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Published online by Cambridge University Press: 09 June 2015
Although Positivism and Natural Law theories seem to be mutually exclusive theories regarding the law, one might be able to salvage the attractive features of both theories by confirming each theory to a different area of judicial life. The most promising line of demarcation is to confine Positivism to theories of validity, and to confine Natural Law to theories of adjudication. This strategy has been very ably outlined in a paper by David Brink, which I shall use as the springboard for this essay.
I owe thanks to Carola Mone and Richard Bronaugh for Ihe helpful comments on earlier versions of this work.
1. The strategy offers itself as a plausible reconstruction of some significant parts of Ronald Dworkin’s work. It is also a strategy I have encountered several times among graduate students.
2. David Brink, ,“Legal Positivism and Natural law Reconsidered”(1985),6 Monisl 364.Google Scholar
3. Again, this is a matter, I think, of the theory of validity determining the scope of a legal system and some subset of laws within the system. The scope of an individual law is a problem left to the theory of legal reasoning, which is properly part of the theory of adjudication.
4. It is worth noting that in the present context the theory of adjudication has an uncertain connection to the debates over the nature of legal reasoning or the nature of judicial reasoning. As delimited by Brink, that debate (among, e.g., MacCormick, Levi, Wasserstrom) is not part of the theory of adjudication. See Neil MacCormick, ,Legal Reasoning and Legal Theory(Oxford:Oxford University Press,1978;Google Scholar Levi, Edward S. An Introduction to Legal Reasoning(Chicago:University of Chicago Press,1948;Google Scholar Wasserstrom, Richard The Judicial Decision(Stanford, CA:Standford University Press,1961.Google Scholar
5. More precisely, it is a part of the law in only some jurisdictions. It is, e.g., a part of the California Civil Code, if it is uncontroversially part of the law of New York, then the criminal forfeiture statutes would have been otiose. I cannot see that they were. The same may be said of federal law. Principles of interpretation need not, but may , be part of the law. The California Civil Code, for example, contains a number of principles of interpretation. (E.g., §3523: “For every wrong there is a remedy’” and §3531: “The law never requires impossibilities”.) The point is that not all that judges write or say, nor all that they rely on in making decisions, is part of the law.
6. Brink supra n. 2 at 367.
7. Brink id. at 368.
8. Brink id. at 369.
9. Brink id. at 369.
10. Brink’s discussion plainly relies on a clear account of “justiciable controversy”. This seems to mean that the theory of validity, by which Brink determines justiciable controversies, provides the criteria for determining the outcome of the case. The theory of validity then determines everything there is for a theory of law to determine about the law. I discuss this below. Additionally, the idea that it is in anyway easy to determine what a justiciable case is, is surprising. There is a large set of very difficult and important problems buried in the phrase “justiciable case”. To name just one, rules of standing are hardly mechanical.
11. Valid law is determined by the theory of validity.
12. The view rejected involves a general claim of normative pre–emption. It should not be confused with the claim that within the law non–legal norms yield to legal norms. The narrower claim is a plausible implication of legal authority.
13. Brink agrees. See Brink supra n. 2 at 364, 365.
14. The prohibition of ‘cruel and unusual punishment’ (Eighth Amendment) on its face invokes moral concepts. Cruelty is a moral concept in just the way kindness is. The complexity or ‘thickness’as it is sometimes termed, of a concept is not reason to doubt its status as a moral concept. Along a somewhat different dimension, the Due Process Clause of the Fourteenth Amendment also directs interpreters to moral and political analyses. The point is not that these are ‘purely’ moral concepts, concepts whose explication proceeds with no reference to extra-moral theory. Rather, whatever other factors are necessary to their explication (e.g., history), moral theory is both necessary and central to the explicatory effort.
15. Brink supra n. 2 at 364, 369.
16. Brink id. at 377.
17. Brink id. at 377–381.