June 22, 2011

Big Government and legal positivism

By Big Government and legal positivism

Author:  Damien M. Schiff

Today's Wall Street Journal has an interesting piece by master political observer Michael Barone on the longing of the American Left for the decades immediately following World War II, when Big Government, Big Labor, and Big Business were regnant and everybody was, purportedly, happy.  Barone trenchantly observes that culturally America was much more homogeneous in the forties, fifties, and sixties, than today, and that liberals often overlook this "downside" of a return to the post New Deal and Great Society era.  Barone speculates that old-style liberal Big Government inevitably leads to a stiffling cultural uniformity.

I think perhaps that one can make the same conclusions about the American judiciary and the bar.  During the period that Barone analyzed, two competing schools of legal thought dominated the academy and the judiciary:  legal realism and legal process.  These theories held that the law is basically just the policy preferences of judges, that original meaning or intent is impossible to ascertain, and that therefore the best we can hope for is a system that provides procedural protections and requires certain hoops to be jumped through before government (particularly its administrative arm) can act.  Think of Earl Warren and Learned Hand.

And just as Americans today are much less comfortable with Big Government than their parents and grandparents, so too lawyers today are much less comfortable with theories of law and judging that cede too much to predilection and discretion and subjectivity.  It's not surprising that originalism and textualism, in all their forms, have emerged over the last several decades to compete with the ancien regime of legal positivism.

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