The Origin of Legal Authority
Book Review by John W. Mauck, Esq.
Law Without Authority or Limits: Kelsen’s Dilemma by Daniel Gruber addresses a question primarily for followers of Jesus and supporters of an ordered society: who is in charge, man or God? Lest one thinks the answer is simply “God,” Gruber approaches the query using a famous (some might say infamous) legal scholar, Hans Kelsen as his quarry.
Kelsen, the author of 400 books and architect of the Austrian Constitution ridiculed authority derived from the Bible or any divine source.
Thus, the sub-title “Kelsen’s Dilemma” hints at the target Kelsen embodies: “legal positivism,” the doctrine that all law is ultimately based upon the authority of human institutions, i.e. people, to define what is licit and what is illicit; what is right and what is wrong.
Because Kelsen’s teaching has largely overwhelmed the thinking of the legal and political classes in Europe and South America, Gruber first refutes Kelsen’s rejection of biblical authority by exposing Kelsen’s ignorance of scripture. One gets the feeling that his supporters were willing accomplices to the departure from scriptural authority.
As illustrated in this Swiss Supreme Court "Justice Lifts the Nations" painted by Paul Robert, Justice is personified by an imposing lady dressed in radiant white. In her right hand she lifts scales signifying judicial fairness. Her head is surrounded by light suggesting diving illumination. Twelve judges surround her, looking up to her for guidance. In her left hand she holds a sword pointing to a Bible, open and accessible to judges and litigants alike.
The battle raging in the U.S. today is between the legal positivists who stand on Kelsen’s shoulders arguing that the Constitution can be made to say, shall we say tortured to confess, whatever man says. The defenders of transcendent truth stand behind the walls of the embattled Constitution firing flaming arrows from the Declaration that “all men...are endowed by their Creator with certain inalienable rights.”
Gruber next destroys Kelsen’s logic forcing his conclusory positivism to retreat, step by step to their place of origin; raw power to coerce.
The irony of Kelsen’s life is highlighted by his flight as a Jew from Nazi Germany where Hitler had established a positivist reich unparalleled.
How fares the battle? As Law Without Authority or Limits suggests the doubters of Godly authority may have exposed their weakness. If enough positivists open their eyes to the deception fueling their attack, perhaps they will desert and help turn the battle tide. Gruber has cut off the head of the giant (1 Samuel 17:51-52), how will God’s people respond?
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