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prism illustrates one of the downsides of legal positivism

June 7, 2013

People seem to have this weird idea that a piece of paper written 226 years ago in and of itself guarantees and protects their right to things like privacy, freedom of speech, freedom of assembly, etc. But I think things like last year’s concerted crackdown of Occupy protests across the country and the even more recent revelation about the government’s PRISM spying program illustrates one of the downsides of legal positivism, where laws are considered valid because they’re enacted by ‘legitimate authority’ (i.e., the ruling regime), and the ruled are unconditionally obligated to obey them/are subject to their authority. As Leo Strauss argues in his essay on Plato in History of Political Philosophy, when “the just is the same as the lawful or legal,” there’s nothing higher to which one can appeal (37). Moreover, when justice is nothing but the advantage of the stronger (the idea essentially underlying legal positivism), and the will of the ruling class becomes the sole source of justice since they create and enact the laws that the rest of us, as citizens, must follow and are subject to (even without our knowledge or consent), we become trapped within a system where justice doesn’t exist for the state since each regime “lays down the laws with a view to its own preservation and well-being” (38). In essence, the Establishment is above the law as we conceive of it. They play by an entirely different set of rules; and the only truly effective check and balance on state power is a vigilant citizenry that’s willing to stand up and say enough’s enough. To rephrase a line from John Stuart Mills, which I think apt: “[The Establishment] need nothing more to compass [its] ends than [the people] should look on and do nothing.”

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