Legal Positivism as a Method of Judicial Revitalization

Abstract

Historically, it is often observed that one of the first institutions of the state to be sacrificed in the wake of a slide into authoritarianism is that of the ‘rule of law,’ or in a broader sense, that of the judicial-legal order. This analysis will contest that in the wake of great political unrest and turmoil, an under-evaluated topic is the operation of the legal systems of Western nation-states. I will frame this discussion around two major points. (1) With the rise of authoritarianism procedural justice has increasingly witnessed the resurgence of decisions that find their validity in sources external to the judicial system. These external sources include natural law, religious law, and what philosophers like Carl Schmitt and Giorgio Agamben refer to as the ‘state of exception.’ As this dynamic is being facilitated by the current political environment, it is evident that the use of authoritative sources derived outside of the legal system to justify decisions made within this system, will have many negative consequences to the rule of law, the proper administration of justice, and the practice of liberal democracy itself. (2) Therefore, this essay will defend the legal positivist tradition of law and demonstrate its applicability as a possible solution to these growing issues on the following grounds: (a), the need for law to be neutral; (b), the necessary separation of law and morality; (c), and the use of the rule of recognition. The final section will discuss legal positivism’s important place within the modern state and conclude with a review of the paper’s arguments along with some final thoughts. Overall, this essay concludes that the need for a return to the principles of legal positivism within our legal systems is more important than ever in our current politico-juridical context.