Legal positivism: Still descriptive and morally neutral

Oxford Journal of Legal Studies

Volumn 26, Issue 4, 2006, Pages 683-704

  Marmor, Andrei ^a  

^a NONE

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EID: 33845695477     PISSN: 01436503     EISSN: 14643820     Source Type: Journal    
DOI: 10.1093/ojls/gqi028     Document Type: Article

References (62)

1. Often the same philosophers make both types of claims. Prominent examples of the first type of normative positivism were suggested by Ronald Dworkin, Jeremy Waldron, Tom Campbell, and Neil MacCormick; the second type of claim has been put forward by Dworkin, Waldron, Michael Moore, Stephen Perry, Gerald Postema, and others. References to these works will be mentioned in appropriate places below.
2. The Legal Theory of Ethical Positivism (Dartmouth, 1996).
3. See The Concept of Law (Oxford, 1st edn, 1961) at 205-06.
4. If I understand MacCormick correctly, this is one of the main arguments he also makes in 'A Moralistic Case for A-Moralistic Law', 20 Valparaiso L Rev. 1 (1985). However, at points MacCormick seems also to endorse a version of the argument of type 3.
5. One may wonder how this view differs from Ethical Legal Positivism. I will try to explain this in section 3.
6. General Theory of Law and State (Wedberg trans., 1945) at 20-21.
7. Arguably, there are single-purpose instruments that can only be used for one particular purpose, that may be either good or bad, or perhaps neither. No pure example comes to my mind, however, an in any case, it is clear that the law is not such a case. And of course we should also bear in mind that instruments can be used for purposes other than those for which they were created.
8. One way to understand Thomist Natural Law is that it claims that the law essentially promotes the common good, and therefore the law is essentially good. (See Aquinas, Summa Theologica, Article 2, concl.) Still, there is an ambiguity here about what this 'essential' predicate denotes. As I explain below, something can be necessarily valuable instrumentally. If this is a plausible interpretation of Aquinas' thesis, it is not at odds with legal positivism.
9. It may be thought that Kelsen is a notable exception. The Basic Norm is not a social rule, Kelsen claimed, but a theoretical presupposition. But this is not quite accurate, since Kelsen acknowledges that what the Basic Norm in any give society is, depends on actual practice or, its 'efficacy', as Kelsen calls it. (e.g. General Theory of Law and State at 118).
10. Thus even if the idea of the Basic Norm is a presupposition, what the Basic Norm in any given society at any given time is, is a matter of social practice. (I have elaborated on this in my entry on Pure Theory of law, The Stanford Encyclopedia of Philosophy, http://plato.stanford.edu/entries/lawphil-theory) Also, it is not entirely clear whether Joseph Raz subscribes to this idea about social rules. As far as I know, he has not explicitly endorsed it anywhere. His sources thesis, however, is certainly compatible with it.
11. See, for example, Raz, Ethics in the Public Domain (Oxford, rev ed 1994) at 195.
12. See A. Marmor, Positive Law and Objective Values (Oxford, 2001) chs 1-2
13. and cf. J. Coleman, The Practice of Principle (Oxford, 2001).
14. For a critique of understanding the rules of recognition as conventions, see, for example, L. Green, 'The Concept of Law Revisited', 94 Michigan L Rev. 1687 (1994).
15. For my own defence of the exclusive version of legal positivism, see Positive Law and Objective Values (Oxford, 2001) ch 3.
16. See, for example, J. Gardner, 'Legal Positivism: 5 1/2 Myths', American Journal of Jurisprudence, 46 (2001), 199.
17. Why necessarily? The idea would have to be that a form of regime or de-facto authority that is completely wicked and promotes absolutely nothing of value, could not be recognized as a legal order, would simply not function as law, so to speak. I am not sure about this argument, and I certainly do not wish to defend it here. I tend to think that this is contingently true as a rough generalization, but not necessarily.
18. Legal Theory of Ethical Positivism, 69.
19. With the exception, perhaps, of John Austin.
20. Unless, of course, by 'reference to morality' one means a reliance on moral judgments and evaluations.
21. Not necessarily, though. Even when the law is clear, it may be the case that judges are not under a legal duty to apply it to the particular case at hand; they may still have the legal power to change the law.
22. John Finnis Natural Law & Natural Rights (Oxford, 1980) denies that it is accurate to ascribe this view to Thomist Natural Law. But the position is not unfamiliar, and adherents persist.
23. Robert Alexy, for instance, purports to defend such a view. See his The Argument from Injustice: A Reply to Legal Positivism (Oxford, 2003).
24. Taking Rights Seriously (Duckworth, 1977), ch 2.
25. For a more detailed account of how Dworkin sees the essential moral element in determining the legal validity of principles, see my Positive Law and Objective Values, at pp. 81-88.
26. See R. Dworkin, Law's Empire (London: Fontana, 1986).
27. See, for example, The Concept of Law (Oxford, 1st edn, 1961) at 205-06,
28. and Essays in Jurisprudence and Philosophy (Oxford, 1983) at 72-78.
29. Note that we assume that P is a set of descriptive propositions. At points, one may get the impression that MacCormick ('A Moralistic Case for A-Moralistic Law') actually makes this mistake of inferring that P from the thesis that it is morally good if everybody believes that P. But it is not always clear that he takes P to consist of descriptive propositions. In other words, one can interpret MacCormick as advancing a form of Ethical Positivism.
30. See G. Postema, Bentham and the Common Law Tradition (Oxford, 1986). Furthermore, Postema argues (at p. 331), it is not entirely clear that Bentham was sufficiently aware of the distinction between an account of law as it is and his arguments about how to make law more useful or beneficial.
31. These kind of concerns have resurfaced recently with the collapse of the Berlin Wall and the decision to prosecute former East-German guards who had 'shot to kill' escapees to the West, allegedly following the legal orders of the regime at the time.
32. See above, n 21.
33. See J. Waldron, 'Normative (or Ethical) Positivism' in J. Coleman (ed.), Hart's Postscript (Oxford, 2001) at 429.
34. See also S. Perry 'Hart's Methodological Positivism', ibid. at 311, 323ff.
35. Even in this case, however, much would depend on the exact content of the claim. As I have earlier indicated, legal positivism is compatible with the thesis that law is necessarily good.
36. Hart himself made it quite clear that such functional values are not necessarily moral or normative in the relevant sense, in his reply to Fuller's thesis about the rule of law virtues. See his Essays in Jurisprudence and Philosophy, at 349-50.
37. By this I do not mean to endorse Hart's view that the virtues of the rule of law are purely functional. In fact I have criticized this view in my 'The Rule of Law and its Limits', 23 Law and Philosophy 1 (2003).
38. Law's Empire, at 117
39. Ibid.
40. Ibid. at 114.
41. This should not be confused with a very different type of argument: Raz has argued that the law necessarily claims to be a legitimate authority, and therefore it must meet certain conditions to be the kind of thing that can make such a claim. (Ethics in the Public Domain, ch 9). Raz's argument is not an attempt to derive an is from ought.
42. Since I find the argument structurally invalid, I did not go into the details of its concrete suggestion to view the ideal of protected expectations as central to the legitimacy of law, and its possible connection with an analysis of social conventions. In my Positive Law and Objective Values, 47-48, I have tried to explain why both of these aspects of Dworkin's suggestion are seriously misguided.
43. Hart, The Concept of Law, P. A. Bulloch and J. Raz (eds) (Oxford, 2nd edn, 1994) at 240.
44. S. Perry, 'Interpretation and Methodology in Legal Theory' in A Marmor (ed.), Law and Interpretation (Oxford, 1995), 97 at 123.
45. Ibid. at 114.
46. I do not mean to deny that in certain contexts an expression of the form 'x is useful' is meant as a normative endorsement or positive appraisal. I only need to deny, as I do, that this is necessarily the case.
47. Although she does not focus on Perry's arguments, Julie Dickson has advanced a very similar line of reasoning against this methodological challenge in her Evaluation and Legal Theory (Hart Publishing, 2001).
48. Law's Empire, at 64.
49. 'Normative (or Ethical) Positivism' at 420.
50. Ibid.
51. Michael Moore also makes a similar argument in 'Hart's Concluding Scientific Postscript', 4 Legal Theory 301 (1998). At one point Waldron is unnecessarily too hard on himself: He thinks that this argument commits him to the view that 'in order to do positivist jurisprudence in the normative mode, one has to view law as a good thing' [p. 428] and he rightly wonders whether this is not too strong. But I do not see how he is committed to this strong view at all. All that the argument commits him to (as opposed to Dworkin's argument, perhaps), is to say that normative positivism must have some views about what would make law good, or bad, views that would explain why it is important to distinguish legal from other normative claims. This is not tantamount to viewing law as a good thing. Suppose that somebody thinks that law is actually a bad thing. That would give him a very good reason to strive to distinguish what law is from what it is not.
52. See, for example, J. Raz, Engaging Reason (Oxford, 1999) at 159.
53. Law's Empire, at 64.
54. A very similar point is made by Waldron, 'Normative (or Ethical) Positivism' at 425-26.
55. See, for example, Raz, Engaging Reason at 157.
56. Hart, actually, resisted this last conclusion, at least if it is understood in moral terms. Hart insisted that even 'when judges . . . make committed statements . . . it is not the case that they must necessarily believe that they are referring to a species of moral obligation'. (Essays on Bentham (Oxford, 1982) at 161.) I have some doubts about the point of this debate. If we assume, as seems plausible, that a reason for Ø-ing entails that Ø is valuable, or that Ø-ing will bring about something valuable, then committed participants must be taken to presume that the reasons for following the law are reasons that derive from some values the law promotes. I tend to think that it matters very little whether we classify these values as necessarily 'moral' or not. Morality has very fuzzy boundaries anyway.
57. Of course I could not understand Sarah's choice if I had no idea what thrillers and melodramas are, and what are the differences between them. But my understanding of Sarah's reasoning about such matters is simply not affected by my own views about the values of thrillers and melodramas, or such. My own evaluative preferences are simply not relevant here.
58. I have done that elsewhere; see my Interpretation and Legal Theory (Hart Publishing, revised 2nd edn, 2005).
59. W.B. Gallie, 'Essentially Contested Concepts', 56 Proceedings of the Aristotelian Society (1956) at 167.
60. Ibid. at 171-80.
61. See my 'The Rule of Law and Its Limits' at 5, and references there.
62. For a similar argument, claiming that law is not an essentially contested concept, see L. Green, 'The Political Content of Legal Theory', 17 Philosophy and Social Sciences 1 (1987) at 16-20.