Expanding Legal Positivism
The standard party line of the legal positivists goes that laws are created through social behavior and, while in some distant sense express a normative moral will of the people, don’t latch on to any transcendental virtues. By examining the work of Jurgen Habermas and Axel Honneth I conclude that a legal positivist must also recognize the positivistic creation of legal persons.
Habermas articulates a theory of communication founded on Mead’s sociology of language and Wittgenstein’s theory of rule adherence. Together, these theories lay the groundwork for the positivists’ program, inasmuch as intentionality allows for language, and language allows for rules.
Following Mead, an individual’s speech acts are only self-understood as an anticipation of another’s reaction. Language, therefore, is the intuitive internalization of a semantic understanding of oneself as bringing about actions from another. Social relations, then, result from both participants in a conversation appreciating linguistic behavior as laced with action-inducing, and therefore communicative intent.
Rule creation and adherence is the result of the argumentative relationship between two rule-competent interlocutors. Following Wittgenstein, as all communication is rooted in expectation of another’s response, intersubjective agreement over whether the rule was followed in a given circumstance is dependent on the degree to which each observer feels sufficiently certain that their conception of the rule will be followed in similar circumstances.
The structure of the law is essentially founded on, and has evolved through the invocation of, Wittgensteinian rule controversy. Once the governmental power structures lent authority to rules sufficiently agreed upon, the body of common law as we are faced with today was able to develop. These rules of common, statutory and constitutional law have created fundamental rights for all persons. The universal application of these rights to all individuals have created, in the social context, universally recognizable legal persons operating behind all interaction.
From the positivist proposition the law is created by persons I have concluded that one aspect of the person has been created by the law.