The Public Interest

The Perils of Legal Positivism

Hadley Arkes

Fall 1990

THE PHILOSOPHER Thomas Reid once offered the rudimentary lesson that the enterprise of judging implied a standard of judgment, a standard that could not be supplied by “feeling” or intuition. To say that “the man’s conduct gave me a disagreeable feeling” is not the same as saying that “the man acted unworthily, that his conduct ought to be condemned.” What we report about the state of our feelings cannot bear on the question of whether a man’s conduct could be regarded as wrong or unworthy by anyone else, even by people who do not share our feelings. If this were not the case, there would be no sense attaching to moral and legal judgments—judgments about the things that are right or wrong, just or unjust—and there would be no plausible function for a “judge.” As Reid observed wryly, the person who filled that office “ought to be called a feeler.”

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