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Yesterday, I posted a thread about what inclusive legal positivism was and why I make fun of it. Prof. Lopez responded with her views about why I am wrong for preferring exclusive legal positivism. Let me briefly address her concerns.
Thread 1/ https://twitter.com/Rachel_E_Lopez/status/1355556350676316162
Thread 1/ https://twitter.com/Rachel_E_Lopez/status/1355556350676316162
Prof. Lopez makes 2 objections: 1) By emphasizing formal aspects of law and precluding morality as a condition of legality, ELP makes it hard to critique the law and reduces the space for critical approaches such as CLS and TWAIL; 2) Morality is in fact embedded in the law. /2
I disagree. ELP, like all forms of legal positivism, aims to highlight the role that power and value play in the law. This may sound surprising, but it shouldn't be. Historically, legal positivism was a *law reform* project. /3
Philosophers like Bentham and Hart wanted to distinguish sharply between what the law is from what it should be. They didn't want to blur the two because they wanted a clear-eyed way of critiquing the law. They wanted to say: "Existing law is unjust. It should be changed." /4
They saw existing natural law approaches as making critique impossible. Suppose justice were part of law. How could you say: "The law is unjust." If the law is what it should be, then the law must be just. The space for critique disappears. /5
I think that ELP makes political critique possible (or at least easier than competing approaches) by clearly showing where values are being incorporated into law. Take the Equal Protection clause of the 14th Amend. When a court makes a decision about what equality requires, /6
the ILP thinks that they are merely articulating the law. The ELP strongly disagrees: "No, morality is not part of the law until the Court makes it so." If the Court says that X is equal, we ought to see that they are making law, not finding it. /7
Indeed, ELP regards adjudication in hard cases as essentially legislative, guided by law but nonetheless creative. It is one of the key points where power is being exercised. Courts are exercising power by developing the law in a certain direction. /8
So ELP is not only correct (imho), but also exactly the kind of doctrine law reformers should embrace. Which brings me to Prof. Lopez's second point. She is right to say that the law is filled with norms that contain moral terms and concepts. /9
Many legal rules incorporate moral demands such as equality, reasonableness and fairness. Again, I would submit that ELP makes critique easier than ILP by insisting that determinations about what morality requires *as demanded by legal rules* is an exercise of power. /10
Suppose the law says to courts: "Decide what reasonableness requires." ELP maintains that judicial activity is part law finding, part law making. When courts determine that a reasonableness standard applies, they are finding law. /11
But when they determine what reasonableness requires in a particular case, they are making law. Courts are using their own views about morality to develop the law. ILP blurs the project of critique by claiming that legal officials are always finding law, not making it. /12
These are very cursory remarks about a very well-developed area of jurisprudence. I thank Prof. Lopez for stimulating this debate. /13
