November 11, 2006: Why I am not a Positivist

Once again, David Cole has written an excellent book review for The New York Review. The last time he came to my attention, he was writing about terrorism; this time the issue is the constitutional foundation of our legal system. The book under review is Not a Suicide Pact: The Constitution in a Time of National Emergency, by Richard Posner (pictured above as rendered, with at least two meanings intended, by David Levine). What is at stake is Posner's legal philosophy, which basically reduces judicial ruling to the mechanics of cost-benefit analysis.

While Cole does not mention it explicitly, this kind of positivism-with-a-vengeance actually recalls Bertrand Russell's internationalism, where Russell envisioned a single government for the entire globe that would resolve all disputes by invoking the machinery of an appropriately designed logical calculus. Cole does an excellent job of challenging this vision. For me the most compelling passage of his text is a quotation of a 1961 dissenting opinion by Justice John Marshall Harlan concerning the nature of due process:

Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court's decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment and restraint.

While the focus of Posner's book and Cole's challenge involves the relationship between the current executive and judicial branches of the Federal Government, reading about the subtleties of due process reminded of when, about five years ago, John Seely Brown enjoined me to drop everything and read Lawrence Lessig's new book, Code (dragging me to a bookstore on Maui in the process). Revisiting the index of that book, I discovered only one entry for "due process," that being in a paragraph on page 7 that reviews the protections guaranteed by the Bill of Rights. That neglect for one of the most important elements of our Constitutional process can perhaps explain the sort of position that Lessig tried to take in his book:

Government should push the architecture of the Net to facilitate its regulation, or else it will suffer what can only be described as a loss of sovereignty.

This, again, is positivism-with-a-vengeance, guided possibly by a calculus more sophisticated than one Russell could have ever imagined, but (in Harlan's language) a "formula" nonetheless. Today we may be more conscious of the judicial issues that have been arising in the way of American military adventurism. However, those issues are also likely to arise in other more mundane aspects of our lives; so we should all be aware of the cautionary arguments that Cole has articulated so excellently.