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Unpublished Paper
History and the Characterization of Law: Just War and Other Legal Things in the Age of Positivism
ExpressO (2012)
  • John Lunstroth
Abstract
If what is important in our affairs is that we know the truth, then are there present things about which we must know the past in order to know the truth? I argue there are, and that one category of those things is legal things, the law. By law I mean political theory, justice, right, rights, positive law and ethics; and all of the various ways those things have been understood by jurists. The way we reason about the law radically changed in the Enlightenment. By the end of the 18th century science and positivism as general methods of reason had refracted the unity of law into a scientific part and a prudential part, laws of nature and natural law. The natural law part consisted of various concepts that were then each understood to exist independently of the others: morality, positive law, political theory, justice, ethics, etc. In the aftermath positivism dominated the way law was understood. In positivism law is opposed to morality, a categorical term into which all of the prudential concepts are reduced. The prudential fragments also underwrote the development of the social sciences, and operationalized the development of ideology/critique (e.g., Marx, Nietzsche, Freud, Foucault) and the relativization of political values. Any discussion of a fragment of law must include discussion of the other fragments if the Right or truth of the law is to be understood. Positivism, a fragment, is inherently incomplete as an understanding of the law, and its incompleteness mandates that if truth about the law is sought, then it must be sought in the holistic vision of law. I generalize to argue that any argument about living things that touches, traverses or occurs after the Enlightenment must take into account the changed nature of historical space originating in the Enlightenment. Nothing in post-Enlightenment historical space, especially legal/moral things, can be taken at face value, including positivism and the US Constitution. We must strive to reassemble or revision Right for an age in which positivism is the best tool of ideology, and the dominant ideologies serve oligarchic ends.
Keywords
  • Just War
Disciplines
Publication Date
January 19, 2012
Citation Information
John Lunstroth. "History and the Characterization of Law: Just War and Other Legal Things in the Age of Positivism" ExpressO (2012)
Available at: http://works.bepress.com/john_lunstroth/1/