The relationship between law and morality among non positivist legal theorists

the imperative theory of law, the analytic study of legal language, 2 H.L.A. Hart, “Positivism and the Separation of Law and Morals,” in his Essays In 3 The association of this idea with Hart seems to be a confused interpretation of a thesis is a normative thesis about legislation, is not a theory of the nature of law. of justice, they have no difficulty in agreeing as to what laws exist. Their complaint is that these particular moral values of universal application to all legal sys- tems. . Central to Hart's critique of Austin's or even Bentham's theory of law . of his theory which indicates the necessary connection as between rules and values. Legal positivism is the name typically given to a theory of law that holds that necessary connection between law and morality,” which means, more necessary that morality not be a criterion of legal validity in a legal system.

According to positivism, law is a matter of what has been posited ordered, decided, practiced, tolerated, etc. Indeed, the laws of a legal system may be quite unjust, and the state may be quite illegitimate. As a result, there may be no obligation to obey them.

  • Legal positivism

Moreover, the fact that a law has been identified by a court as valid provides no guidance as to whether the court should apply it in a particular case. As John Gardner has said, legal positivism is 'normatively inert'; it is a theory of law, not a theory of legal practice, adjudication, or political obligation.

Legal positivists believe that intellectual clarity is best achieved by leaving these questions to a separate investigation. Legal positivism and legal realism[ edit ] Legal positivism should be distinguished from legal realism. The differences are both analytically and normatively important. Both systems consider that law is a human construct. Unlike the American legal realists, positivists believe that in many instances, the law provides reasonably determinate guidance to its subjects and to judges, at least in trial courts.

Niklas Luhmann asserts "We can reduce In Hart's opinion, the validity of law is a matter of the customary and collective practices of the courts. As for the moral validity of law, both positivists and realists maintain that this is a matter of moral principles. Central to the empiricism is the claim that all knowledge of fact must be validated by sense experience or be inferred from propositions derived unambiguously from sense data. Further, empiricism stands in opposition to metaphysics; for instance, Hume rejected metaphysics as mere speculation beyond what can be learnt from sense experience.

Further, law and its authority is seen as source-based; i. Thomas Hobbes and Leviathan Thomas Hobbesin his seminal work Leviathanpostulated the first clear notion of law based on the notion of sovereign power. As Hampton writes, "law is understood [by Hobbes] to depend on the sovereign's will.

No matter what a law's content, no matter how unjust it seems, if it has been commanded by the sovereign, then and only then is it law. In An Introduction to the Principles of Morals and Legislation, Bentham laid the groundwork for a theory of law as the expressed will of a sovereign.

Bentham made a sharp distinction between the following types of people: Expositors — those who explained what the law in practice was; and Censors — those who criticised the law in practice and compared it to their notions of what it ought to be. The philosophy of law, considered strictly, was to explain the real laws of the expositors, rather than the criticisms of the censors. Bentham was also noted for calling natural law "nonsense upon stilts.

Differences aside, Austin embraced Hobbes's and Bentham's conception of law as a sovereign command, whose authority is recognised by most members of a society; the authority of which is enforced by the use of sanctions, but which is not bound by any human superior.

The criterion for validity of a legal rule in such a society is that it has the warrant of the sovereign and will be enforced by the sovereign power and its agents. The three main tenets of Austin's command theory are: Austin considered the law as commands from a sovereign that are enforced by threat of sanction. In determining 'a sovereign', Austin recognised it is one whom society obeys habitually.

This sovereign can be a single person or a collective sovereign such as Parliament, with a number of individuals, with each having various authoritative powers. Austin's theory is also somewhat brief in his explanations of Constitutions, International Law, non-sanctioned rules, or law that gives rights. Insofar as non-sanctioned rules and laws that allow persons to do things, such as contract lawAustin said that failure to obey the rules does result in sanctions; however, such sanctions are in the form of "the sanction of nullity.

Whereas British legal positivists regard law as distinct from morals, their Germanic counterparts regard law as both separate from both fact and morals. The most famous proponent of Germanic legal positivism is Hans Kelsen, whose central thesis on legal positivism is unpacked by Suri Ratnapalawho writes: The key elements of Kelsen's theory are these.

Facts consist of things and events in the physical world. Facts are about what there is. Which among all these is the content of a legal duty? Might does not make right -- not even legal right -- so the philosophy of law must explain the fact that law is taken to impose obligations on its subjects. Moreover, law is a normative system: For the imperativalists, the unity of a legal system consists in the fact that all its laws are commanded by one sovereign.

For Kelsen, it consists in the fact that they are all links in one chain of authority. For example, a by-law is legally valid because it is created by a corporation lawfully exercising the powers conferred on it by the legislature, which confers those powers in a manner provided by the constitution, which was itself created in a way provided by an earlier constitution. But what about the very first constitution, historically speaking?

Nor can it be a social fact, for Kelsen maintains that the reason for the validity of a norm must always be another norm -- no ought from is. It follows, then, that a legal system must consist of norms all the way down. It bottoms in a hypothetical, transcendental norm that is the condition of the intelligibility of any and all other norms as binding.

There are many difficulties with this, not least of which is the fact that if we are willing to tolerate the basic norm as a solution it is not clear why we thought there was a problem in the first place.

One cannot say both that the basic norm is the norm presupposing which validates all inferior norms and also that an inferior norm is part of the legal system only if it is connected by a chain of validity to the basic norm. We need a way into the circle. Moreover, it draws the boundaries of legal systems incorrectly.

The Canadian Constitution of was lawfully created by an Act of the U.

Legal Positivism (Stanford Encyclopedia of Philosophy)

Parliament, and on that basis Canadian law and English law should be parts of a single legal system, rooted in one basic norm: If law cannot ultimately be grounded in force, or in law, or in a presupposed norm, on what does its authority rest? The most influential solution is now H. His solution resembles Kelsen's in its emphasis on the normative foundations of legal systems, but Hart rejects Kelsen's transcendentalist, Kantian view of authority in favour of an empirical, Weberian one. For Hart, the authority of law is social.

The ultimate criterion of validity in a legal system is neither a legal norm nor a presupposed norm, but a social rule that exists only because it is actually practiced.

Law ultimately rests on custom: It exists only because it is practiced by officials, and it is not only the recognition rule or rules that best explains their practice, it is rule to which they actually appeal in arguments about what standards they are bound to apply. Hart's account is therefore conventionalist see Marmor, and Coleman, Thus for Hart too the legal system is norms all the way down, but at its root is a social norm that has the kind of normative force that customs have.

It is an important feature of Hart's account that the rule of recognition is an official custom, and not a standard necessarily shared by the broader community.

If the imperativalists' picture of the political system was pyramidal power, Hart's is more like Weber's rational bureaucracy. Law is normally a technical enterprise, characterized by a division of labour.

Ordinary subjects' contribution to the existence of law may therefore amount to no more than passive compliance. And this division of labour is not a normatively neutral fact about law; it is politically charged, for it sets up the possibility of law becoming remote from the life of a society, a hazard to which Hart is acutely alertp.

Although Hart introduces the rule of recognition through a speculative anthropology of how it might emerge in response to certain deficiencies in a customary social order, he is not committed to the view that law is a cultural achievement. To the contrary, the idea that legal order is always a good thing, and that societies without it are deficient, is a familiar element of many anti-positivist views, beginning with Henry Maine's criticism of Austin on the ground that his theory would not apply to certain Indian villages.

The objection embraces the error it seeks to avoid. It imperialistically assumes that it is always a bad thing to lack law, and then makes a dazzling inference from ought to is: If one thinks that law is a many splendored thing, one will be tempted by a very wide concept of law, for it would seem improper to charge others with missing out. Positivism simply releases the harness.

Law is a distinctive form of political order, not a moral achievement, and whether it is necessary or even useful depends entirely on its content and context. Societies without law may be perfectly adapted to their environments, missing nothing.

A positivist account of the existence and content of law, along any of the above lines, offers a theory of the validity of law in one of the two main senses of that term see Harris, pp. Kelsen says that validity is the specific mode of existence of a norm. An invalid marriage is not a special kind of marriage having the property of invalidity; it is not a marriage at all. In this sense a valid law is one that is systemically valid in the jurisdiction -- it is part of the legal system.

This is the question that positivists answer by reference to social sources. It is distinct from the idea of validity as moral propriety, i. For the positivist, this depends on its merits. One indication that these senses differ is that one may know that a society has a legal system, and know what its laws are, without having any idea whether they are morally justified. For example, one may know that the law of ancient Athens included the punishment of ostracism without knowing whether it was justified, because one does not know enough about its effects, about the social context, and so forth.

No legal positivist argues that the systemic validity of law establishes its moral validity, i. Even Hobbes, to whom this view is sometimes ascribed, required that law actually be able to keep the peace, failing which we owe it nothing. Bentham and Austin, as utilitarians, hold that such questions always turn on the consequences and both acknowledge that disobedience is therefore sometimes fully justified.

Hart thinks that there is only a prima facie duty to obey, grounded in and thus limited by fairness -- so there is no obligation to unfair or pointless laws Hart Raz goes further still, arguing that there isn't even a prima facie duty to obey the law, not even in a just state Razpp. The peculiar accusation that positivists believe the law is always to be obeyed is without foundation. Moral Principles and the Boundaries of Law The most influential criticisms of legal positivism all flow, in one way or another, from the suspicion that it fails to give morality its due.

A theory that insists on the facticity of law seems to contribute little to our understanding that law has important functions in making human life go well, that the rule of law is a prized ideal, and that the language and practice of law is highly moralized. Accordingly, positivism's critics maintain that the most important features of law are not to be found in its source-based character, but in law's capacity to advance the common good, to secure human rights, or to govern with integrity.

It is a curious fact about anti-positivist theories that, while they all insist on the moral nature of law, without exception they take its moral nature to be something good.

The idea that law might of its very nature be morally problematic does not seem to have occurred to them. It is beyond doubt that moral and political considerations bear on legal philosophy.

As Finnis says, the reasons we have for establishing, maintaining or reforming law include moral reasons, and these reasons therefore shape our legal concepts p. This vitiates also Lon Fuller's criticisms of Hart Fuller, and Apart from some confused claims about adjudication, Fuller has two main points.

Even if moral properties were identical with, or supervened upon, these rule-of-law properties, they do so in virtue of their rule-like character, and not their law-like character.

Whatever virtues inhere in or follow from clear, consistent, prospective, and open practices can be found not only in law but in all other social practices with those features, including custom and positive morality.

And these virtues are minor: Fuller's second worry is that if law is a matter of fact, then we are without an explanation of the duty to obey. One possibility he neglects is that it doesn't.

The fact that law claims to obligate is, of course, a different matter and is susceptible to other explanations Green Yet promising creates moral obligations of performance or compensation. While Finnis and Fuller's views are thus compatible with the positivist thesis, the same cannot be said of Ronald Dworkin's important works Dworkin and Positivism's most significant critic rejects the theory on every conceivable level.

He denies that there can be any general theory of the existence and content of law; he denies that local theories of particular legal systems can identify law without recourse to its merits, and he rejects the whole institutional focus of positivism. A theory of law is for Dworkin a theory of how cases ought to be decided and it begins, not with an account of political organization, but with an abstract ideal regulating the conditions under which governments may use coercive force over their subjects.

Force must only be deployed, he claims, in accordance with principles laid down in advance. A society has a legal system only when, and to the extent that, it honors this ideal, and its law is the set of all considerations that the courts of such a society would be morally justified in applying, whether or not those considerations are determined by any source.

To identify the law of a given society we must engage in moral and political argument, for the law is whatever requirements are consistent with an interpretation of its legal practices subject to a threshold condition of fit that shows them to be best justified in light of the animating ideal.

In addition to those philosophical considerations, Dworkin invokes two features of the phenomenology of judging, as he sees it. He finds deep controversy among lawyers and judges about how important cases should be decided, and he finds diversity in the considerations that they hold relevant to deciding them.

The controversy suggests to him that law cannot rest on an official consensus, and the diversity suggests that there is no single social rule that validates all relevant reasons, moral and non-moral, for judicial decisions. Dworkin's rich and complex arguments have attracted various lines of reply from positivists.

One response denies the relevance of the phenomenological claims. Controversy is a matter of degree, and a consensus-defeating amount of it is not proved by the existence of adversarial argument in the high courts, or indeed in any courts. As important is the broad range of settled law that gives rise to few doubts and which guides social life outside the courtroom. As for the diversity argument, so far from being a refutation of positivism, this is an entailment of it.

Positivism identifies law, not with all valid reasons for decision, but only with the source-based subset of them. It is no part of the positivist claim that the rule of recognition tells us how to decide cases, or even tells us all the relevant reasons for decision.

Positivists accept that moral, political or economic considerations are properly operative in some legal decisions, just as linguistic or logical ones are. Modus ponens holds in court as much as outside, but not because it was enacted by the legislature or decided by the judges, and the fact that there is no social rule that validates both modus ponens and also the Municipalities Act is true but irrelevant.

The authority of principles of logic or morality is not something to be explained by legal philosophy; the authority of acts of Parliament must be; and accounting for the difference is a central task of the philosophy of law.

Other positivists respond differently to Dworkin's phenomenological points, accepting their relevance but modifying the theory to accommodate them. And judges may develop a settled practice of doing this whether or not it is required by any enactment; it may become customary practice in certain types of cases.

Reference to moral principles may also be implicit in the web of judge-made law, for instance in the common law principle that no one should profit from his own wrongdoing. Such moral considerations, inclusivists claim, are part of the law because the sources make it so, and thus Dworkin is right that the existence and content of law turns on its merits, and wrong only in his explanation of this fact. Legal validity depends on morality, not because of the interpretative consequences of some ideal about how the government may use force, but because that is one of the things that may be customarily recognized as an ultimate determinant of legal validity.

It is the sources that make the merits relevant. To understand and assess this response, some preliminary clarifications are needed. First, it is not plausible to hold that the merits are relevant to a judicial decision only when the sources make it so. It would be odd to think that justice is a reason for decision only because some source directs an official to decide justly. It is of the nature of justice that it properly bears on certain controversies.

In legal decisions, especially important ones, moral and political considerations are present of their own authority; they do not need sources to propel them into action. Second, the fact that there is moral language in judicial decisions does not establish the presence of moral tests for law, for sources come in various guises.

What sounds like moral reasoning in the courts is sometimes really source-based reasoning. Those are source-based matters, not moral ones. This is just one of many appeals to positive morality, i. Moreover, it is important to remember that law is dynamic and that even a decision that does apply morality itself becomes a source of law, in the first instance for the parties and possibly for others as well.

Over time, by the doctrine of precedent where it exists or through the gradual emergence of an interpretative convention where it does not, this gives a factual edge to normative terms. Bearing in mind these complications, however, there undeniably remains a great deal of moral reasoning in adjudication.

Courts are often called on to decide what would reasonable, fair, just, cruel, etc. Hart sees this as happening pre-eminently in hard cases in which, owing to the indeterminacy of legal rules or conflicts among them, judges are left with the discretion to make new law. First, discretionary judgments are not arbitrary: Second, Hart's account might wrongly be taken to suggest that there are fundamentally two kinds of cases, easy ones and hard ones, distinguished by the sorts of reasoning appropriate to each.

A more perspicuous way of putting it would be to say that there are two kinds of reasons that are operative in every case: Law application and law creation are continuous activities for, as Kelsen correctly argued, every legal decision is partly determined by law and partly underdetermined: This is a general truth about norms.

Legal Positivism

Sometimes such residual discretion is of little importance; sometimes it is central; and a shift from marginal to major can happen in a flash with changes in social or technological circumstances. It has to be said, however, that Hart himself does not consistently view legal references to morality as marking a zone of discretion.

This thought sits uneasily with other doctrines of importance to his theory. The concept of a legal rule, that is, does not include all correctly reasoned elaborations or determinations of that rule. Later, however, Hart comes to see his remark about the U. Hart's reasons for this shift are obscure Green Why then does Hart -- and even more insistently, Waluchow and Coleman -- come to regard constitutional adjudication differently?

Some of these philosophers think that constitutional law expresses the ultimate criteria of legal validity: That being so, morality sometimes determines the existence or content of law. If this is the underlying intuition, it is misleading, for the rule of recognition is not to be found in constitutions. The rule of recognition is the ultimate criterion or set of criteria of legal validity. If one knows what the constitution of a country is, one knows some of its law; but one may know what the rule of recognition is without knowing any of its laws.

You may know that acts of the Bundestag are a source of law in Germany but not be able to name or interpret a single one of them. And constitutional law is itself subject to the ultimate criteria of systemic validity. Whether a statute, decision or convention is part of a country's constitution can only be determined by applying the rule of recognition.

The provisions of the 14th Amendment to the U. Constitutional cases thus raise no philosophical issue not already present in ordinary statutory interpretation, where inclusive positivists seem content with the theory of judicial discretion.

It is, of course, open to them to adopt a unified view and treat every explicit or implicit legal reference to morality -- in cases, statutes, constitutions, and customs -- as establishing moral tests for the existence of law.

Although at that point it is unclear how their view would differ from Dworkin's. So we should consider the wider question: Exclusive positivists offer three main arguments for stopping at social sources. The first and most important is that it captures and systematizes distinctions we regularly make and that we have good reason to continue to make. We assign blame and responsibility differently when we think that a bad decision was mandated by the sources than we do when we think that it flowed from a judge's exercise of moral or political judgement.

When considering who should be appointed to the judiciary, we are concerned not only with their acumen as jurists, but also with their morality and politics--and we take different things as evidence of these traits. These are deeply entrenched distinctions, and there is no reason to abandon them. The second reason for stopping at sources is that this is demonstrably consistent with key features of law's role in practical reasoning.

The most important argument to this conclusion is due to Razpp. For a related argument see Shapiro. For criticism see Perry, Waluchow, Colemanand Himma. Although law does not necessarily have legitimate authority, it lays claim to it, and can intelligibly do so only if it is the kind of thing that could have legitimate authority. It may fail, therefore, in certain ways only, for example, by being unjust, pointless, or ineffective.

But law cannot fail to be a candidate authority, for it is constituted in that role by our political practices. According to Raz, practical authorities mediate between subjects and the ultimate reasons for which they should act. Authorities' directives should be based on such reasons, and they are justified only when compliance with the directives makes it more likely that people will comply with the underlying reasons that apply to them.

But they can do that only if is possible to know what the directives require independent of appeal to those underlying reasons.

Suppose we agree to resolve a dispute by consensus, but that after much discussion find ourselves in disagreement about whether some point is in fact part of the consensus view. It will do nothing to say that we should adopt it if it is indeed properly part of the consensus. On the other hand, we could agree to adopt it if it were endorsed by a majority vote, for we could determine the outcome of a vote without appeal to our ideas about what the consensus should be.

Social sources can play this mediating role between persons and ultimate reasons, and because the nature of law is partly determined by its role in giving practical guidance, there is a theoretical reason for stopping at source-based considerations. The third argument challenges an underlying idea of inclusive positivism, what we might call the Midas Principle.

Though he regarded this transformation as effected by a sort of tacit legislation. If sound, the Midas Principle holds in general and not only with respect to morality, as Kelsen makes clear. In a relevant case, an official can determine the content of a legal obligation only by calculating compound interest.

Does this make mathematics part of the law? A contrary indication is that it is not subject to the rules of change in a legal system -- neither courts nor legislators can repeal or amend the law of commutativity. The same holds of other social norms, including the norms of foreign legal systems. A conflict-of-laws rule may direct a Canadian judge to apply Mexican law in a Canadian case. The conflicts rule is obviously part of the Canadian legal system. But the rule of Mexican law is not, for although Canadian officials can decide whether or not to apply it, they can neither change it nor repeal it, and best explanation for its existence and content makes no reference to Canadian society or its political system.

In like manner, moral standards, logic, mathematics, principles of statistical inference, or English grammar, though all properly applied in cases, are not themselves the law, for legal organs have applicative but not creative power over them.

The inclusivist thesis is actually groping towards an important, but different, truth. Law is an open normative system Raz [], pp. There is no warrant for adopting the Midas Principle to explain how or why it does this. It may clarify the philosophical stakes in legal positivism by comparing it to a number of other theses with which it is sometimes wrongly identified, and not only by its opponents.