ignore other aspects of what was originally part of the positivist picture. My concern here is not that modern legal positivism is in any way mistaken on its own terms. That agenda is best left for other occasions. Here my only goal is to argue that modern legal positivism is but one branch of the historically important positivist perspective. As a result, the path of development of legal positivism, even if sound according to its own modern lights, appears to have caused us to lose the independent importance of several other paths, an importance that remains worthwhile even today to emphasize.

Authority and Authorities

Although there is a rich jurisprudential literature dealing with the concept of authority in law, the lessons from this jurisprudential tradition have never been connected with the practice by which authorities—cases, statutes, constitutions, regulations, articles, and books, primarily—are a central feature of common law legal argument, legal reasoning, and judicial decision-making. This disconnect between thinking about the nature of authority and reflecting on law’s use of authorities has become even more troublesome of late, because controversies about the citation of foreign law, the increasing use of no-citation and no-precedential-effect rules in federal and state courts, and even such seemingly trivial matters as whether lawyers, judges and legal scholars should cite or rely on Wikipedia all raise central questions about the idea of authority and its special place in legal reasoning. In seeking to close this gap between the jurisprudential lessons and their contemporary application, this Essay casts doubt on the traditional dichotomy between binding and persuasive authority, seeks to understand the distinction among prohibited, permissive, and mandatory legal sources, and attempts to explain the process by which so-called authorities gain (and sometimes lose) their authoritative status.

The Limited Domain of the Law

There are social norms, or otherwise valid sources of decision, that the law refuses to accept; as such, law really is a limited domain. Despite the claims of reputable philosophers that “law is process,” “law is politics,” or “law is everything,” there remain certain sources of knowledge and argument that remain out of bounds in the legal world. Further, many of the great jurisprudential debates of the last century have really been debates over the question of what is and is not in bounds.