Legal Positivism & Morality

The great philosopher’s debate in the 21st century — how does legal positivism and morality shape the way our system of law works? As each country rises from rags to riches, what makes positivism differ from other systems of law? Today, we see many countries taking law and transforming it based on the regional morals of the land — but does each land have different morals? A peasant child may have their hands cut off for stealing from stalls for food in one country, while on the other side of the world entirely different legal systems exist, some even abandoning the existence of morality in law.

Legal positivism, in the most basic sense, is a philosophy of law that “emphasizes the conventional nature of law—that it is socially constructed. According to legal positivism, law is synonymous with positive norms, that is, norms made by the legislator or considered as common law or case law.” (Himma) Based on this explanation, the endgame of legal positivism is so we can see bad laws that exist and change them accordingly, for good. Legal positivism came to be in the 19th century, as a side result of science; the times were surely changing. As the scientific renaissance occurred, thinkers bubbled up, and began to ask questions never before pondered – even regarding our own systems of law. LP is clearly concerned with the existence of the real, observable world, and this led to the rise of a new element in law — the rise of legislation, through a governing and/or governed body, as opposed to natural law as it always had been. 

Natural law and legal positivism generally go together when discussing philosophies of law. Both systems of law have similarities: their dual concern with the nature of authority, and sources of authority along with the limits of such authority. In a way, both are truly utilitarian. Utilitarianism is defined as “the doctrine that actions are right if they are useful or for the benefit of a majority” (Nathanson). The two systems of law are meant to benefit society, and promote good rather than harm. So we must ask — while we understand natural law because it has been around for centuries, does legal positivism express itself as an adequate theory of law? Many philosophical greats like Hobbes, Bentham, Austin, Kelsen, Hart, Dworkin and Fuller have been deliberating for years. 

In accordance with the positivist/natural law theory, positive law must reflect divine law in order to be true law. That is, worthy of obedience and capable of creating a good life for it’s subjects. Many thinkers are skeptical of how the combination of morality and law may play out. Hobbes believed in social contract theory, or law as the command of the sovereign — (a supreme ruler or monarch). Bentham was a prominent utilitarian thinker, whose basis for reforming the law and state was in order to provide the land with the “greatest happiness of the greatest number”. Austin would go on to provide the command theory of law, which according to Austin mean that law is just a set of commands from sovereign to its followers, including commands and sanctions. As Austin would say, according to him, natural and fundamental rights don’t exist, and there are no rights or law which are inherent to the human condition. It seems cruel when we think about it, but the main point of this is the realization of fear; which takes a true and evolving form in the natural world. The command theory of law would include the basic understanding that a command for the party to whom it was directed is liable under evil from the other in case he comply not with the desire — this was linked to the people via sanctions, which we even see today. Kelsen followed the footsteps of Kant and his philosophy to explain the nature of legal norms, and legal norms as a part of a Kelsen system of norms which all derived from one ‘grundnorm’. Another matter in law, oppression, was taken on by philosophical thinker Marx, who thought all major social institutions including law necessarily represent and further interests of the dominant capitalist class, and while Austin thought that the sovereign and its law may or may not be oppressive, Marx takes detail in saying that all law is necessarily oppressive by nature. The great philosopher Hart developed an advanced sociological version of positivism which was derived from social rules, to go against Austin’s system of law. 

Austin followed a classical positivist model, with rule including sanctions, but his system of law failed to account for its effectiveness in large societies — since sanctions supplement acceptance, along with the variety of laws which have no sanctions. Hart argued that law was a union of primary and secondary rules, stating “a system of legal rules comprises a combination of primary rules whose content and existence is regulated by secondary rules”. Basically, Hart challenged Austin on the basis that although laws are meant to be straightforward they are usually not as arbitrary as Austin suggests, in part because laws frequently confer power & privilege. For example, the right to free speech — in its current state, the law does not permit or prohibit free speech, but instead creates a path for an individual to speak, if he or she desires. Ultimately, Hart believed that laws were a matter of acceptance rather than obedience. In his rules of obligation Hart hints that moral and legal rules may overlap much like the way legal rights overlap without any moral basis. Under primary rule of obligation, Austin claims that citizens are bound by law, because they will feel obligated to be bound by the law — for reasons not because they are afraid of being punished, but because it is in fact the right thing to do. Under secondary obligation rules, lawmakers themselves and public officials have to accept the same rules as everyone else; and a law is valid if procedures exist to enact a law and a history of these procedures occurring is kept which gives these laws validity. This brings up an important question — if morality should be the basis of laws, whose morality is a judge to use to resolve conflict? Unlike law, morality is difficult to pinpoint, because a citizen must be able to see the difference between what they want and what is right. 

Great philosophical thinker Dworkin believed in equal rights — that all humans are owed equal rights because they are humans. Central to Dworkin’s theory of law is the disctinction between description, between interpretation, and between normativity. Description is straightforward – we can describe chairs, weathers, cars, etc. it is primarily observational. Normativity however, tells us what is right or wrong, what we should have done or what we should do. Normativity makes us ask questions like, whether we should all practice religion or become vegan. In terms of law normativity is expressed as a judgement of acts between an individual and others. Clearly this deals with an existence of non-existing affairs…so how is a judge to do what is right? By interpreting the law and theories of law in his or her own way. Interpretation is about instilling a value within an act. The act of interpreting something necessarily involves viewing it in what we regard as a sensible or normal manner. Our pursuit of interpretation will invariably result in a pursuit of morality (according to Dworkin). Dworkin’s point is law can never can be as clean cut as positivists say. Judges use non-relevant discretion in applying the law, application varies, based on non-legal stuff and morality plays a huge role in law according to Dworkin. Dworkin created a set of rules by which judging parties may begin a correct case: Firstly, we should start with the law as written, and when unambiguous, we should apply it. Second, policy considerations; policy sets a standard to be attainable, every rule has behind it a economic, and social policy goal. In this way, we aggregate goals for society. Lastly, principles, are standards that should be observed because it is a requirement of some concept of morality. In Dworkin’s example, if a man is killed for his inheritance, and the laws deal with inheritance and murder, then if you apply the rules you would get the inheritance and go to jail for murder while keeping the inheritance. This isn’t right, and Dworkin agrees that the strict rules of legal positivism make it not work because each case is unique, and according to Dworkin specific morally-shaped decisions must be made in accordance. Dworkin stated that we should embrace his set of rules, and his critique of positivism was that judges should use discretionary principles to lead to ultimately good (morally-based) decisions. According to Dworkin, discretion plays a very important role in law, and due to this we need guidelines for interpretation to see how to play out each case. Ultimately, for Dworkin, the inability of positivist theories to accommodate judicial reasoning and decisions – moral choice is the main problem. 

Another free thinker, and philosophical great, Fuller also had some critiques of positivism. Fuller thought internal morality created social order, and that rules guided behavior. As a basis, he thought of this system of law as a communication between ruler and the ruled. Fuller was more human thinker than others, and thought that each human activity was goal oriented, and built to achieve a positive end. Basically, Fuller had this idea that laws were made as a function of achieving social order by rules which we can use to orient behavior. In his case, the ruled must be capable of obeying, which in the human condition we see many times isn’t the case. To Fuller, morality was a constraint on the basis of the existence of legal systems, not individual laws. To argue Fuller, Hart denied the claim that principles of legality constitute internal morality – he says this confuses morality and efficacy. For example, poisioning isn’t moral but has efficacy. Hart thought we had to separate law and morality to aid in clear thinking.

It seems although legal positivism has all the basics of good inside, it has faced quite a lot of rejection across philosophical thinkers. There are questions that legal positivism fails to introduce — if morality isn’t guiding lawmaking, what is? How did the sovereign decide to make such laws? On a good note, legal positivism allows us to distinguish between a valid law and invalid law, but it does fail to justify the process by which a law is enacted. Positivists like Hart say that the rule that governs lawmaking is socially accepted, but what happens if the rule that governs the law is rejected? If the law is rejected – does the law remain valid? 

According to positivist theorists, it does not.

According to legal positivism judges must not only use logic, but must look at social aim of the law. Hart said, “thus law is the command of the uncommanded commanders of society- the creation of legally untrammeled will of the sovereign who is by definition outside of the law”, this further exemplifies the fact that law cannot be a command because that would imply that the person making the laws is above the laws.

A side note, in history, a philosophical great named Radbruch claimed that the Nazi’s were successful because of positivism and this is why he switched over to a natural law perspective. Hart argued Radbruch’s point by saying that it was a dictatorship and this is why everything fell apart, and not to blame positivism. “Law is Law” Hart argued — it was a positivist slogan and Radbruch claimed that this is the reason why the enormities happened during WWIIl; important to note that an evil law is still a law! 

Hart also argued Austin & Bentham’s command thesis, while they thought law was a system of commands, Hart argued this because if the law is a command then someone has to create these commands thus there is someone who is above the law. 

Kelsen says that the rules that authorize a sovereign to make a law exist in what he refers to as a “groomed norm”. A groomed norm — “a fundamental norm upon which all other norms will be based off”. How are we to see the downsides of positivism? Is there anyway to overcome the ultimate “shortcomings” of positivism? According to Dworkin, morality must be incorporated within the law and a society cannot exist if it does not share common ideas regarding morality; he believed in “public morality”. Basically he says that morality and law cannot be separate because the existence of morality is dependent on the law; and in most cases I have seen this to be true. In the end, the reason for legal positivism is so we are able to see the bad laws out there and as a result change without chaos and disorder. I agree with the great philosopher Dworkin in that legal positivism must be rejected as an adequate theory of law. An adequate theory of law, should express that it is common for people to disagree with each other because that is what makes better laws which is better for the people and society as a whole.