As you already know, having thor­oughly read and under­stood the About and Policies pages, I am a law student. I attend a public law school in a key Midwestern swing state. This infor­mation is specific enough to narrow the field to a handful of schools, but not so specific that my professors or fellow students might discover my identity. Such a discovery would likely result in an unpleasant situation, as I fully intend to engage in critical commentary on various aspects of my legal education. To wit ~

Law school began for me last year with a one-​​week, “intensive,” intro­ductory course titled “Introduction to Law and Legal Systems.” Oh, thought I, in preparing for this course. They intend to introduce us to their particular peda­gogical method­ology and give us a basic under­standing of the nature of law and its function in society. I expected we would discuss the basics of law, before getting into the substantive and proce­dural studies of our regular semester courses. After all, it is generally important to identify the subject of study before beginning to analyze it. So I expected questions like “what is law?” or “what is the role of government?” I also expected some kind of statement or description of the method by which the school expected us to learn the subject matter. Alas, woe and misfortune! This is not what “Introduction to Law and Legal Systems” turned out to be!

An intro­duction to the admin­is­trators. A speech by the Dean full of vapid remarks about the great power and respon­si­bility of lawyers (complete with the expected, inelegant refer­ences to a certain arachnoid comic book character). An exhor­tation to community service from the head of the legal clinic. Invitations to join, and the benefits of joining, the local, state, and national bar asso­ci­a­tions. A cursory and purely descriptive review of the structure of American government, which everyone should have learned by the 9th grade. A brief exercise in reading a judicial opinion. A threat­ening lecture on the honor code and its conse­quences. And finally, a two hour lecture on substance abuse. Apparently, all lawyers are alco­holics, and must be constantly reminded of the fact.

I wondered imme­di­ately whether the observed high incidence of alco­holism among attorneys might perhaps be related to the lack of a cohesive philosophy of law. I mean, here we all were, starting in on studying torts, contracts, and the delicious but perilous intri­cacies of civil procedure, and we still hadn’t figured out what we, as nascent attorneys, were supposed to be studying, or why.

It took a whole year before I heard the question, “what is law?” or even the word, “philosophy,” in the classroom.

In my second year course studying unin­cor­po­rated business entities and basic business asso­ci­a­tions, the professor suddenly called on a student and asked her the question, “what is law?” Being generous, I attributed her startled, inco­herent and vacuous response to the unex­pected nature of the question. But I should probably know better. The topic continued for several minutes, with several students contributing. None of their comments are memorable to me now, a week after the event. Someone may have said something like, “a set of rules that determine people’s rights,” but I really don’t remember. Nothing was worth remem­bering. I long ago developed the habit of imme­di­ately forgetting incorrect state­ments made in the classroom. Fortunately, the professor must have gotten the answer he was looking for and moved on. Although I offered to contribute an answer, I was not invited to do so.

The answer, of course, is that law is the means by which the coercive power of government is placed under objective control. The function of law is to restrain government action. Its power to restrain private action, by setting the objective rules for when the government may use coercion to affect private action, is inci­dental. Understanding this, of course, requires an under­standing of the role of government in society, a subject we only broached this week in Constitutional law class.

American law is hier­ar­chical. The Constitution is the legal foun­dation. It is itself built on a more funda­mental foun­dation of philosophy, but given that, the Constitution is the logical starting point for a study of law. But this is not where we begin. Constitutional law is taught only in second year. I have learned that this is a common practice among law schools, but not the most common. Most teach some form of Constitutional law to first-​​years. The rationale for putting it off is that Constitutional law is full of varie­gated and complex legal doctrines that may be difficult for first-​​years to grasp. I disagree. More on that in a bit.

So here I am, getting Constitutional law in my second year, and the professor begins to discuss legal syllo­gisms and the role of reason in the law. Excitement! Adventure! But no. Grief and regret! The professor, who is, I admit, quite well-​​versed in the modern Western (read: Kantian, and, notably, Humean) philoso­phers, makes the following pronouncement (paraphrased):

Logic is great for simple, concrete legal questions where the answer is easy. But in most legal analysis, you have to balance the value interests , and logic just doesn’t work for that.

This is, of course, a result of the influence of Hume and his guil­lotine, severing is from ought. Ayn Rand clearly and effi­ciently does away with the is-​​ought dilemma:

In answer to those philoso­phers who claim that no relation can be estab­lished between . . . values and the facts of reality, let me stress that the fact that living entities exist and function neces­si­tates the existence of values and of an ultimate value which for any given living entity is its own life. Thus the vali­dation of value judgments is to be achieved by reference to the facts of reality. The fact that a living entity is, deter­mines what it ought to do.

Ayn Rand, The Objectivist Ethics, in The Virtue of Selfishness, 13, 18 (1964). In my great magna­nimity, born of a desire to always assume the best in people, even when they’re wrong, I attributed my professor’s continuing adherence to Hume to a simple lack of famil­iarity with Rand’s solution to the is-​​ought dilemma. He was, after all, quite laudatory of reason and logic in the first instance, and even went so far as to make some minor depre­catory remarks about Kant. But I did not raise the issue in class. Perhaps I should have.

All of this got me thinking. American legal thought is dominated by two related philoso­phies. They are so related that they can reasonably be called different aspects of a single philosophy. The first is Positivism. This is the idea that there is no objective ought that can be applied to the law, and so the law must be treated simply as being what it is. And it is whatever the law maker says it is. Positivism is respon­sible for the extremely heavy weight given to precedent in the law. Read Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), which was written prior to the dominance of the law by Positivism and the related Progressivism in the 1830s, and you will find that Chief Justice Justice Marshall does not once cite precedent, even though there is relevant precedent, from the Court itself, to support him. Precedent is useful for main­taining uniformity in the law over time, but entirely useless if the object is to correct histor­i­cally entrenched, bad law.

The other is Progressivism. Progressivism feeds on Positivism. If the law is only held accountable to itself, and can ulti­mately be whatever the law maker (Congress, the Framers, or the Majority by vote) decides it will be, then the funda­mental, assumed premises on which the country was founded can be tweaked, manip­u­lated, and eroded in the name of social engi­neering. Prof. Adam Mossoff describes the effect of Progressivism on the right of property in his lecture, The Rise & Fall of Property Rights in America, available for viewing at the Ayn Rand Institute’s Website (free regis­tration required). Positivism strips the ought from the law, and makes true that old maxim of legal education, “there is no right answer in the law,” so that Progressivism may manip­ulate the law and engineer society. If a law stands in the way of the Progressive social engi­neering goals, Positivism allows the law to be changed, without respect to reality to determine what the law ought to be.

Progressivism is the philosophy behind that half-​​remembered defi­n­ition of law I heard in by business asso­ci­a­tions class. Law is no longer a means for controlling government, but a means for controlling indi­viduals. And Positivism makes the rules arbitrary.

My Constitutional Law professor noted that, although the word “equal” appears in the Declaration of Independence, it did not appear in the Constitution until the rati­fi­cation of the 14th Amendment. Therefore, he concludes, the Framers did not intend for the Constitution to be inter­preted as requiring the equal appli­cation of the law. Bunk, says I. Read the Declaration, and you find that the Founders believed it was self-​​evident that all Men are ‘created’ equal . It was not necessary to state this in the Constitution because it was assumed as given. Along with the rights to life, liberty, and pursuit of happiness. The philosophy of the Founders took these funda­mental precepts of government for granted, so there was no need to state them in the Constitution. In fact, the Founders could not possibly have envi­sioned that the Constitution might one day be inter­preted under a philosophy that did not presume these funda­mental issues. The government they created wouldn’t work without them.

The philo­sophical change to Positivism vitiated the ideology on which the country was founded, at least as far as the law was concerned. And this is the essence of my reve­lation about philosophy in legal education. Philosophy is no longer relevant to the study or practice of law. If law is whatever the law maker says it is, and there is no means, other than whim, for deciding what the law ought to be, then there is no use for philosophy in the study of law. The student need only treat laws as meta­phys­i­cally given, percep­tually self-​​evident facts. Because it might change in nature at the blink of an eye, it is useless to take a prin­cipled approach to studying law. From the Modern Positivist position, anyway.

And as the law is entirely dominated by Positivism, it is deaf to arguments that challenge estab­lished law on principle. So law students do not need to be versed in philosophy.