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.