I’ve enjoyed our recent discussions on the nature of rights and laws, as they’ve gotten me considering old topics in a new light. New wine in old skins, or old wine in new skins, something like that. (Does that metaphor still mean anything? Wineskins—is that still a thing?) So that I’m not the only one afflicted with these nagging questions, I’m putting these musings to you. If you’re a legal positivist or play one on tv, try answering some or all of the following questions. I’d be interested in your thoughts.
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?
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?
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?
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?
5a. I asked Burt a variation of the following question, but want to put it to the group: 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? For example, a law prohibiting criticism of a sitting President. 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?
5b. Same question, but instead of blatantly contradicting the First Amendment, it was passed only by the House (not the Senate) when the President signed it, thus violating the Constitution’s bicameralism and presentment clause. Is this a law? Is it possible to answer this question differently from the one preceding?