It’s difficult to see a connection between the National Security Agency’s data mining initiatives and the federal government’s incessant and expanding role in the economy. However, both domestic surveillance conducted by the NSA and federal economic policy originate from the same root. Legal positivism, or positive law, has helped pervert the rule of law in the United States for over a century. The flaws in this system of thought have, more recently, become obvious. Worse, it’s clear that this form of legal thinking is as unjust as it is hypocritical.
To be clear, legal positivism stands in contrast to the conception of natural law. Natural law operates on the premise that man lives life on this earth based on universal premises which are confined to the natural world and discoverable through the careful application of reason. Natural laws’ focus is to subordinate society to morality through individual rights. This system of thought was a critical byproduct of the Enlightenment period and served as the backbone of English common law and American jurisprudence.
Legal positivism has proven to be a chaotic and inherently unstable system of thought. Rather than attempting to provide a legal framework to shield the individual from unwarranted coercion by an elected legislature, legal positivism aims to do just the opposite. Positive law “creates” rights through the legislative process. Instead of observing the realities of nature and defering to reason, proponents of positive law state that law is contingent upon the circumstances of the time and must be shaped accordingly as new “groups” arrive on the social scene. Legal positivism rejects principle, rejects reality, and mutates the meaning of the individual from one who is protected by law, to one who is subject to every whim from an elected legislature; up to and including, being guilty until proven innocent.
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