Note to Jeffrey Kaplan – USC;
Jeffrey – I doubt few people, whether in the audience or even in the discipline, understand how well you communicate this subject.
We should note that these theorists: Bentham, Austin, Rez, Kelsen, Hart, Dworkin, and Rawls all justify (make excuses) for positive law (commands). While Blackstone Hayek, Epstein, and Scalia are all making scientific explanations of the law. And does the audience know the difference between the justificationary (sophistry) and the scientific (operational)?
It’s that the scientific explanation (European) forces the population to use the legislature to ADAPT, and the law and court limit the legislature and thereby the people to ADAPTATION rather than accommodation (command).
This is the difference between command and law: command (justification) is cumulatively devolutionary, and law (science) is cumulatively evolutionary.
In this context, we see why western states remained small and never fell to empire as did the rest of the world into civilization states: the pressure to continuously evolve by continuous adversarial competition forcing continuous personal, social, and political adaptation. And legal positivism has been the reason for the collapse of western civilization in the industrial and especially postwar age: we are no longer forcing the population to adapt, but finding excuses for maladaptation and devolution.