Elena Kagan and the Perils of Legal Positivism

It goes without saying that Supreme Court nominee (soon to be justice) Elena Kagan is a charming, intelligent, well-spoken woman who, unlike most politicians, gives every impression of being a genuine “moderate” in her views, someone who understands the complexities involved in great social issues and who is willing to acknowledge that people of good will could disagree with her.

Yet there was one point in the confirmation hearings today that revealed an ideological seed that, I fear, will grow into something quite disturbing during the 30 years or more she will be seated on the bench.  And that is her apparent agnosticism towards the existence of unalienable natural or human rights.

Questioned by Sen. Tom Coburn, R-Okla., about whether she believed in “unalienable rights,” such as those referenced in the Declaration of Independence, Kagan replied quite firmly that she did not.

“You should not want me to act in any way on the basis of such a belief” in people’s rights outside the Constitution and laws, Kagan said. “I think you should want me to act on the basis of law.”

This exchange reveals that Kagan is, as many liberals today are, a believer in what is known as legal positivism. Legal positivism was a highly influential theory of jurisprudence throughout the first half of the twentieth century. But the horrors of World War II and Communist and Nazi totalitarianism made many law professors rethink whether it is a good idea to teach the doctrine that what is legal is whatever the State says is legal.

After all, Adolf Hitler was democratically elected by the people of Germany. The summary executions and brutalities of the Communist regimes were “legal” in the sense that the State authorized and approved them.

Much of what has gone wrong in the western law, over the last 150 years — from the approval of slavery in the Dred Scott decision to the legalization of abortion in Roe v. Wade — stems from this fundamental, anti-Christian belief that basic human rights do not really exist, that the State may grant, or take away, whatever rights and “privileges” it deems necessary.

In contrast to the “new” theories of rights advocated by Hobbes, Bentham and others, the classic Judaeo-Christian view (expressed most succinctly in natural law theory) has always been that governmental elites must answer to a higher law than mere human legislation.

When governments repeatedly transgress these fundamental human rights, it is the right of the people, as Jefferson put it in the Declaration of the Independence, “to throw off such government and to provide new guards for their future security.”

Governments that fail to respect the “unalienable rights” endowed by God are tyrannies and, therefore, illegitimate.

Once again, these ideas stem, not from atheistic philosophers, but from Christian theologians reflecting upon the truths found in the Bible.

The notion of a Divine Law above mere human law was expressed clearly by Thomas Aquinas in his Summa Theologica, ratified by John Calvin in his Institutes, and summarized succinctly by Sir William Blackstone in his Commentaries on the Laws of England (1765), one of the chief sources used by Jefferson (and all the Colonists) in crafting the new American government.

According to Blackstone, civil law is given, not to create rights, but to protect already pre-existing natural rights.

The primary object of law, he says, is to maintain and regulate those “absolute rights of individuals … such as would belong to man in a state of nature, and which every man is entitled to enjoy, whether in society or out of society.”

“Those rights then which God and nature have established, and are therefore called natural rights, such as are life and liberty, need not the aid of human laws to be more effectually invested in every man than they are; neither do they receive any additional strength when declared by the municipal laws to be inviolable. On the contrary, no human legislature has power to abridge or destroy them, unless the owner shall himself commit some act that amounts to a forfeiture.”

This great tradition of classical natural right — which extended from the biblical prophets and the teaching of Christ through the medieval scholastics and Protestant divines up to the U.S. Declaration of Independence—was challenged directly by what is sometimes called “political atheism.”

A long string of anti-Christian thinkers—first Machiavelli, then Thomas Hobbes, and finally Jeremy Bentham and John Austin—rejected the notion of human rights as nothing more than, as Bentham put it, “anarchical fallacies.”

The English political philosopher Thomas Hobbes (1588–1679) advocated a strong totalitarian government (the “leviathan”) as the only way to save human beings from themselves. Famously describing human life as “solitary, poor, nasty, brutish, and short,” Hobbes insisted that the reality of human interaction was that of “war of every one against everyone.”

From this, he says, it follows that “nothing can be unjust. The notions of right and wrong, justice and injustice have no place [in the state of nature] (Leviathan, 13.13)

The only hope for a modicum of peace and civilization, Hobbes thought, was for individuals to surrender irrevocably their natural rights to a totalitarian state (such as an absolute monarch). Fear of the “leviathan” would force selfish and violent men to maintain order and limit their crimes. For this reason, Hobbes rejected the Christian notion that individuals could ever disobey immoral laws or criticize the State in any way.

Nevertheless, Hobbes accepted the classic notion, developed in the early Middle Ages, that government derives its powers from the “consent of the governed.” This “social contract” idea did influence the American Founders. But for Hobbes, the “consent,” once made by a majority, is irrevocable and cannot be changed or transferred without the permission of the original sovereign.

It sometimes happens that a sovereign puts to death an innocent man, he says, but, in essence, this is simply the price people must pay for having a government. “Nothing the sovereign representative can do to a subject, on what pretense soever, can properly be called an injustice or injury, because every subject is author of every act the sovereign does,” he says. For this reason, “tyranny” is merely an empty word for a monarchy that someone dislikes … just as “oligarchy” is merely a word used for an aristocracy that someone dislikes.

Needless to say, the American Founders didn’t accept Hobbes’s notion of absolute, unquestioning obedience to the State. Rather, they worked out an entirely new theory of government that combined the best of both the classic Christian theory of natural rights and the notion, drawn from the early Middle Ages, that the legitimacy of a government was the result of the “consent of the governed.” But unlike Hobbes, the Founders believed that, when a government violated a people’s natural rights “endowed by their Creator,” then it was the “duty” of the people to “alter or abolish it” and to “institute new government.”

Not surprisingly, not everyone took to this new theory of government. Totalitarians throughout history, whether monarchists or communists, dislike the idea that the power of government can be constrained in any way.

The English philosopher Jeremy Bentham (1748–1832), who witnessed the American Revolution, rejected entirely the notion of natural rights and the entire natural law tradition. His enemies were both Sir William Blackstone and John Locke. The idea of natural rights, he said, “is simple nonsense: natural and imprescriptible rights, rhetorical nonsense,—nonsense upon stilts.” The founder of the movement called “legal positivism,” which is still influential today, Bentham believed that the only rights that truly exist are rights created by the civil government. If the government hasn’t granted the right, he said, it’s not a right but a wish. Whereas Aquinas and other Christian thinkers insisted that a civil law that violated the law of God is not a true law and can be justly disobeyed, Bentham and legal positivists insist that this is not the case. According to John Austin, another influential founder of legal positivism, morality and law have nothing to do with one another. The validity of a law lies only in that it is proclaimed by a sovereign. The influence of Thomas Hobbes is evident throughout legal positivism. The power of the state is virtually limitless.

This is the disturbing philosophical pedigree, if you will, to Elena Kagan’s off-hand remark that she doesn’t recognize any natural rights “not found in the Constitution or in law.” In other words, if the State doesn’t say it’s wrong… it isn’t wrong. If the State says it’s okay to do something, it’s okay.

After the horrors of the Nazi era, we know that isn’t true. Elena Kagan knows it, too. And that’s why, as nice as she is, what she said is so disturbing to anyone who believes in human rights.