The Unity Thesis: How Positivism Distorts Constitutional Argument(2012)
AbstractThe scientific revolution (or radical Enlightenment) distorted the way we understand the law by causing legal concepts, such as the idea of state, to be split into a scientific (positivist) part and a prudential (moral) part. The Unity Thesis gives us tools for understanding the mechanisms by which that happened and for mapping routes to the future that may be better for everyone. I illustrate using the US Constitution. The idea of the constitution we receive is already a scientific concept, originating in the ideas of state and common good that prevailed well into the 17th century. On the one hand we have the advances in political theory that fed the Constitution, such as the autonomous consenting individual, democracy and inalienable rights that can be understood as prudential concepts. On the other hand we have the Constitution itself, establishing a political structure that protected and privileged the interests of the wealthy over those of everyone else through the electoral college, the upper house, the separation of powers, the restrictions on suffrage, etc. We have always comforted ourselves with the ideologies of democracy and inalienable rights, while living in a state ruled by the few for the benefit of the few. Since states always have been and always will be organized around the interests of the few, how can unifying our constitutional self-identity move us towards a better state of affairs? Democracy and human rights depend on discord between the rich and the poor, and that serves no one. It is better to abandon their ideals in favor of an emphasis on the common good. We must understand ourselves as part of the same state, the same constitution, to reach the vision of the common good.
Publication DateAugust, 2012
Citation InformationJohn Lunstroth. "The Unity Thesis: How Positivism Distorts Constitutional Argument" (2012)
Available at: http://works.bepress.com/john_lunstroth/2/