Consider the Fugitive Slave Laws during the antebellum period of American history. How would we expect judges of the past to decide these cases, where free states are obliged legally to send fugitive slaves back to their owners in slave states? What sort of theory of jurisprudence might we expect them to follow?
Thomas Sims was an African American who escaped from slavery and fled to
Chief Justice Shaw makes an appeal to the existing positive law, and to the principle of states’ rights in the case. Legal Positivists like John Austin would certainly have condemned Thomas Sims disobedience to the system of positive law and respected the court’s decision to uphold the acts of state in slave states like
As much as this is a decision based on Shaw’s own discretion, and level of understanding about the principles that ought to guide him in this process, Austin would reply that ‘law is law’ and as subjects in the relation between sovereign and subject, we are obliged to obey the law. The court’s decision is supported by promise or threat of injury if not obeyed. The idea that laws as such give us a reason to feel obliged (or to accept an internal point of view) is a truth so “simple and glaring” that “it seems idle to insist upon it.” For Thomas Sims to challenge the Fugitive Slave Laws is one thing, but if we insist they are, as the natural lawyer argues, not in fact laws (implying they are non-binding upon us) then we are talking “stark nonsense” and only being mischievous. If we say we “hate” the Fugitive Slave Laws, at least we are being honest, but we often say that they are not divinely-revealed laws as a way of abusing legal language.
Austin's view is very unattractive, and Ronald Dworkin's critique of legal positivism and his account of how judges decide hard cases is convincing.