Legal Positivism


Legal Positivism and the Drift from Moral Law: A Consideration


Epigraph

"Which shew the work of the law written in their hearts, their conscience also bearing witness…" Romans 2:15

Definition: What Is Legal Positivism?

Legal Positivism is the doctrine that law is whatever the state declares, valid solely because it was enacted by the proper authority. It denies any necessary connection between law and morality. Under positivism:

- Law is valid because it is law. 
- Justice is irrelevant to legality. 
- Rights are created by government, not inherent in persons. 
- Authority, not truth, defines obligation. 

In this view, an unjust law is still a law, and citizens owe obedience simply because the state has spoken. Positivism severs law from its moral root and replaces conscience with compliance.

With that understanding, we turn to the true foundation of law — the one positivism rejects.

I. The Foundation: God’s Law, Moral Law, and the Law Written in the Heart

Law did not begin with human institutions. It began with God’s own command. The first legal act in human history was spoken in Eden:

"Of the tree of the knowledge of good and evil, thou shalt not eat."    Genesis 2:17

This was not merely a rule. It was:
- a moral boundary 
- a covenantal test 
- a revelation of divine authority 
- the first articulation of right and wrong 

Man was created with legal conscience. He did not develop it through custom or evolution. He received it as part of the image of God — the capacity to understand obligation and consequence.

Even after the Fall, the moral law remained:

"Which shew the work of the law written in their hearts, their conscience also bearing witness, and their thoughts the mean while accusing or else excusing one another;)"  Romans 2:15

This internal witness explains why every society instinctively recognizes:
- the wrongness of murder 
- the duty of truth 
- the obligation of covenant 
- the reality of justice 

Thus, the true foundation of all legitimate law is threefold:

- God’s eternal law 
- The law written in the heart 
- Revealed law 

Law was meant to be a tool of justice, not an idol. It was meant to serve righteousness, not replace it.

II. The American Founding: Law as Servant, Not Master

The American founders appealed to "the Laws of Nature and of Nature’s God" because they understood that civil law must answer to a higher standard. Their assumptions were clear:

- Rights are endowed by the Creator. 
- Law is discovered, not invented. 
- Justice is objective. 
- The state is limited. 

Law was a means, not an end — a tool to secure justice, restrain evil, and protect the innocent. It was never meant to be venerated for its own sake.

III. The Drift: From Law as Tool to Law as Idol

Over time, a profound shift occurred. Law ceased to be a servant of justice and became an object of reverence. This drift unfolded in stages.

1. Morality becomes subjective

With relativism came the belief that moral truth is personal, not public. Conscience was privatized. Law began to fill the vacuum.

2. Law becomes procedural

Justice was replaced by legality. If the proper steps were followed, the law was assumed to be legitimate — regardless of its moral content.

3. Law becomes self‑referential

Instead of answering to justice, law began answering only to itself. Courts cited precedent, not principle. Legislation referenced authority, not morality.

4. Law acquires a priesthood

As law became an idol, it developed:
- its own clergy (lawyers and judges) 
- its own vestments (black robes) 
- its own sacred spaces (courtrooms) 
- its own rituals (motions, filings, incantations of procedure) 
- its own language (a technical dialect as opaque as ecclesiastical Latin) 

The  "Church of the Bar" emerged — a professional priesthood guarding access to the sacred texts, interpreting them for the laity, and enforcing orthodoxy.

5. Law becomes untouchable

To question the justice of a law became, in some circles, to question the legitimacy of the entire system. Law was no longer a tool; it was a deity.

This is the essence of positivism: law for its own sake, law as its own justification, law as the final authority.

IV. Positivism Ascendant: The Triumph of the Black‑Robed Priesthood

Legal Positivism asserts that:
- Law is valid because it is enacted. 
- Morality is irrelevant. 
- Justice is optional. 
- Authority defines truth. 

This philosophy transforms the legal profession into a clerical caste. Judges become high priests. Lawyers become intermediaries. The courtroom becomes a sanctuary where the laity must remain silent unless spoken for by an initiated member of the order.

The language of the law becomes deliberately inaccessible — a modern ecclesiastical Latin — ensuring that only the initiated can interpret the sacred texts.

Once law is detached from moral truth, it becomes a tool of power rather than a guardian of justice. A society can enact evil with a clean conscience simply because the procedure was followed.

V. The Present Moment: A Nation Forgetting Its Foundations

We are living in a culture shaped by positivism. The signs are unmistakable:

- Courts deciding moral questions once reserved for conscience 
- Citizens treating legality as the measure of right 
- Legislatures redefining fundamental realities 
- Rights treated as government-issued privileges 
- Law venerated as an end in itself 
- A professional priesthood guarding access to justice 

This is the drift: 
from God’s law → to Natural Law → to civil/criminal law → to procedural law → to positivism → to legal idolatry.

The further a nation moves from its moral foundation, the more it relies on raw authority to maintain order.

VI. The Way Back: Restoring Law to Its Proper Place

A society cannot escape positivism by passing more laws. It must recover the truth that law is a servant, not a master.

We must return to the conviction that:
- Law is older than the state 
- Justice is not created by majority vote 
- Rights are inherent, not granted 
- Conscience is not optional 
- Authority is accountable to truth 

Only by re‑anchoring law in the eternal moral order — the law of God and the law written in the heart — can a nation recover its bearings.


Colophon

This work was composed in the conviction that law is older than nations, older than constitutions, older even than the memory of man — for it proceeds from the eternal character of God and is written upon the human heart. The reflections gathered here were shaped by the belief that a people cannot preserve justice if they forget its source, nor defend liberty if they sever it from truth.

May this writing stand as a small witness against the drift of our age, and as a reminder that legitimacy does not rise from human will but descends from the One who is Lawgiver, Judge, and King. What is sound in these pages belongs to Him; what is lacking belongs to the author.

Yours in Him,

Tony