'The British Tradition of Legal Positivism' by Gerald J. Postema in Torben Spaak and Patricia Mindus (eds)
A Companion to Legal Positivism (Cambridge University Press, forthcoming)
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This essay traces a thematic thread through broadly Anglophone legal philosophy since the seventeenth century. Ownership of the title “positivism” is contested in contemporary Anglophone jurisprudence. If we to take the core theses embraced by contemporary legal positivists to identify the key figures in their tradition the story would be very brief, starting, perhaps, with Hart. Hence, rather than tracing a line of development of a coherent jurisprudential tradition, this essay sketches in broad outlines the transformation of Anglophone legal philosophy since Hobbes. However, it begins with a brief discussion of the headwaters of Anglophone positivist tradition in the “thetic” tradition of legal theory in late medieval jurisprudence and in the practice and theory of English common law and ends with a discussion of Salmond and other twentieth-century jurists who paved the way for Hart’s contemporary version of legal positivism.
Postema's 'Trust, Distrust, and the Rule of Law' in Paul B. Miller and Matthew Harding (eds.)
Fiduciaries and Trust: Ethics, Politics, Economics and Law (Cambridge University Press, forthcoming)
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The rule of law is about the law’s ruling. Law rules when it provides protection and recourse against the arbitrary exercise of power through the distinctive instrumentalities, powers and capacities of law; but law can rule in a political community only when its members, official and lay members alike, take responsibility for holding each other accountable under the law. An ethos of fidelity is fundamental to the vitality of the rule of law. However, it is often argued that a culture of accountability generates a culture of suspicion and distrust. Accountability, they say, drives out trust. The demand for accountability stems from and publicly expresses distrust. But, then, if accountability is at the heart of the rule of law, and distrust is the condition and consequence of accountability, we cannot look to the rule of law to underwrite a robust program of controlling the exercise of ruling power. This the “trust challenge” to the rule of law. In this paper, I argue that the trust challenge can be met, that accountability does not depend on or express distrust. On the contrary, I argue, accountability is a key component of trust-supporting moral and social relationships. Fidelity and trust are compatible and mutually supporting.
