Five questions for legal positivists…

85 Comments

1. I’m no scholar here; and frankly, I’m stuck on #2.
   #1: Yes, we definitely have a sovereign. Our Congress and executive branch act as our sovereign.
   #2: No, not the people, but their representatives. This ensures that our sovereign will be photogenic, to some extent.

   Here it comes:
   The Congress and Constitution were based on the authority of the states, which were then subject to them. It seems circular.
   But the states had authority by means of… the Crown?
   Should I be making tea?

   So, if the states tell the Crown to get bent, and then they come up with a Bent Crown document, what was this whole Civil War thing about?

   If this makes any difference:
   I really don’t feel all that governed.
   They might think that they’re governing me, but I just let ’em think that.

   • the states had authority by means of… the Crown?

     No, because while they were the same units of governance in terms of their territory and population, the states were different from the colonies. The colonies reconstituted themselves–illegally–as states, on their own non-legitimate authority. It all was legitimized by victory.

     • Does might really make right? That would make the Declaration and its recitation of abuses a futile exercise, wouldn’t it?

       • I almost pre-emptively answered that question, because it was obviously coming. That is to say, it’s the evident and fair response. My response to that is that “right” is doing a lot of heavy lifting here, and brings in assumptions that legal positivists don’t necessarily accept. “Right” is normative, legitimacy is positive. So whether what’s legitimized is “right” is, to the pure legal positivist, a non-sequitur. More generously, so as not to simply dismiss the non-positivists’ question, I would say that whether what’s legitimized is “right” is a matter of chance.

         As to your second question, the answer is clearly no, because the Declaration was effective in shaping opinions–not the king’s, perhaps, but it had a rousing effect on the colonists and furthered the de-legitimization of the king’s rule. In that sense, it was not futile at all.

         • I seem to be unduly fixated with the procedural aspect of this.

       • I don’t think might makes right. I do think, though, that might makes law.

2. Oh, my. I just noticed this post, and I need to get to court today. It is quite beyond my ability to leave tasty fruit like this hanging upon the vine, but I must attend to real-life duties before feasting thereon.

3. “[C]ouldn’t it be said that compliance with the constitution is one of the prerequisites—part of due process itself—to becoming a law? ”

   If that were the case then Marbury v. Madison wouldn’t exist, would it?

   • Not sure I follow…

     • If every law is required to be reviewed and verified as Constitionally Compliant ™ before passage, then there would be no point in judicial review, as the defendants could just point to the “CC” on the cover.

       • Maybe, maybe not. A law might look reasonable and compliant on its face, but only in practice would we see a problem develop.

         • But is that a problem with the law or a problem with the practice? (I think we’re having the Kelo argument again.)

4. Tim,

   Here’s my go at it.

   1. If law is simply a positive statement enacted by government, then does the concept of a sovereign make any sense? Wouldn’t a positive statement establishing a sovereign be a prerequisite, and if so, who could possibly make such a statement?
   This gets into the really tricky question of political legitimacy, which is something political theorists (both normative and positive ones) have not yet sorted out. But in a nutshell, when some sufficient number of people (both internally and externally) view a certain entity’s claims to sovereignty over a particular territory as being legitimate, then functionally the sovereign is legitimate. And, for all purposes except the need for a belief in non-positivism, that functional legitimacy satisfies. I think the flaw in your reasoning here is the idea that sovereign legitimacy must come from somewhere other than those who are in a position to be affected by the claim.

   2. If you answered no to the question above, and if our founding documents do indeed establish the people as the sovereign, does that settle the question that the U.S. is definitely not a positivist state?
   I don’t see that this follows, given my answer to 1. “The people” (to the extent such a phrase ever makes any analytical sense) claimed sovereignty, and eventually persuaded a sufficient number of people to accept, and so they did in fact achieve legitimate sovereignty. There’s nothing non-positive about that.

   3. Positive law bases the legitimacy of law upon the promulgation through procedures (established by law!) and made known to those to whom the law is meant to apply. This suggests that, under positive law theory, legitimacy is at least loosely based on principles of representation, notice, and consent, among others. From where are these principles derived? How does positivism avoid an infinite regression?
   A) Those principles also derive from those who are in a position to be affected by them. Either those so affected (mostly those who are governed, but also including some who are not part of the sovereign’s domain but are affected by the sovereign’s actions; e.g., foreign powers) accept the established procedures or they do not; if a sufficient number do not, legitimacy diminishes and perhaps eventually dissolves entirely.
   B) I think that avoids an infinite regression, but in either case I’m not sure the infinite regression claim bears much weight when coming from someone who’s alternative proposal is some mystical, non-empirical, source. Such a claim is, at minimum, fully as vulnerable as a claim that may contain an infinite regress.

   4. Under positivism, is the term “basic human rights” a misnomer? I.e., no rights can possibly be “basic,” since only the institution that promulgates law—and thus creates “rights”—could ever be considered basic; rights, if any there be, are merely derivative. If not, what does it mean for a right to be “basic” if not to the effect that it precedes or is a precondition of government?
   Yes, unless we all collectively agree on what these basic human rights are. Essentially, the claim of basic human rights functions as an effort to create positive law, an effort that is hindered by their not being a common sovereign for all humans. I despise the term human rights, even as I fervently support ensuring all humans have many of those liberties/freedoms we call human rights. But I am always reminded of Hannah Arend’ts statement that she would rather have the rights of an Englishman than human rights, because in the prior case there was an entity that would actually work to defend them.

   5a. What is an act of the legislature, passed by all due procedures but that blatantly contradicts the First Amendment’s prohibition against laws abridging the freedom of speech such that it’s not even a close call? … Even for a positivist, couldn’t it be said that compliance with the constitution is one of the prerequisites—part of due process itself—to becoming a law?
   Sure, I see no problem here other than the problem of our language not always being precise enough to make this really clear (and I don’t mean your choice of words, but that our common language doesn’t always contain useful terms for relevant concepts). “We, the sovereign people,” have declared that there are higher laws and lower laws, and that a lower law must not violate the requirements of the higher law. We might say that we positivists recognize first-order law (constitutions) and second-order law (statutes), with first-order law being controlling over second-order law. The real trouble comes in if the Supreme Court approves your hypothetical no-criticism-of-the-Prez law, which any reasonable person would see as being in conflict with the Constitution. Is it really law, then? I argue that it goes back to the question of legitimacy–if the sovereign people are persuaded that it is legitimate, then it is legitimate. Either we have adjusted our understanding of the first-order law (and, sorry originalists, but because it’s all positive, we get to do that), or we have effectively declare it an exception.

   So, would a law reinstating Jim Crow be legitimate, if a sufficient number supported it? (Note here that I’m fudging on what that number is, going back to my earlier statement about our current lack of understanding about what level of support constitutes legitimacy from a functional perspective). From a positive perspective, yes. But that doesn’t mean any individual has to agree that it’s legitimate–individuals will do what they will, regardless of whether the mass agrees–and those individuals who disagree can continue to try to persuade their fellow citizens that the law is not legitimate. Ironically, this is where the use of fallacious natural law and basic human rights arguments comes in handy. This may appear to involve some contradiction, but it doesn’t really–the positive approach doesn’t say what ought to be, but what is, so whatever causes the sovereign people to change their view on the legitimacy of a law is incorporated into the positive law paradigm, but just as a tool, or mechanism, not as something substantively meaningful in itself.

   5b. Same question, ..
   I think the same answer holds. At least from this legal positivist.

   • “[W]ould a law reinstating Jim Crow be legitimate, if a sufficient number supported it?”

     It would be exactly as legitimate as the laws making marijuana illegal.

   • James,

     Thanks for playing! I’ll respond to each separately so it doesn’t get too long.

     Your response to #1 is well stated, making it hard to disagree with much of it until maybe the last sentence, which I don’t quite understand. I really am trying to understand positivism, even if I can’t hide my inclinations against it. Tell me if this highly abbreviated description is very far off: Positivism regards that authority as legitimate which arises from certain processes. To avoid an infinite regress as to what makes those processes legitimate, positivism looks to simply what is generally accepted. In this regard, it might be said that at the bottom of positivism is the principle that might makes right (though perhaps it could be stated less colloquially).

     With that being said, I am still confused by your last sentence. Do you mean I am implicitly looking to the relationship between God and man as a foundation for sovereignty in the people? You’re not totally off base as to my particular views, but I don’t think that is true of non-positivists generally, do you?

     • Tim,

       Your abbreviated version is mostly pretty good. My only critique would be the “might makes right” interpretation, which I addressed above. Rather, I think a positivist would say “might makes reality (for good or ill).”

       As to my last sentence, sorry for not being clear, and pre-emptive apologies if I’m still not clear. God is certainly one claimed source of sovereign legitimacy, but natural law/natural right could also be claimed. What I meant to say was that for a pure legal positivist, if those who are affected by a claim of sovereignty–both those subject to it and those outside the territory who can choose whether to respect that claim or not–treat the claim as legitimate, then it is de facto legitimate, no matter what claims are made to justify it, whether those claims are “God anointed me,” “the Pope appointed me,” “the people elected me,” or “I kicked the former sovereign’s ass and you’re all afraid of me.”

       For example, when Israel declared itself independent, the recognition of the U.S. and other important states aided its legitimacy, as did the support of many of those within its territory. The non-acceptance of many others within its territory and of certain other states hindered its legitimacy. Ultimately, the forces arrayed in support of its legitimacy have been successful. The same analysis applied to the Palestinians shows that their claims to sovereignty have not yet achieved the status of legitimacy. I might think Palestinian sovereignty “ought” to be legitimate, but the functional reality is that it’s not.

       To take another example, the U.S. has tried to delegitimize the Castro regime in Cuba, but it’s treated as legitimate by every other country and by its own people, so it remains legitimate. (Then there’s the issue of Taiwan and the PRC, which shows just how squishy and uncertain the attempt to define legitimacy sometimes is!)

   • #2: Since you did not answer no to the first question, this question doesn’t apply.

     #3: (A) What I am trying to understand is, are these principles arbitrary? As I see it, they can come from within (i.e., they are natural principles), or from without. Why do so many people just happen to agree they are desirable, even important? If they are not implicit in human nature, it just a coincidence?

     #4: Interesting points.

     #5: “Is it really law, then? I argue that it goes back to the question of legitimacy–if the sovereign people are persuaded that it is legitimate, then it is legitimate.” That one is going to clang in my ears for a while.

     “those individuals who disagree can continue to try to persuade their fellow citizens that the law is not legitimate.”

     But if it is “legitimate” under positivist grounds, on what basis can the positivist suggest we might go on arguing its legitimacy? Or are you saying that when the positivist says “the law is legitimate,” it really should be translated as “a sufficient number of people currently believe the law is legitimate”? Obviously, those are two very different things.

     • #3. Re; source of principles. To some extent I think there are some principles that are relatively innate to humans, that probably have an evolutionary origin based in the value of social life. The problem is that these principles are often narrowly drawn to refer only to those within our group, however that gets defined. But because the definition of “our group” is to a large degree socially constructed (and while I am by no means a social constructionist in the sense of thinking “reality” is purely a social construct, it’s clear that humans are evolved so that their belief systems are heavily influenced by their society), we can work through changing social understandings to extend the boundaries of those to whom those principles get applied. So the principles are not natural law in the sense of having some existence outside of humanity, but neither are they wholly arbitrary.

       I won’t claim most legal positivists think that. That’s my take, having studied both law and evolution.

       #5. But if it is “legitimate” under positivist grounds, on what basis can the positivist suggest we might go on arguing its legitimacy?

       On the basis that we personally don’t like it, so we want to undermine its legitimacy. On that basis, whatever method works works. There’s no doubt that people respond to natural rights language, so if the positivist doesn’t like a law that he nonetheless think is positively legitimate, he might find it practical to use natural rights language, even if he doesn’t personally buy into it. For my part, I use the language of the Constitution to argue against laws I don’t like, because it’s there, it’s handy, and nearly everyone accepts its legitimacy.

       Or are you saying that when the positivist says “the law is legitimate,” it really should be translated as “a sufficient number of people currently believe the law is legitimate”?

       Yes.

       Obviously, those are two very different things.

       Yes, but the positivist uses (or should) the first in a self-aware manner, realizing that it’s a bit of a game. Anyone who doesn’t see legitimization arguments as a bit of a game probably isn’t much of a legal positivist.

       I’ll admit that I find myself hampered by my positivism. I want broad expansion of (negative) rights for everyone, everywhere. I couldn’t really be a libertarian if I didn’t. And I think it’s true that most libertarians are natural rights folks, because that provides the most elegant basis for demanding a broad expansion of rights to everyone everywhere. But I find natural rights/natural law talk entirely unpersuasive because in the end it relies simply on assertion, there’s nothing demonstrable at the end of it. And I can’t bring myself to accept what I don’t think can be demonstrated just because it would be more convenient for my policy preferences.

       • Maybe I didn’t understand you correctly…
         But I’m thinking that you just said that incest is the law of the land in farm country.
         Correct?

         • how did you get that from whatever James said?

         • Will,

           I just happened to notice this comment, thanks to Murali’s response. If that was an attempt at humor, it was pathetic. If you are remotely serious, you’re a bigoted fool.

           In a spirit of generosity I’ll try to assume you were making an attempt at a joke before you’d had your morning coffee.

5. 1. It’s not necessary that the sovereign be legitimate or command moral respect. Obviously, it’s preferable, but not necessary. The sovereign is whoever holds the monopoly on the use of force. So, it’s not strictly necessary that the positive law establish the identity of the sovereign.
   2. No, the U.S. can be understood in positivist terms as a state with the people as sovereign. It can also be understood as a state with sovereignty divided between a variety of institutions, entities, and electors, and only a supermajority sufficient to amend the Constitution as the transcendent uber-sovereign.
   3. I fail to understand why infinite regress is a problem, although it does not apply here. The positive law is the positive law, and at that point the regress stops. But again, you’re confusing legitimacy with procedure. These are entirely different things. The procedural validity of a purported law is necessary only to the extent that the sovereign or its agent is bound to observe it; by definition, “law” must be something that people are obliged to obey (as opposed to something people cannot disobey, like gravity) so to the positivist it must be prospective (as opposed to the legal realist, from whom all laws are retrospective) and therefore must be announced in advance if it is to be obeyed. The rest of the procedural formalities are the ways by which the sovereign announces the law.
   4. Yes, “basic human rights” is something of a misnomer. Government, and law, can exist with no “basic human rights” whatsoever. The phrase is better understood as a higher tier of positive law. Do we have a “basic human right” not to be tortured by the government? That’s a fine rhetorical shorthand, the positivist would say, but the real issue is whether the government is legally restricted from engaging in torture.
   5. (a) I answered this question by pointing out that the sovereign, being divided, may well have imposed upon itself limits on its own lawmaking powers, in the form of differing tiers of positive law. Others may suggest something different. (b) This bill is not procedurally valid and therefore does not count as positive law at all, because the sovereign has not acted. The Senate is part of the divided sovereign, and the Senate has not adopted the law. (c) Is it possible to answer (a) and (b) differently? I’m having difficulty thinking of a situation in which it would be, but I’m reluctant to foreclose the possibility. An emergency degree by the President during wartime, perhaps, although I’ve not thought that through all the way.

   • Burt,

     Largely in agreement, although we come at some of this from slightly different angles, but I do have to ask about this.

     The sovereign is whoever holds the monopoly on the use of force

     Weber defined it as a “legitimate monopoly on the use of force.” Are you purposely leaving out the concept of legitimacy? I don’t think we can, since it’s impossible to actually gain a monopoly on force itself. But if we include the concept of legitimacy, I think the non-positivist can demand that you address it. In fact my take on Tim’s question is that the legitimacy of the claim to sovereignty, what makes a claim to be able to use force legitimate, is at the heart of his challenge.

     • Under my definition, I was divorcing legitimacy from potency. Your definition incorporates that, and may be superior to mine on that basis. But I think mine is a purer form of positivism.

       There’s a great moment in the new Battlestar Galactica TV series when a mutiny is underway, and Admiral Adama confronts a Marine with orders from the mutineers to execute him. He says in essence, “I’m going to go to the bridge and take charge again. You can back me up, or you can shoot me here and side with the mutineers. Make your choice.” The decision of the young man holding the gun to go with Adama is the decisive moment that that made Adama, and not the mutineers, the sovereign. Adama did not say why the Marine should have picked one side or the other. What mattered was power, not legitimacy.

       My trouble with what you suggested — legitimacy occurs when a critical mass of the people subject to authority that the authority is legitimate, for whatever constellation of reasons — is that it inevitably leads to a moral evaluation of the purported sovereign. At minimum, linking legitimacy to sovereignty has not done the work of distinguishing morality from legitimacy. So if we link them, we now must look at reasons to honor a claim to legitimacy that are morally abhorrent and therefore themselves not defensible from the perspective of searching for legitimacy.

       I understand what you’re getting at — could a hereditary monarch be a legitimate sovereign when the overwhelming supermajority of a populace accepts that monarch’s claim to legitimacy by divine right? — but it leaves us in the uncomfortable position of having to legitimize someone who is, under all the trappings and ceremony and pretence, ultimately a military dictator. I see no need to legitimize that sort of government — but I also think it unrealistic to deny that such a dictator does indeed hold power and therefore has the ability to govern.

       In other words, once the positivist accepts that the sovereign must not only have power, but also have legitimacy, then the positivist is playing the natural lawyer’s game. After a few steps of argument, the actually-enforced commands of a prevailing but illegitimate authority stop being “law” and become tyrrany. So a legitimate sovereign (however that term is defined) is to be normatively preferred to a non-legitimate one, to be sure, but the positivist is concerned with power, not moral authority, in determining what is or is not “law.”

       On the other hand, if sovereignty is determined by the monopoly of force, we don’t bother to ask who has the right to rule or whoought to rule. We ask instead, who does rule, meaning who do the people who do have the guns obey. They’re in charge, so they’re the sovereign. This does not mean that we abdicate our morality; it means that the moral gravity of the law or the legtimacy of the sovereign are evaluated on a separate axis than the efficacy of that law.

       I’m less troubled by the idea that an individual might violate the prevailing authority’s monopoly on force. The prevailing authority can and typically does call this a “crime,” and so long as the authority purports to and with substantial efficacy actually enforces, criminalizing such actions I would consider the monopoly on force intact. So the monopoly on force need not be absolute, it need only be dominant enough that those who violate that monopoly can be effectively punished.

       Where the positivist gets into rough territory are proclamations of the sovereign that are not actually or consistently enforced in practice, e.g., speed limits. If the posted speed limit is 55, but pretty much every cop on the force won’t ticket you for driving less than 63, then what’s the law? The legal realist says, “The law is really that the speed limit is 63 and what’s posted on the sign is irrelevant,” and the natural lawyer says, “The law is to not drive unsafely and both the sign and the practice are guides towards that goal,” but the positivist has a problem because there’s a dichotomy between the pronouncement of the sovereign (55) and the reality of enforcement (63). That’s enough of a problem to deal with without adding morality into the mix. I interpret this as lawless behavior by the police, but others have a problem with that concept.

       • Thanks, Burt. Too much there to ponder, and too much grading to give it enough thought at the moment, so I can’t really reply intelligently right now. But thanks for the response, and know that I am taking it seriously.

         • Same here, to both James and Burt’s comments.

       • Under my definition, I was divorcing legitimacy from potency

         I think I was treating potency as functionally equivalent to legitimacy. That is, stripping any normative sense from legitimacy (not as seen by any particular individual within the system, but from the perspective of an objective outside observer), and treating legitimacy as a purely functional thing little different, if at all, from potency.

         That approach is, I think, encapsulated in my wholehearted agreement with your statement above that;

         I don’t think might makes right. I do think, though, that might makes law.

6. It was early on that I knew I wasn’t going to have much of added value to offer to what’s been said here, but as the one who I think raised the notion of positivism in the particular discussion that was going on, I wanted to note that it was actually inadvertent. But perhaps it was inadvertently accurate? I’m not sure.

   This may or may not be what prompted Tim to frame these questions for legal positivists, but I believe the record will show that I started talking about law as a positive statement from the sovereign (or, I think I said “state”) in order to correct a (reasonable) misapprehension by Tim that in some previous verbal vomiting I had been doing I had meant to advance a claim that law itself is nothing but a social convention. I used the term, “positive statement” rather at random, in a somewhat haphazard attempt to distinguish what a state does when issuing law, which is deliberate and unilaterally defined, from convention, which is an organic and multilateral development of mutually acknowledged and mostly honored expectations. By offering this description of law, I really was not meaning to throw myself in as a legal positivist, for I’ve actually always rather regarded myself as a legal realist. But for a legal realist, it seems I at least significantly muddied the waters in which we might see a clear distinction between legal realism and positivism in this discussion, and perhaps actually swerved into clear positivism myself. I’d appreciate any assistance in assessing what occurred.

   As I say, when i said that law is a positive statement given by the sovereign about what behavior it will (not) accept, I took myself to be simply describing the objective nature of the act of the issuance of written laws by a sovereign, something I thought realists and positivists would be able to agree upon separate from their disagreements. I took myself not to be foreclosing the possibility of nevertheless believing that what the law functionally prohibits is rather still to be determined by the extent and limitations on the enforcement of the statement of what is intolerable. After all, all language is subject to some interpretation (though some dramatically less than other, as the speed limits illustrate), and facts never relate to statements that anticipate them exactly as it was anticipated they would.

   So I guess my question is, am I trying to have my cake and eat it too by holding that law is not a convention, but also holding myself to be a legal realist. Is the realist position precisely that law is a convention? I have a hard time seeing that it is, because even in a realist view, law remains a unilateral enforcement of an ultimately unilateral determination of what will be tolerated. I think this distinguishes it from convention, but I can see a very technical argument that the settling of what speed one can finally drive without being subject to enforcement amounts to a process of developing conventions between drivers and local law enforcement. I tend to think we should view this as a marginal setting of particulars along a more substantial reality of unilateral rule-setting and enforcement by an authority. I think this is where legal realism comes in: realism is simply the claim that what the law finally is is what the sovereign chooses to enforce, despite what its statements about what it would enforce held. This is, I believe, consistent with the view that law is nevertheless not merely a convention, though perhaps not with my statement that “law is a positive statement by the sovereign about what it will (not) tolerate.” Strictly speaking, though I think it could be read to be consistent with that description of law, if we take the sovereign’s statement as being composed both of a written or spoken statement about what it will tolerate, and then as the communicative component of its actions relating to the practical meaning of that statement of intent that is given by what actions it takes to enforce the written or spoken statement. I took realism to simply be the claim that the law – the statement of what is not to be tolerated – is finally the union of those two communicative components – the written or spoken statement and then the interpretive information given by pursuant action. But I may have that completely wrong.

7. Apropos of our discussion in general, here’s Lysander Spooner’s distilled rejection of positivism, FWIW:

   If physical power be the fountain of law, then law and force are synonymous terms. Or, perhaps, rather, law would be the result of a combination of will and force; of will, united with a physical power sufficient to compel obedience to it, but not necessarily having any moral character whatever. Are we prepared to admit the principle, that there is no real distinction between law and force? If not, we must reject this definition.

   Let’s say I’m in the business of selling pretzels.  The local pretzel mafia threatens to break my kneecaps if I don’t stop selling pretzels to the Sicilians.  State law will shut me down if I discriminate against Sicilians.  Both the mafia and the state—institutions that wield and exercise force through an organized command structure and that manage to coexist—threaten force against me that I cannot hope to contest.  It would seem that, under positivism, these decrees of the mafia and the state amount to a “law” against my operating a pretzel business since, in reality, they inexorably compel that result. 

   If that is the right conclusion under positivism, I submit it is an absurd one.  I further submit that a sufficient number of people would reject the conclusion as absurd, thus destroying positivism’s legitimacy. 

   On the other hand, I can appreciate the need to distinguish between functional legitimacy and actual legitimacy.  So I’m grappling with why that distinction is important.  I tend to think that when most people talk about law, they intuitively believe it has a normative component.  Indeed, I think Tim Sandefur got the better of his exchange with Orin Kerr about the badly worded Virginia law that prohibits “stopping any school bus which is stopped.”  Kerr argued that of course we know what the legislature really meant if we look to what law is for.  Sandefur rightly pointed out that Kerr’s own positivism prevents just that sort of normative inquiry. 

   Well, this is all I could bang out before I was conscripted back into baby duty. 

   • Not for nothing do real-life mafia capos refer to their protection money as “taxes” and their rules for internal and external codes of conduct as “laws.” The pretzel mafia would behave no differently.

     In your hypo, the pretzel mafia represents an alternative sovereign, and does not operate with the sanction or approval of the government. It is, in a real sense, a challenge to the status of that authority as the prevailing authority that holds the power to dispense law. To the extent that the government lacks power to stop the pretzel mafia from interfering with your pretzel-selling business, the pretzel mafia is an existential threat to the sovereign. Why? To the extent that in a conflict of force between the two results in the pretzel mafia prevailing, or in the event of a co-option of the government by the pretzel mafia (i.e., bribed legislators, police, and judges) then the pretzel mafia has usurped the role of sovereign, because the pretzel mafia and not the government is dominant in its rule-making and rule-enforcing power.

     If the pretzel mafia has everyone on the take, and you get sued for not selling pretzels to the Sicilians, you would turn to the pretzel capo and say, “Hey, these guys are breaking my balls for doing what our protection arrangement says I should do. They’re messing with my income, so’s soon enough, I can’t pay no taxes to you.” At which point, the capo leans on the judge who is hearing the case, which gets thrown out of court for some pretense: the identity of the true sovereign is proven by who prevails; the true law is that which describes what conduct will be punished (selling pretzels to Sicilians).

     Thus, over time, people will peacefully and without immediate prompting from the sovereign obey the sovereign’s rules.

     None of this constitutes an approval of the pretzel mafia as opposed to the government; rather, it is a recognition of the rules and forces that actually govern the conduct of individuals.

     • The realest possible sense. That is what it is, full stop.

       It is an advanced case if Tim is inclined to respect the legitimacy of the traditional state, but has no faith that in reporting the violent, (positively under state law) lawless behavior of the Pretzel mafia to the state, he’ll gain effective protection to pursue peaceful commerce conditioned upon compliance with the state’s laws.

       • I think Tim was trying to get at the situation of a contradictory law — the rule is “sell pretzels to Sicilians,” and at the same time “don’t sell pretzels to Sicilians.” But those contradictory rules come from different sovereigns who are necessarily at odds with one another, and one rule will necessarily prevail over the other, particularly when there are alternative sovereigns vying for primacy as I’ve attempted to illustrate. In the meantime, as you point out, there is tension and an uncomfortable exclusive choice for the citizen caught between two putative sovereigns, one with moral authority and the other with potency.

         A more interesting case could come in the hypothetical situation in which the same sovereign issues L and ~L as co-equal commands. For my part, I’d borrow from the legal realists, and look at whether L or ~L is actually enforced, and in what situations, to pronounce which is really the law. All the while, I’d divorce my evaluation on the moral worth of L versus ~L from my determination of what the law really is.

         • Hmm. This is where you have to decide what role legitimacy plays, right? Does the Pretzel Mob claim their threats against Tim are legitimate because they are his sovereign? Perhaps this makes me a positivist, but my intuition tells me that law can only come from someone making that claim, even if the aspiring sovereign claims only potency as the basis of their sovereignty. but it still matters whether they make the claim. Otherwise, anyone able to make credible threats that are credibly not going to be deterred by a self-styled sovereign are in fact sovereigns to a degree, and what they demand is in fact law to a degree. In my view, the word of someone who would admit straight up they are not sovereign and that their threats are illegal violence, but is simply claiming that the existing sovereign’s potency is not sufficient to deter them is not law as I understand law. (Maybe I just contradicted my concurrence with your positing of such as an alternate sovereign; well, I definitely did: my concurrence was more to your view that they are usurping/challenging the sovereign’s authority by challenging their potency, even while not claiming their own sovereignty.)

           Is that in fact the legal realist’s claim – that any entity able to make credible threats of violence that won’t be overruled via greater physical power is in fact a sovereign of some kind, and thus that any commands such entity issues and demonstrates intention and ability to enforce are laws of a kind, regardless of the entity not making any claim to legitimacy (even if only of the “Based on my ability to kill you you have no choice but to obey me, so I expect you to – so let’s move forward on that basis” kind?) and thus to the status of a sovereign?

         • I think you’re conflating positivism and legal realism. One school of thought does bleed into the other with ease, but they are different.

           In a nutshell, the positivist says the law is what the people in power say it is. Legal realism claims, in its purest form, that the law is what the people who are in power actually do. You can do positivism on paper or in the classroom (also true for natural law). But you can only do realism in the real world: “The life of the law has been experience.”

           Think back to the speed limit example I said above: the postivist says the law is drive 55 miles an hour or slower, because that’s what’s posted; the realist says the law is drive 63 miles an hour or slower, because that’s what will actually get you a ticket.

         • I understand those basics. (Though I hesitate at an assertion the the speed limit example is enough to suss out exactly what the legal realist claims and doesn’t).

           My last comment was all focused on one particular part of the description of legal realism you just gave and and how legal realists deal with a particular set of facts that can confront that definition: namely, how it is decided what is meant by the phrase, “the people in power” when faced with a situation in which there are multiple users/threateners of violence in some degree of proximity to each other, where no one of them can or does exercise effective deterrence against the use of others’ violence or threats against the peaceful.

         • You’re thinking of something like gangland warfare, a situation where a positivist would sense an existential threat to the sovereign’s lawmaking power? I doubt a realist would see things that way. In that situation, as realists, we’d be most interested in the actions taken by the ostensible, overt, and prevailing government as opposed to other users of force, who are the objects against whom the government acts or reacts. If the question is, “What is the law?” the answer may be “The law is that we tolerate the killing of people we believe to be criminals by other people we believe to be criminals, at least within certain spheres of their activities.”

           Unless, once again, I’ve misunderstood your inquiry.

         • Or just the situation Tim lays out. After all, the reason there is a question in Tim’s mind who’s “law” to follow is because he can’t go to the prevailing authority, the one who claims to be the sovereign, and ask to be protected (as they claim to be able to do by claiming sovereignty) from those threatening his ability to conduct commerce lawfully. That’s because it doesn’t have the potency (or is neglecting what it needs to do to demonstrate its monopoly on the legitimate use of force). Otherwise, presumably that’s what he would do, if he regarded the ostensible government as legitimate and the other threatmakers as criminals. In other words, if he regarded it as legitimate.

           So my question relates to how the realist distinguishes who gives the law, and thus what the law is. My question just is, does the realist’s analysis of what the law is limit candidates for what is law to the dictates (given by action not word) of only “the ostensible, overt, and prevailing government as opposed to other users of force”? Or otherwise, how does it deal with situations where other users of force are able to make credible threats that they are able to demonstrate they can can follow through on without having that use of violence intervened upon by any other user of force, even if some entity happens to claim to be the legitimate government in that space, and those non-governmental users of force demand obedience to some set of demands, which they demonstrate with violence they will enforce. A situation, in other words, like what Tim lays out, I believe. Does a realist say those demands are law?

         • As far as I’ve played with legal realist thinking, I’ve only concerned myself with the ostensible, “legitimate” government and what it does. So in Tim’s hypoethical situation, the law dispensed by the government may well be ineffectual and thus to the realist nonexistent. So to the best of my knowledge, the realist would say that there is no law, anarchy. If the realist wanted to say that the Pretzel Mafia constitutes an alternative, juxtaposed government, then the law would be that the Mafia’s rules govern — because the Pretzel Mafia bothers to, and actually does, enforce its rules, where the government fails to do so.

         • Right, that’s what I’m wondering. What representative legal realists would say about that. I’m sure there’d be some disagreement among them, but I wonder how much.

         • Indeed. If you get five legal realists together at a symposium, it’s not going to be very long before you wind up with six opinions.

           It gets worse when you get into critical legal studies kinds of analyses. If you get five crits together in a symposium, rather than getting six opinions, you’ll soon have concurring condemnations of the tyranny of assessing opinions in the first place as a tool of repression imposed by the power structure acting as the heavy-handed servant of the elite.

         • It gets worse when you get into critical legal studies kinds of analyses.

           I just lost my lunch.

           I believe it was my readings in con law under a critical legal studies guy that finally destroyed my interest in pursing constitutional scholarship as my primary field. I passed my comp in con law, then immediately turned to something wholly non-law related for my dissertation.

     • @Burt, Tim
       actually you are both wrong. The reason that what the mafia does is not counted as law is because of the rule of recognition. Yes, both the mafia and the state issue primary rules (general orders backed by force), but only with the ones by the state is there rule or set of rules of recognition. i.e. some set of rules that set out the geneology the primary rules have to satisfy in order to be counted as laws.

       • This is a very interesting suggestion, and it gets to the heart of the question I was so muddleheadedly trying to ask.

       • Bear in mind that Hart did in fact recognize International Law as valid law, while simultaneously accepting the fact that it lacked a rule of recognition or the backing of force. The lack of a rule of recognition was not enough (in his mind) to prevent it from having legal force because states still operated according to the rules, and believed them to be legally binding, even if they only operate through treaty or custom.

         I think there is a strong argument to be made that the Mafia ‘law’ is, if not a fully realized system, still law, in the same way that primitive law is law.

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