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Published online by Cambridge University Press: 20 July 2015
In Legality, Scott Shapiro – a leading legal positivist – analyses the problem of a wicked legal system in a way that brings him close to natural law positions. For he argues that a wicked legal system is botched as a legal system and I show that such an argument entails a prior argument that there is some set of standards or criteria internal to law which are both moral and legal. As a result, the more successful a legal order is legally speaking, the better the moral quality of its law, and the more it is a failure morally speaking, the worse the legal quality of its law. It is such moral features of law that Shapiro concedes make it plausible to account for law’s claim to justified authority over its subjects. However, Shapiro cannot, as a legal positivist, accept this entailment. His book thus brings to the surface and illuminates a central dilemma for legal positivism. If legal positivists wish to account for the authority of law they have to abandon legal positivism’s denial that law has such moral features. If they do not, they should revive a form of legal positivism that specifically abjures any claim to account for law’s normative nature.
I thank Lisa Austin, Arthur Ripstein and Hamish Stewart for comments on a draft, Sari Kisilevsky and Martin Stone for the invitation to the Roundtable on Scott Shapiro's book which they organized at Cardozo Law School, and all the participants in the discussions of that day, especially Scott for his gracious and helpful responses to a day of criticism.
* Legality by Shapiro, Scott (Cambridge, MA: Harvard University Press, 2011) [L].Google Scholar
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5. L at ch 1.
6. L at 390-91, referring to Finnis, John, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980) at ch 1.Google Scholar
7. Also see L at 185.
8. These are set out in detail in Fuller, Lon, The Morality of Law (New Haven, CT: Yale University Press, 1969).Google Scholar
9. L at 394.
10. Ibid at 213-14.
11. Raz, Joseph, ‘The Rule of Law and its Virtue’ in The Authority of Law (Oxford: Clarendon Press, 1983) 210 at 225.Google Scholar
12. Ibid.
13. Ibid.
14. Ibid at 211.
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19. See Dyzenhaus, supra note 17, especially ch 7.
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22. Matters become more complicated if the judge is under a legal duty to take legally incorporated moral considerations into account. However, exclusive legal positivists will regard the answers determined by such considerations to be determined by moral theory, and thus by definition the resolution of such issues falls within the penumbra. Inclusive legal positivism, the position Hart was to endorse in the ‘Postscript’, supra note 4 at 238–76, 250–54, supposes that the answers determined by such considerations should be regarded as fully determined by law. This move introduces into legal positivism not complexity, in my view, but confusion.
23. Indeed, at this point Hart does exactly what he accused natural lawyers of doing when, on his understanding, they advocate a ‘narrower concept’ of law, one that excludes ‘morally offensive rules’: Hart, supra note 4 at 209-12. For he consigns the problem of how to decide hard cases to a discipline different from legal philosophy, presumably a political theory of how judges should decide such cases.
24. Here he is summarizing pages 350-52.
25. See, for example, L at 142-43.
26. Joseph Raz, ‘Authority, Law, and Morality’ in Raz, supra note 16 beginning at 194.
27. For a more elaborate discussion, see Dyzenhaus, supra note 17 at ch 9.
28. See Waldron, Jeremy, ‘The Concept and the Rule of Law’ (2008) 43 Ga L Rev 1 Google Scholar for insightful exploration of this idea.
29. Ibid at 7.
30. Here the caveat is required that Fuller did not name the principle of equality before the law as one of the principles of the internal morality of law.
31. See the neglected chapter 4, ‘The Substantive Aims of Law’ in Fuller, supra note 8.
32. Hobbes, for example, rejected both of the views Shapiro attributes to him in order to launch the argument of the second chapter; see L at 35-36.
33. For a fuller version, see Dyzenhaus, supra note 17 at ch 8. The vocabulary I use here differs in some respects and follows my more recent work on Hobbes, , ‘Hobbes on the Authority of Law’ in Dyzenhaus, David & Poole, Thomas, eds, Hobbes and the Law (Cambridge: Cambridge University Press, forthcoming).Google Scholar
34. I adapt here the illuminating argument in Winston, Kenneth, ‘Introduction’ in Winston, K, ed, The Principles of Social Order: Selected Essays of Lon L Fuller (Oxford: Hart, 2001) 25 at 36-37.Google Scholar
35. See Dyzenhaus, David, ‘Austin, Hobbes, and Dicey’ (2011) 24 Can JL & Jur 411.Google Scholar
36. See Vinx, Lars, Hans Kelsen’s Pure Theory of Law: Legality and Legitimacy (Oxford: Oxford University Press, 2007).CrossRefGoogle Scholar
37. Stone, Martin, ‘Legal Positivism as an Idea about Morality’ (2011) 61(2) UTLJ 313 at 341.CrossRefGoogle Scholar
38. Ibid at 320.
39. Ibid at 329-32.
