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Legal Systems, Normative Systems, and the Paradoxes of Positivism1

Published online by Cambridge University Press:  09 June 2015

Philip Soper
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Philosophy harbors famous divides: utilitarians confront Kantians; communitarians oppose libertarians; and, in legal theory, natural law theorists debate positivists. Explorations into these divides typically proceed with one of three goals in mind. First, one may aim for a position on one side, advancing arguments that reveal new strengths in the position or expose new weaknesses in the opposing camp. (One camp is better.) Second, one may try to bridge the gap by showing that apparently opposed positions share unsuspected connections that reveal them to be links in a common enterprise. (Both camps occupy the same ground—there is no divide.) Finally, relying in part on the fact that these debates seem interminable, one may argue that the dispute is meaningless—a reflection of some misguided theoretical or linguistic assumption that, once exposed, reveals the entire enterprise to have been so much wasted energy. (There is no ground here for either side to camp—move on to something else.)

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Critical Notice
Information
Canadian Journal of Law & Jurisprudence , Volume 8 , Issue 2 , July 1995 , pp. 363 - 377
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 1995

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References

1. This notice reviews Shiner, Roger Norm and Nature: The Movements of Legal Thought (Oxford: Clarendon Press, 1992; Pp. 14 + 348; $89.50 (Cdn); ISBN 0-19-825719-8). [Hereinafter parenthetically referred to by page number in the text.]CrossRefGoogle Scholar

2. Ronald Dworkin and H.L.A. Hart are the best known modern defenders, respectively, of natural law and positivism. For examples of the attempt at synthesis,see Gavison, R. “Natural Law, Positivism, and the Limits of Jurisprudence: A Modern Round” (1982) 91 Yale LJ. 1250 CrossRefGoogle Scholar (reviewing Raz, The Authority of Law and Finnis, Natural Law and Natural Rights) (“these apparently contradictory schools of thought both can and must be integrated.... Rather than rival theories of law, positivism and natural law are…complementary…”). For a more recent turn toward synthesis by an otherwise well-known positivist, see N. MacCormick, “Natural Law and the Separation of Law and Morals” in George, R. ed., Natural Law Theory (Oxford: Clarendon Press, 1992) at 130 Google Scholar (“I for one regard the issue of mutual opposition as now closed and unfruitful. There are elements from works in both schools which any sound theory of law has to embrace.”). For the suggestion that the debate is meaningless, see G. Williams, “The Controversy Concerning the Word ‘Law,’” in Laslett, Peter ed., Philosophy, Politics,and Society, 1st ser. (Oxford: Oxford University Press, 1967) at 134.Google Scholar

3. “The seven are: law as a reason for action; the authority of law; the point of view of legal thought; the acceptance of law; judicial discretion and legal principle; legal interpretation and the semantics for propositions of law; law and the common good” (13).

4. Fuller, L. The Law in Quest of Itself (Boston: Beacon Press, 1940) at 2.Google Scholar

5. See, e.g., Soper, “Legal Theory and the Claim of Authority” (1989) 18 Phil. & Publ. Affairs 209.Google Scholar (“The general thesis I shall defend is that the standard claim of authority within legal systems is inconsistent with the basic tenet of positivism.... Put another way, if positivism correctly completes its project of depicting the normative claims that officials make for law, then the model that emerges will be one in which the “essence” of positivism (the denial of a necessary connection between law and morality) is incompatible with the “essence” of law (a belief in just such a connection)”); Soper, “Making Sense of Modem Jurisprudence: The Paradox of Positivism and the Challenge for Natural Law” (1988) 22 Creighton L. Rev. 67 at 85.Google Scholar (“the problem is that even if positivism is true, it cannot be believed to be true. Insiders must act asif positivism is false, i.e., they must believe that there is a connection between the sanctions they impose and their ability to justify them, just because it is the law, even though positivism claims that this belief about the connection between law and morality is false.”); Soper, A Theory of Law (Cambridge, MA: Harvard University Press, 1984) at 46.CrossRefGoogle Scholar (“The claim that an adequate model of law must connote the idea of obligation tends to be followed either by no description of obligation at all, as in Kelsen, or by a description of the normative attitude toward legal rules that conflicts with the description of the attitude toward rules of obligation, as in Hart”).

6. Shiner also discusses Hart’s theory, repeating well-known and often-made criticisms that Hart’s concept of “acceptance” is too weak to capture the idea of obligation he set out to model.

7. The three-part pattern is drawn from work by Butler, Douglas “Character-traits in explanation”(1988) 49 Phil, and Phenom. Research 215.CrossRefGoogle Scholar

8. For a sample of the debate, compare Moore, “Authority, Law, and Razian Reasons” (1989) 62 S. Cal. L. Rev. 829,Google Scholar and Schauer, F. Playing by the Rules (Oxford: Clarendon Press, 1991), at 88–93,Google Scholar with Raz, “Facing Up” (1989) 62 S. Cal. L. Rev. 1153.Google Scholar

9. Occasionally, Shiner seems aware of this point: he admits that one of the arguments for exclusionary reasons “is neutral as between positivism and natural law theory” (112); but he seems unaware of how much such a confession affects his argument for anti-positivism.

10. See Soper, A Theory of Law, supra note 5 at 55.Google Scholar

11. It was this apparent contradiction in much of the positivistliterature on the normative aspect of law that led me, also, to make the same argument that Shiner is making, see note 5, supra. As the text indicates, I now think that one must be careful to make the best case for positivism before declaring that it is contradictory, or that it leads to anti-positivism. The best case for positivism, in my view, is not self-defeating, though it may be wrong.

12. I develop this argument, that law does not make the strong claim to authority that many have assumed, in more detail in “Law’s Normative Claims” in George, R. ed., The Autonomy of Law (Oxford: Oxford University Press, 1995) (forthcoming).Google Scholar

13. By calling the claim “weak,” I do not meanto characterize the strength of the underlying belief, but only to distinguish content claims (weak) from content-independent claims (strong). Religious persons may have strong content-based beliefs, but as long as the belief is not about the concept of religion itself, I call it “weak” because it poses less of a problem for external description. A legal official, in contrast, may have a very mild belief that “law” entails “obligation,” regardless of content. I call this belief “strong,” not because of the strength with which it is held, but because it presents a problem for any purported account of the concept of law that is inconsistent with the official’s belief.

14. See Raz, supra note 2 at 153; MacCormick, supra note 2 at 32; Lyons, Comment, “The Normativityof Law” in Gavison, R. , ed., Issues in Contemporary Legal Philosophy (Oxford: Clarendon Press, 1987) at 123.Google Scholar

15. The standard examples, used by Raz, are of the Catholic expert on Rabbinical law advising his Jewish friend, see Raz, supra note 2 at 156, and the non-vegetarian, advising his vegetarian friend: “You should not eat this dish. It contains meat,” see Raz, Practical Reason and Norms (London: Hutchinson & Co., 1975) at 175–76.Google Scholar

16. Raz does insist that the detached statement is a kind of normative statement “from a point of view,” and not just a conditional statement, or a hypothetical. See, Raz, supra note 2 at 157; Practical Reason and Norms at 175. But it is difficult to see how anything is lost if the statement is simply regarded as a hypothetical. Raz’s insistence to the contrary explains Shiner’ spuzzlement (although Shiner’s reliance on an exposition of Austin and the idea of illocutionary force to make his point does not seem to help so much as it obscures). In any event, the conclusion that follows from Shiner’s argument is only that one should not view the “detached” legal statement as itself normative, but only a description of another’s norms. As such, it is still an advance over the classical model of positivism, which described law as a coercive threat, not as a norm at all.

17. For a somewhat different critique of Shiner’s treatment of the detached legal statement—a critique that seems more sympathetic to Raz’s own views—see the piece in this issue by Culver, “Shiner’s Attack on ‘Detached Legal Statements’: A Defense of Raz”.

18. For further elaboration of this view, see “Law’s Normative Claims”, supra note 12.

19. 19. Whether one characterizes the law’s claim as a “right” to coerce, or simply a claim of moral “permission” to coerce is unimportant: both are normative claims. Whichever formulation is used, the claim will ordinarily be coupled with a claim of non-culpability for good faith “errors” in the imposition of sanctions (“errors” that occur because the content of a law is subsequently determined to have been unjust or wrong, or because the defendant is later proved to have been innocent, despite the good faith use of defensible procedures for determining guilt and innocence).

20. The Nuremberg principles provide some support for this viewof law: normal defenses based on the claim that “it was the law” are lost when the law is too unjust. Similarly, the State’s denial of culpability is invalid when lawsare so outrageous that noone could in good faith defend their enactment and enforcement.

21. Shiner actually entitles one of the book’s sections, “Shiner’s Theory of Law.” See ch. 13, sec. 5, page 323.