Villey on "social contract...juridical positivism is itself, therefore, the product of the subjectivist method of discovery of justice": But let us leave these philosophies of neo-Kantian justice, which are not all that important. And now let the positivists consider the mote in their eye. Does juridical positivism (not, to tell the truth, in the version which Kelsen offers, but in the traditional form inherited from Locke or from the school of the social contract) not conceal the same vice? VILLEY (TRANS VOILLEY): EPITOME OF CLASSICAL A'ATURAL LAW 93 It is true that positivism renounces the idea of drawing from justice the content of law. We purport to leave the responsibility for its construction to the arbitrary will of the legislator, and we hope, thus, to limit the damage. And yet we feel the need to just~fy the power of the legislator, or at least the authority of laws. Our doctrine of law too is a doctrine of justice. We cannot ground the value of our positive law except by resting it on justice. But on which justice? Already the great inspirers of our theory of the sources (such as Hobbes, Locke, Rousseau) leaned towards subjectivism. Within their own conscience, they thought they found the rule, immutable and rigid, that our promises must be kept. In order to establish the authority of the positive laws of the state, all that was necessary was to add the social contract to this rule. Juridical positivism (to this day in its most ordinary form) remains an unconscious residue of the doctrine of the social contract and, beyond the social contract, this allegedly just rule according to which one must keep one's word: juridical positivism is itself, therefore, the product of the subjectivist method of discovery of justice.
https://classic.austlii.edu.au/au/journals/GriffLawRw/2000/5.pdf
Comments