Posted by
John Ostrowski on Monday, May 07, 2007 11:51:56 AM
One of the frequent criticism of
natural law proponents by
positivists that deny the existence of natural law is that natural lawyers are simply cloaking their own ideology in a mantle of false humility. It seems to me that this is an unfair characterization.
Positivists criticize natural lawyers because their presuppositions necessitate that they assume
prima facie that natural law is untrue, and they conclude, unfairly, that natural lawyers are thus cloaking their ideology in false humility. There are two problems in reasoning. First, their assumption that natural law is false. Second, their conclusion that if it is false, its adherents are liars instead of simply misguided. I can level the same criticism back at positivists. Positivism is false, and legal positivists thus assert, falsely, that they are above the dictates above natural law. Even if one takes positivism as true, there is still the troubling reality that legal positivists in position of power believe that they are qualified to determine the law.
I will end with a quotation from the great Catholic liberal (in the classical sense of the term) Frédéric Bastiat:
"If the natural tendencies of mankind are so bad that it is not safe to permit people to be free, how is it that the tendencies of these organizers are always good? Do not the legislators and their appointed agents also belong to the human race? Or do they believe that they themselves are made of a finer clay than the rest of mankind?"—from
The Law
In short, the positivists are the true elitists.