Legal Positivism: Moral Relativism Applied to the Law

Secular humanism and its penchant for moral relativism, along with misapplied Darwinism, has now become the postmodern foundation on which America’s courts and law schools are built. Constitutional and legal scholar John Eidsmoe observes: “Twentieth-century jurisprudence is based on a Darwinian worldview. Life evolves, men evolve, society evolves, and therefore laws and the constitution’s meaning evolves and changes with time.” (Footnote #5)

This new legal formulation is known as “legal positivism.” In his book, Christianity and the Constitution, John Eidsmoe reviews the writings of the Critical Legal Studies movement, a group of radical lawyers, law professors, and law students. He summarizes legal positivism with the following points:

•    There are no objective, God-given standards of law, or if there are, they are irrelevant to the modern legal system.

•    Since God is not the author of law, the author of law must be man; in other words, law is law simply because the highest human authority, the state, has said it is law and is able to back it up by force.

•    Since man and society evolve, therefore law must evolve as well.

•    Judges, through their decisions, guide the evolution of law (Note again: judges “make law”).

•    To study law, get at the original sources of law, the decisions of judges; hence most law schools today use the “case law” method of teaching law. (Footnote #6)

Another, simpler definition of legal positivism is: moral relativism applied to law. Moral relativism is the belief there is no such thing as moral absolutes—no standard of right or wrong for all
people in all places at all times. At times, moral relativism is also called, simply, pragmatism. Moral relativism is closely tied to situational ethics, the belief that individuals are free to decide for themselves what is best for them to secure the most desirable outcome in any given situation.

Legal ‘positivism’ was introduced in the 1870s when Harvard Law School Dean Christopher Columbus Langdell (1826–1906) applied Darwinian evolution to the law and to jurisprudence.

Langdell’s thought was advanced further by Dean Roscoe Pound and Supreme Court Justice Oliver Wendell Holmes Jr. Holmes argued there is no fixed moral foundation for law: “The felt necessities of the time, the prevalent moral and political theories . . . have a good deal more to do than the syllogism [legal reasoning process] in determining the rules by which men should be governed.” (Footnote #7)

Did you catch that? The “felt necessities of the time” and “prevalent moral and political theories” should be the basis of the rules by which men are governed.

Using the “felt necessities” and “prevalent theories” model, judges can allow just about anything to be legal, depending on whose feelings, morals, and political theories are chosen for reference. Guided by this dangerous thinking, we have seen countless abortions performed in America. Even the grisly partial-birth abortion procedure has passed legal muster—a practice the late Senator Daniel Patrick Moynahan called “near infanticide.”

Along with millions of babies, matters of decency have also been aborted. Current U.S. Supreme Court Justice Ruth Bader Ginsburg, while serving as an attorney for the ACLU in 1977, wrote a paper, entitled “Sex Bias in the U.S. Code,” for the U.S. Commission on Civil Rights. In it, she argued that the legal age for sexual activity should be lowered to twelve years old. (Footnote #8) If enough judges agree the age change “is a necessity” based on the perverted “moral and political theories” of Alfred Kinsey, for instance, Americans would have to accept that it would be legal for an adult to have sex with a child of age twelve. Lest you think that too crazy to happen, bear in mind that famed sex researcher Alfred Kinsey actually promoted the idea of adults having sex with children, and there are other forces pushing in similar directions. A University of Minnesota publisher produced a book that discusses the “benefits” of children having sex with adults, and the North American Man/Boy Love Association has promoted this idea for years. These are the kinds of philosophical foundations that are now in play with relativistic judges.

If you think I’m painting with too broad a brush, consider the 2003 U.S. Supreme Court ruling in Lawrence vs. Texas. The Court struck down the Texas sodomy law and, via the precedent, similar laws in several other states. The effect was to make homosexual sex legal. To come to such a ruling, the justices not only ignored the Constitution and the Founders’ intent, but went so far as to cite the law of another country in support of its decision!

In Lawrence, Justice Anthony M. Kennedy’s majority opinion cited a 1967 British Parliament vote repealing laws against homosexual acts and a 1981 European Court of Human Rights decision that those laws were in violation of the European Convention on Human Rights. (Footnote #9)

Ignoring the Constitution and looking to case law—including that of other countries—to justify what our laws don’t permit is the motive behind the case-law philosophy. Harvard’s Dean Langdell pioneered the case-law philosophy, which calls for consideration of precedents in the decisions of other judges rather than the Constitution.

John Dewey believed a strict adherence to the Constitution was an obstacle to the liberal, humanistic, and socialist changes he and many like him desired to accomplish: “The belief in political fixity, of the sanctity of some form of state consecrated by the efforts of our fathers and hallowed by tradition, is one of the stumbling-blocks in the way of orderly and directed change." (Footnote #10)

Although judges and legal scholars now refer to judges as “making law,” William Blackstone never believed judges “made law” but that they were to study the U.S. Constitution to “discover” or “apply” the law. About early leaders’ high esteem of Blackstone’s view.

Although introduced in the nineteenth century, legal positivism began to make real headway in our system when Earl Warren became chief justice of the U.S. Supreme Court. In the 1958 case, Trop vs. Dulles, Chief Justice Warren declared the Eighth Amendment of the U.S. Constitution could not have the same meaning now as it did at the time written. (The amendment reads as follows: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.”) In Trop vs. Dulles, the U.S. State Department had attempted to strip a man of his U.S. citizenship because he deserted the armed forces during World War II. But Trop’s attorneys argued it was “cruel and unusual punishment” to strip him of his citizenship. Chief Justice Warren agreed, stating “the Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Legal positivism has been racing through court decisions at an ever-increasing pace since the mid-1900s. 

The clear implication of legal positivism? Since morals and standards change over time, so does the meaning of the Constitution. Strangely, the Constitution has supposedly become much harder to understand than it once was.




5 John Eidsmoe, Christianity and the Constitution (Grand Rapids, MI: Baker Book House, 1987), 391.

6 Ibid., 394.

7 Oliver Wendell Holmes Jr., “The Law in Science-Science in Law,” Collected Legal Papers (New York: Harcourt, Brace and Company, 1920), 225.

8 Steve Brown, “Fears Grow over Academic Efforts to Normalize Pedophilia,”, July 10, 2003.

9 “Danger from Foreign Precedent,” editorial, The Washington Times, March 25, 2004.

10 John Dewey, The Public and Its Problems (New York: Henry Hold and Company, 1927), 34.