Piotr Bystranowski (Jagiellonian University), Ivar Hannikainen (University of Granada), and Raff Donelson (Chicago-Kent College of Law) have posted Quiet in the Face of Wrong? An Empirical Look at Legal Positivism and the Quietist Hypothesis on SSRN. Here is the abstract:
Most debates surrounding legal positivism and its associated separability thesis concern the truth of these claims. As such, the central question has been whether there are good epistemic grounds for believing legal positivism. Recently, some jurisprudence scholars — those of the so-called pragmatist school — have also debated whether there are good practical grounds for accepting positivism. Liam Murphy, for instance, has suggested that we should accept positivism because failing to do so will incline us toward quietism, a problematic acquiescence in the face of unjust political regimes. Juan Carlos Bayón, a fellow pragmatist, is doubtful that accepting legal positivism will have this effect. This difference of opinion is ultimately empirical, and thus it represents an opportunity to employ the tools of experimental jurisprudence. This chapter reports the results of a within-subjects vignette-based experiment undertaken to determine whether people display quietist tendencies, and whether legal positivism attenuates the effect or not. The results show that people are indeed quietist, weakening their disapproval of immoral acts when informed they are legal. As Bayón predicted, endorsing legal positivism has no apparent effect on this tendency. Thus, our results cast doubt on the claim that positivism is advantageous on pragmatic grounds.
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