Choosing a legal theory on moral grounds

Social Philosophy and Policy

Volumn 4, Issue 1, 1986, Pages 31-48

  Soper, Philip ^a  

^a UNIVERSITY OF MICHIGAN   (United States)

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EID: 84971914934     PISSN: 02650525     EISSN: 14716437     Source Type: Journal    
DOI: 10.1017/S026505250000042X     Document Type: Article

References (28)

1. See Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593 (1958).
2. Fuller, Positivism and Fidelity to Law — a Reply to Professor Hart, 71 Harv. L. Rev. 630 (1958).
3. The debate continued with the subsequent publication of Hart's influential book, The Concept of Law (1961), and Fuller's The Morality of Law (1964, rev. ed. 1969). For Fuller's own description of the various “rounds” in this exchange, see the revised edition of the latter at 188 (“A Reply to Critics”).
4. See MacCormick, A Moralistic Case for A-Moralistic Law, 20 Valparaiso L. Rev. 1, 9–10, passim.
5. H. L. A. Hart (1981), at 159–62. MacCormick's precise argument, which differs somewhat from the above characterization, is quoted below.
6. To be sure, Hart did suggest that these moral issues would be clarified by keeping law and morality separate. But that claim falls short of the new moral arguments being advanced on behalf of positivism which predict not just moral confusion, but actual immoral conduct (an undermining of the “sovereignty of conscience”), as the consequence of failing to preserve the distinction. See MacCormick, A Case for A-Moralistic Law, at 10.
7. N. MacCormick, A Case for A-Moralistic Law, at 10–11. MacCormick previously advanced this view as a tentative interpretation of Hart's own position, see id.
8. H. L. A. Hart, at 160 (referring to Hart, Concept of Law, at 206). But as the text notes, Hart's arguments were always primarily conceptual, rather than moral. It is not without interest that someone like MacCormick who, with some minor variations, carries on in the positivist tradition of Hart, finds it necessary now to turn to normative arguments to defend that tradition. The discomfort that leads to this turn of events may be due to the inability of the positivist to connect law conceptually with the normative implication that “law” justifies coercion.
9. Compare P. Soper, A Theory of Law (1984).
10. MacCormick, H. L. A. Hart, at 162.
11. MacCormick, H. L. A. Hart, at 161. MacCormick makes this point, apparently not to qualify the moral argument for positivism which he accepts, id., at 162, but as a criticism of Hart's failure to recognize that law itself is “in the sense of ‘positive morality’ a moral order.” Id., 160.
12. See S. I. Shuman, Legal Positivism (1963), at 204–209. For criticism of the claim, see.
13. J. Stone, Human Law and Human Justice 253–54 (1965). Professor Stone's discussion of this issue has been valuable to my own thinking and may explain why I share his similarly skeptical conclusions about the attempt to resolve this debate on moral grounds.
14. See Hart, Positivism, at 617–618.
15. See Stone, Human Law, at 255.
16. Fuller's argument relied in part on the example of the German philosopher Radbruch who appeared to undergo a conversion from positivism to natural law as a result of the Nazi experience. But attempts to understand exactly how Radbruch thought this conversion was connected to legal positivism confront a major problem. Radbruch's most significant conversion seems to have taken place within moral theory. Prior to the conversion, Radbruch's ethical views seemed either highly relativistic (there is no objective way to test the morality of law) or else they gave overwhelming weight to the legal value of certainty over the demands of justice. See generally, Stone, Human Law, at 232–262. It is easy to understand why anyone holding such views might decide such a moral theory was inadequate after witnessing the horrors of Nazism. But there is no explanation here for why this change in moral theory is connected to a change in legal theory. Confusion over the significance of Radbruch's conversion may be in part a reflection of the failure to distinguish between natural law as a moral theory and natural law as a legal theory. See Soper, Legal Theory and the Problem of Definition, 50 Chi. L. Rev. 1170 (1983).
17. Fuller, Positivism, at 637.
18. For further discussion of the connection between the concept of a court and of a legal system, and of the costs involved in dispensing with courts as the primary justificatory organ, see Soper, A Theory of Law, at 113.
19. Compare Dworkin, Taking Rights Seriously (1977), at 345, with.
20. Soper, A Theory of Law, at 181 n. 3.
21. Cover, Justice Accused (1975).
22. See Dworkin, The Lam of the Slave-Catchers, Times Literary Supplement, Dec. 5,1975, p. 1437.
23. (review of R. Cover, Justice Accused (1975)).
24. Serious doubts about this part of Dworkin's claim are raised in Greenawalt, Policy, Rights, and Judicial Decision, 11 Ga. L. Rev. 993, 1050–51 (1977).
25. This claim is defended more fully in Soper, A Theory of Law, at 115–117, 129–30.
26. See Morris, Verbal Disputes and the Legal Philosophy of John Austin, 7 U.C.L.A. L. Rev. 27, 29–31 (1959).
27. See J. Stone, Human Law, at 255.
28. See MacCormick, A Case for A-Moralistic Law, at 23, 39–40. These passages make clear that even MacCormick is determined to retain some conceptual connection between the idea of legal obligation and a practical moral conclusion — a connection that we cannot simply “choose” to give up, 26.