How can anybody disagree with this? Even if you accept natural law doctrine, you could still believe in legal postivism so long as you recognize that natural law is not the actual law, that it is a measure by which you judge the actual law.
So does legal positivism get a bad rap in libertarian circles for any other reason than the overwhelming influence of natural law? Is there some conclusion that can be made that would make this philosophy incompatible with libertarianism?
Come on, did you even read the definition I posted? It was pretty clear that the law is a human construct, and that whatever the law is in any given place and time IS NOT necessarily a measure of justice and morality.
Is this why libertarians are hostile to it, because they think legal postivism is something that its not?
Imagine there’s an orthodoxy of nutrition which says that it’s supremely desirable for all humans to eat a kilogram of salt every day. Nutritional ‘naturalists’ would say that this approach isn’t “real” nutrition, while positivists would say that it is “real” nutrition - it just may or may not be in accordance with rational observations concerning what is and what is not healthy for humans to eat.
Is that basically correct? Positivists would deny that there’s necessarily a rational link between what people should eat and what is good for people to eat?
Doesn’t it make the concept of ‘nutrition’ rather pointless and unnecessary for nutritional positivists?
The analogy works well enough for the discussion. Nutritional positivists are interested in the theoretical framework of nutrition, and not what is best for people to eat. They recognize that the study of nutrition is a social construction built by humans for humans. So the all salt diet may be a terrible diet, but it is still a diet all the same. The positivist doesn’t deny a link between between the existence of a diet and what is nutritious, but that what constitutes a diet is not dependent upon what is nutritious.
Putting aside the fact that there is no intelligent merit to believing natural law, I see no incompatibility between legal positivism as spelled out in the OP and libertarian law. A free market in law is positive law.
The only way that philosophy would be incompatible with libertariansim is if it was enforced by the state.
My understanding of legal philosophy is that, originally, it concerned the question “What is to be obeyed?” Of course, nowadays this is reframed into the question “What is law?” Implicitly, it seems, “law” is being defined in legal philosophy as “that which is to be obeyed”. So legal philosophy is, at heart, a branch of ethical philosophy.
If you’re saying that there are certain commands made by certain (groups of) people that are backed by the threat of force, and call this “law”, then I have no dispute with you. However, the challenge would then be to explain why these commands must be obeyed.
Essentially, I think the difference between legal positivism and legal naturalism is the very definition of “law” being used.
As Phaedros said, legal positivism is basically might-makes-right - one must obey that which is commanded by those using force or threatening to use it. IIRC, legal positivism originated with those who wanted to justify absolute monarchy.
"No legal positivist argues that the systemic validity of law establishes its moral validity, i.e. that it should be obeyed by subjects or applied by judges. Even Hobbes, to whom this view is sometimes ascribed, required that law actually be able to keep the peace, failing which we owe it nothing. Bentham and Austin, as utilitarians, hold that such questions always turn on the consequences and both acknowledge that disobedience is therefore sometimes fully justified… The peculiar accusation that positivists believe the law is always to be obeyed is without foundation. Hart’s own view is that an overweening deference to law consorts more easily with theories that imbue it with moral ideals, permitting “an enormous overvaluation of the importance of the bare fact that a rule may be said to be a valid rule of law, as if this, once declared, was conclusive of the final moral question: ‘Ought this law to be obeyed?”
Whether or not a law should be obeyed is not a question that legal positivists attempt to answer, at least not on the grounds of legal positivism. Also, legal positivists were not a bunch of monarchists and ranged from Bentham and Hume to Marx and Durkheim. Even those who supported monarchy like Hobbes still denied that law be obeyed for its own sake, or that might makes right.
Its not as if the entire bodies of thought are at odds because they disagree on what the dictionary entry for “law” says; positivists deny the very existence of law outside of what has been constructed by men. Its a matter of content vs. meaning. If I were holding a plastic apple in my hand and said “this isn’t an apple,” you wouldn’t insist that I’m using a different definition, but try to ascertain why I’m saying its not an apple.
So even if we agreed that what I call law is “policy” and what Phaedros calls law is “law,” I would still say that his “law” doesn’t exist, and that meaningful analysis of “policy” is best achieved through a postivist, non-normative framework.
Whether or not a law should be obeyed is a question that legal naturalists attempt to answer. So again, the difference between legal naturalism and legal positivism is, at least implicitly, a difference in the definition of “law”.
On the subject of Hobbes, however, I’d say that he certainly did argue that might makes right in Leviathan. His entire view of the “social contract” is based on a group of people surrendering to a “sovereign”. Obviously this means the “sovereign” has more power than anyone in said group - otherwise, as I understand Hobbes, he/they wouldn’t surrender to him. How is this different from “might makes right”?
Finally, while I readily concede that not all legal positivists were in favor of absolute monarchy, it still seems to me that the theory was first invented to justify that very thing.
I may well conclude that you are simply using a different definition of “apple”.
So then where does normativity ever come into play?