Philosophy of Law – Ether Wave Propaganda

Henry C. Carey on Law and Civilization (Part 2)

In my previous post on the 19th century political economist Henry C. Carey I underscored some of his methodological suppositions (his Newtonianism, his Baconianism and his dependence upon William Whewell). I made two further points: first, that Carey’s system-building and his emphasis on man and nature being under the rule of law was typically of social theory penned during the nineteenth century. One finds the same flavor of contention in the work of John William Draper and Henry Buckle, where both authors attempted to bring diverse sorts of information ranging from facts concerning the course of civilization to the laws and regularities of human psychology under one kind of generality, where facts and the laws which they illustrated were exemplars of a well-ordered universe. This is more or less the purpose too of later sociological reasoning.

Depending upon the writer involved, this mammoth reductionism and systems-building, with its consequent determinism, was to differing degrees rhetorical, heuristic, deadly serious, and inconsistent. As importantly, these efforts at system-building and reduction often obscures digressions and departures which form intriguing sub-arguments and sub-systems.

Morris R. Cohen on the Place of Logic in Law, Positivism, Deduction, and the History of Science

Morris Raphael Cohen (July 25, 1880 – January 28, 1947) is today a relatively unappreciated philosopher outside some encamped circles in the philosophy of law, intellectual history, and the intellectual study of jurisprudence. Sidney Hook in “The Philosophy of Morris R. Cohen,” in the New Republic, outlined the reasons for this. He noted, “Honored for his candor, his scholarship and critical insight, his philosophical colleagues with a true gesture of piety to the spirit of intelligent dissent recently conferred upon him the presidency of the American Philosophical Association.” But, “he has no following.” Hook continued, “His writings have consequently bewildered those who have sought to understand him only in the light of his negations.” Cohen had little patience for Marxist or overly sociological discussions of law, but he was not a strident legal positivist. He did not think that jurisprudence was a closed system of logical relationships as would a legal formalist. Cohen was however a kind of “reductionist.” Law was logical, and much like the natural sciences, useful due to its regularity and generality. Law, however, much like the more contemporary sciences of non-Euclidean geometry and quantum mechanics, had to be open enough to address the inherent messiness of life.

John Austin, Legal Positivism, and the Debate over the Sources of Law

One of the most important developments in the understanding of law, what law is and why it is that law has authority in society, was the move away from natural law jurisprudence, articulated by Cicero, Montesquieu, and by Hugo Grotius in the nineteenth century. Natural law jurisprudence was the idea that law derived its authority due to the perfection and purpose of nature and divinity. Since true law had its origins and its sanction from nature and divinity, outside of society, it stood against whim, convention, custom, and caprice. Laws which were against natural law, against reason or justice, were not laws at all.

Early in the nineteenth century, legal positivism, espousing a narrow definition of “positive law,” or those laws enacted by the State or sovereign in the form of commands, attempted a similar style of reasoning to that of earlier natural law jurisprudence insofar as, like natural law theory, it was both rationalistic and deductive. Legal positivism in John Austin’s prose, considered law to be law (as opposed to morality and custom) if it was a command from a sovereign authority that was coercive. This meant that going against the command of the sovereign brought threat of an “evil.” Law was sovereign, moreover, if it emanated from an authority which was subject to no other, such as a king or parliament, who was habitually obeyed.