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Brian Bix discusses different schools of legal positivism, focusing on their methodological approaches and the unique ways they conceptualize the nature of law and its functions.

Image courtesy of interviewee. October 10, 2024

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Brian Bix discusses different schools of legal positivism, focusing on their methodological approaches and the unique ways they conceptualize the nature of law and its functions.

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Here are five key points from the video:

1. **Convideo and Significance**: The discussion centers around Professor Waller's contributions to legal theory, especially his concepts of Inclusive Legal Positivism and Living Tree Constitutionalism, which argue that a constitution should adapt over time. His work is significant, especially in the realms of constitutional theory and legal philosophy.

2. **Inclusive vs. Exclusive Legal Positivism**: The video distinguishes between Inclusive Legal Positivism, which acknowledges that legal systems can incorporate moral tests for the validity of rules based on social decisions, and Exclusive Legal Positivism, which asserts that there is no necessary moral connection to legal validity. This debate showcases differing perspectives on the nature of law.

3. **Role of Judges and Legal Theory**: The author emphasizes that the disagreement between inclusive and exclusive legal positivism is not about practical legal applications or directives but rather about the theoretical understanding of judicial actions and the nature of law itself. This distinction highlights the philosophical underpinnings of legal theory.

4. **Critiques of Theoretical Distinctiveness**: There are critiques regarding whether Inclusive Legal Positivism offers anything distinct from other legal theories. The author discusses the importance of having a position that is not universally accepted to validate its theoretical contribution to the understanding of law.

5. **Shift in Legal Debate Landscape**: The video reflects on how the intense debates between Inclusive and Exclusive Legal Positivism have softened over time, with new theories and approaches emerging in legal discourse. Despite this shift, the author suggests that the core issues debated previously still hold valuable points for modern legal theorists to consider.

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Here are some key quotes extracted from the given video that encapsulate the main ideas and arguments presented:

1. **On the Purpose of the Volume:**
- "A fe shrift, as you know, is a collection of works in honor of someone usually at a particular phase of their career."

2. **On Professor Waller Cho:**
- "Professor Wallach Show is a very important scholar, taught pretty much his entire career at McMaster University in Canada... Most readers will be best known for some of his work on constitutional theory."

3. **On Living Tree Constitutionalism:**
- "It's sort of the idea that a constitution does, and it should change over time."

4. **On Legal Positivism:**
- "Legal positivism is in very rough terms, the idea that law is primarily a conventional source."

5. **On Inclusive vs. Exclusive Legal Positivism:**
- "Inclusive legal positivism... there's a moral test on the validity of legal rules... It's not a necessary element of law."
- "Exclusive legal positivism... says it is necessary the case that there is no connection [between morality and legal validity]."

6. **On Legal Theorizing:**
- "Theorizing... is by its nature, a simplification... we have to choose between possible theories, one of which better fits our perceptions."

7. **On Constitutional Review:**
- "If a law doesn't give due process... then the court says the statute in question is unconstitutional. It's of no validity."

8. **On the Nature of Law:**
- "Law... is there to tell us what to do, to be a mediator between all the moral and other reasons."

9. **On the Debate's Nature:**
- "This is a debate not about what we should do, it's a debate about knowledge."

10. **On Critiques of Inclusive Legal Positivism:**
- "What's distinctive about inclusive legal positivism... is not just that law is conventional."

11. **On the Evolution of Legal Theory:**
- "The debates have sort of moved on, but there are still important points in the theorists that are no longer discussed."

These quotes represent key concepts such as the distinctions between inclusive and exclusive legal positivism, the implications of constitutional review, and the nature and purpose of legal theorizing. Each quote highlights significant points made throughout the discussion.

Celebrating Professor Waller Cho: Contributions to Constitutional Theory and Legal Positivism

00:00:00 - First of all, the context is this was for a, a volume, a, a fe shrift or will Walla show. A fe shrift, as you know, is a, a, a collection of works in honor of someone usually at a, a particular phase of their career. Professor Wallach Show is a very important, scholar, taught pretty much his entire career at McMaster University in Canada. He had been a, he had done most of his training in Canada, but had gone to Oxford, to do his doctorate. He worked under the famous legal theorist, HA Hart.

00:00:37 - at least roughly speaking with Professor Waller Cho's, retirement, from McMaster. he retired just a, a a few years back, and he's still, writing in the area. Most readers will be best known for some of his work on constitutional theory. He's the, author of an idea called what, which is in Canada called Living Tree Constitutionalism. and, you know, in, in American terms, it's sort of the,

00:01:09 - that a constitution does, and it should change over time. but the topic on which he is somewhat less well known, but still well known is, his advocacy for inclusive legal positivism, which gets us to our topic. Legal positivism is in very rough terms, the idea that, law is primarily a, conventional, source.

Distinctions in Legal Positivism: Inclusion vs. Exclusion

00:01:44 - and that the status, the legal status of a, of a rule, the legal status of a whole system doesn't depend on its moral merits or any other sort of merits. Now, the difference between inclusive and exclusive legal positivism, requires a little bit more background. So if the position you're opposing, right, if the position you're opposing negating, arguing against is

00:02:14 - and morality, right? Or between moral merits and legal, the legal validity of particular rules. There are two ways to negate that view, just logically speaking. There are two ways. One is you can say I disagree with that. Any connection between moral merits, and legal validity is not necessary. It's not something which is inevitable,

00:02:42 - And that's basically the view of inclusive legal positivism. That there are legal systems, there can be, and in fact are legal systems, which do put a moral test on the validity of legal rules. But this is by the social choice of the officials in that system. It's not a necessary element of law. It's not an inevitable element of law. So that's inclusive legal positivism, exclusive legal positivism negates the

Legal Validity and Moral Connections

00:03:12 - Instead of saying where the initial proposition is, there's a necessary connection between morality and the legal validity of rules, it says it is necessary the case that there is no connection, right? That, that it is in the nature of law, that there is no moral test, for the validity of particularly legal rules or for that matter, for the legal status of whole systems.

00:03:43 - with Joseph Ross, but also, Andre Marmor and some other scholars as well. And the article is to make a more general observation about theorizing and that, you know, theorizing to make a theory of a theory of law, a theory of contract law, a theory of legal rights, you know, any theory is by its nature, a simplification, right? It's, it's, it's, it's taking away from the,

00:04:18 - And my comment in the article was that very often what we have to do is we have to choose between possible theories, one of which better fits, has a better fit with our perceptions, a better fit with the way we talk about something, has a better fit as against a theory which may fit less well.

Comparative Analysis of Legal Rights Theories

00:04:46 - it has something more distinctive to say. So the analogy, the, the, the comparison I gave was, theories of legal rights. I don't wanna go too far down this tangent, but basically the two major, theories of legal rights is an, an interest theory and a will theory and the interest theory, again, don't wanna go into too much detail, but it better fits our, the way we talk about rights, and that it, it it's consistent with rights for children.

00:05:20 - that are inalienable in a way that the will theory is not. But the argument is that the interest theory doesn't say anything particularly important about the nature of rights. Well, the will theory, even though it fits, the way we talk about rights less well makes a distinctive statement about the connection between legal rights and personal agency and autonomy. So similarly here, inclusive legal positivism, one of its strengths is that it seems to fit well,

00:05:54 - and commentators talk about things like constitutional review in the United States and in other countries. And it seems to fit well to some extent also with common law legal reasoning, where there does seem to be a moral test, with constitutional, review. If, if, a, a law doesn't give due process, if the law doesn't offer equal protection, if the law creates cruel

Moral Tests in Legal Validity: A Comparative Analysis

00:06:24 - these use an examples from the US Constitution, then the court says the statute in question, is unconstitutional. It's of no validity. And it was the, the phrase I like to use void abio. It was, it was void from the beginning. It never was law. Okay? And so these seem to be moral tests for legal validity. and inclusive legal positives can account for that saying yes. Well, the United States and Canada and other countries, they have chosen,

00:06:57 - of constitutions and, and other practices to create a moral test. But that moral test is contingent. It's something that they happen to create in this country. other legal systems don't have it. There's nothing in the nature of law that requires there to be a moral test. Brilliant, exclusive legal positivism, says that because of the nature of law, that the nature of law is there to be, to mediate

00:07:31 - and the choices we actually make, right? So law, law Joseph Ross says, is like an arbitrator when you go to the arbitrator, right? You have a dispute with your, with your business colleague, and you go to the arbitrator and you say, I, you know, I should win this dispute because this is the understanding of the contract. And the other party says, no, that's the wrong understanding. I should win the dispute. And the arbitrator at the end of the day, says, you know, party A wins, right?

Law as Decision-Maker: Exploring Exclusive Legal Positivism

00:08:01 - that you know what to do. You know, who has to pay who for damages, right? So, similarly, the idea is the law is there to tell us what to do, right? To, to, be a mediator between all the moral and other reasons that apply to us and what we actually decide, right? What we, how we actually act. So, exclusive legal positive says it's the nature of law to make a decision, right?

00:08:32 - to go in your business dispute to the arbitrator, and the arbitrator says, at the end of the dispute and after the hearing says, do what is right, right? Do what is just act according to the contract. And you say, what We know that you are here to tell us what precisely to do. So similarly, law, the nature of law is that it makes the decision For us, right? And, and if all the law said is we're gonna apply certain

00:09:02 - what is just do what is right. Well, we know that, right? And so, exclusive legal positivism says something distinctive about law. It says that, that to understand law, you have to understand a certain connection between law and practical reasoning and authority and things like that. And the problem is, though it does seem to be, an awkward fit with things like constitutional ju constitutional judicial review and things like common law reasoning by the courts,

Judicial Power and Legal Philosophy

00:09:37 - you know, I understand that judges have a certain convention on how they speak and how they present things, but the better understanding is that judges have been delegated a power, to invalidate, legislation based on due process or core unusual punishment, or whatever the standard might be, and they exercise that power, or they don't. Now, one thing I emphasize in the paper,

00:10:10 - that the disagreement between inclusive legal positivism and exclusive legal positivism is not, not about what we should do. It's not about whether we should have constitutional judicial review. It's not about whether judges should have this power. It's not about whether common law, legal reasoning is a good idea. It is about a characterization, the proper understanding of what the judges are doing when they do it right? And, and this, you know, I I, I teach in the United States,

00:10:41 - but particularly in the United States, if you give, if you were to have this discussion, people would be, you know, very frustrated, right? They'd say, okay, so, but you know, what does this change in the world? What is it you're telling us we should do differently? And I say, nothing. And they say, well, don't bother us then. Right? Rich Richard Poner on a couple occasions, gave lectures in England and said, analytical, legal philosophy, it's nonsense, right? Don't, you're wasting our time, right? If you're not gonna tell us what to do,

Debate on Knowledge vs. Practical Application

00:11:12 - If there's no bottom line prescription, don't bother us. You're wasting our time. So I hope I'm not wasting everyone's time, with these 20 or 25 minutes, or what do we have together? But the point is that this is a debate, not about what we should do, it's a debate about knowledge. And so the challenge, you know, Ronald, Ronald Dorchen, who's, an anti positivist, a sort of natural author, Ronald Dorkins challenge

00:11:46 - this is not really positivism. It doesn't, it doesn't fit with what you know, the distinctive viewed legal positivism had when John Finnis, a, a, a natural law theorist of a traditional form, a Thomas Thomas Aquinas style natural law theorist. His critique is, of inclusive legal positivism is you're telling us law is conventional.

00:12:14 - who, who disagrees. No one disagrees. The natural author, traditional natural author, theists don't disagree. modern Ians don't disagree. and, and so part of my discussion in the paper is, you know, whether your theories about practical reasoning or your theory is about theoretical reasoning, there's no point having a theoretical position on which no reasonable person would disagree, right? And, and, so the question is,

Distinctions in Legal Positivism: Conventionality and Criteria

00:12:47 - what is your position such that anyone disagrees? And what is your position such that it says anything distinctive about the nature of law? And Ezor Waller chose response in, in some other articles he wrote at around the same time we wrote recently. His response is, what's distinctive about inclusive legal positivism as contrasted with exclusive legal positivism? On one side, a natural law theory of the other is that not just that law is conventional,

00:13:21 - of, of law, the centrality of the conventional nature of law. and, and I, I, you know, in my paper, I, I wonder if that's enough, right? In my paper, I say, as against, you know, in, in the response between to, to exclusive legal positivism, debate between exclusive legal positivism, exclusive legal positivism says, yes, conventional nature of law is important, but so is the, you know, the fact

00:13:50 - And the fact that you have, as it were, roughly speaking, two important criteria rather than one important criterion. you know, that's, that's not an objection. You know, that in its, you know, if you say, you know, the, the second criterion is wrong, I understand that. But it's just, you know, you shouldn't have two criteria, and we should only emphasize, the conventional nature of law. I, I, I'm not fully persuaded. so that, that's, you know, so

Distinctive Legal Theories: Hart vs. Austin

00:14:20 - Are you saying anything distinctive about law? Are you saying anything on which the critics of legal positivism or the critics of particularly of inclusive legal positivism would disagree? Lahar, we mentioned him earlier. He was, professor wall's supervisor, the most important figure in, in modern legal, not just modern legal positivism, modern legal theory. he was a critic of a, a figure named John Austin. John Austin's an early 19th century, theorist,

00:14:52 - and Bentham came up with the command theory of law. And the command theory of law says that law is essentially the command of the sovereign, right? And, and, and heart gives a, a long and detailed critique of that, both in a, in an article and later in a book. and, and basically Austin's view is very distinctive, right? You know, law is essentially power law is essentially power of the, of, you know, up, you know, top down power.

00:15:21 - and still attractive to many people, especially on, you know, critical theorists, theorists on the left, et cetera. but Hart's argument and detailed argument is that, you know, but it gets law wrong in lots of important ways. It's not just, to some extent distortive. It's very distortive. So you can have, it is perfectly open to someone say, yeah, exclusive legal positivism or command theories of law. They certainly do have a, you know, distinctive vision, but they're so distorting, they're so, their fit is so bad,

Shifting Perspectives in Legal Positivism Debates

00:15:52 - so, you know, you know, where, where, where you end up at the end of the day, if you're under end up exclusive legal positivists and inclusive legal positivism or like dork and or finnis, the p on both our houses, we're gonna be anti positivists, natural law theorists. you know, I, I think all those options are very much in play. But I, you know, for me, I think that inclusive legal positivism has significant weaknesses in, in, in not saying anything particularly distinctive

00:16:24 - The debates between inclusive and exclusive legal positivism were, were, you know, much more salient and, much more detailed, a couple decades ago. The, the, the, the battle lines have somewhat, you know, softened and, and people have sort of moved on. you know, now we, we, you know, there are other, there are other things to argue about that, Scott Shapiro at Yale has a, a planning theory of law.

00:16:56 - many people are arguing about, sort of taking a sort of metaphysical turn in their legal theories and talking about, when we say that facts make law, or what sort of grounding theory do we have? What is sort of anchoring theory, vence theory. so I, I mean, I think, you know, for better or for worse, the debates have sort of moved on. but you know, when I teach jurisprudence, I teach a lot

Reviving Legal Theory: Lessons from Historical Jurisprudence and Realism

00:17:25 - I talk about the Scandinavian legal realists. I talk about historical jurisprudence. No one talks about this anymore. But just because fashion has moved on, it doesn't mean there aren't important points in the theorists that are no longer discussed or the important things to learn from the debates in which they took part. So I think there's much to learn from the inclusive, exclusive debate if for no other reason Than this sort of standard choice between what's distinctive, and,

00:18:03 - and to think about the connections, be the connections between law and, and, and moral merits has, has never gone away. And so it's, it's still worth discussing.

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