In Western Civilization following the Enlightenment, there is supposed to be a connection between Man's Laws and Natural Law [Natural Law is not what people do naturally but rather do what is their "telos" to do. That is at any rate how natural law was understood by its originators the Stoics, Saadia Geon Maimonides and Aquiness]. Man's laws are at least supposed to have as a goal to come to Divine Law. This started with Saadia Geon who defined many of the laws of the Torah as Laws of Reason. The Rambam (Maimonides) took this process further. It ended up with John Locke. The attack of on this Natural Law concept was from Austin. This is what is called legal positivism.
After this introduction, we can understand Germany. Hegel was the most popular and powerful influence in Germany during the entire 1800's. His idea of the individual being an insignificant part of the State is what led Germany to a radical Legal Positivism. Sadly, this same process is happening in America. (I am trying to avoid saying that Hegel was positivist, but he sure was on the slippery slope towards it. And his thought led to disastrous consequences in the twentieth century. Despite his depth of thought, it is hard not to see all the tendencies of Nazi and Communist totalitarianism in his thought.
This does not bode well for systems based on Hegel today or Legal Positivism. (In fact, taking a glimpse of Supreme Court decisions in the U.S.A. it is hard to see any connection at all with the U.S.A. Constitution. It looks to me like pure Legal Positivism. I mean, for Bruce's sake, what does someone growing vegetables in his back yard have to do with interstate commerce? Why would the Supreme Court think they have any right to rule in such matters- except that they want to?
[Just to be clear- Hegel still sees the "Absolute" as the standard. And to him, the Absolute is rational. To to have it embodied in "The State" does not in theory equal Legal Positivism. This is because there is a prior source of authority. It could be that he would even agree that the Absolute might not be embodied automatically in all government resolutions.]
After this introduction, we can understand Germany. Hegel was the most popular and powerful influence in Germany during the entire 1800's. His idea of the individual being an insignificant part of the State is what led Germany to a radical Legal Positivism. Sadly, this same process is happening in America. (I am trying to avoid saying that Hegel was positivist, but he sure was on the slippery slope towards it. And his thought led to disastrous consequences in the twentieth century. Despite his depth of thought, it is hard not to see all the tendencies of Nazi and Communist totalitarianism in his thought.
This does not bode well for systems based on Hegel today or Legal Positivism. (In fact, taking a glimpse of Supreme Court decisions in the U.S.A. it is hard to see any connection at all with the U.S.A. Constitution. It looks to me like pure Legal Positivism. I mean, for Bruce's sake, what does someone growing vegetables in his back yard have to do with interstate commerce? Why would the Supreme Court think they have any right to rule in such matters- except that they want to?
[Just to be clear- Hegel still sees the "Absolute" as the standard. And to him, the Absolute is rational. To to have it embodied in "The State" does not in theory equal Legal Positivism. This is because there is a prior source of authority. It could be that he would even agree that the Absolute might not be embodied automatically in all government resolutions.]
