Judge Napolitano on "Positivism" in the law

For the past seven years, I have written a number of columns and papers on law and especially federal criminal law. (Candice E. Jackson, an attorney on the West Coast, often has been a co-author, and a great writing partner she is!) I wrote more than 60 articles on the infamous Duke Lacrosse Case in which the prosecutor, Michael B. Nifong, pushed on with charges that he had to have known were false.

Unfortunately, there are numerous "Nifongs" in the federal system, and I am currently working on an article that outlines some of the more egregious things happening in the federal system. The larger problem here is what Judge Napolitano calls "positivism," which he defines in the following way:

Positivism teaches that the law is whatever the lawgiver says it is, providing the rule is written down. Under positivism, so long as the legislature in a democracy was validly elected and followed its own rules in enacting a law, the law is valid and enforceable no matter what it says.

This is as opposed to "natural law," which Vice-President Joe Biden condemned during the 1991 hearings for the nomination of Clarence Thomas to the U.S. Supreme Court. Judge Napolitano writes this about "natural law":

Natural law teaches that our rights come from our humanity. Since we are created by God in His image and likeness, and since He is perfectly free—or, if you prefer, since we are creatures of nature born biologically dependent but morally free—freedom is our birthright. Liberty comes from our humanity, not from an outside source such as the government.

This is an article worth reading, for it outlines why the law has moved in the way that it has over the last hundred years or so, and especially since the Progressive Era of the late 19th and early 20th centuries.