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Positively Fabulous: Why It Is Good To Be a Legal Positivist
Published online by Cambridge University Press: 09 June 2015
Extract
‘Legal Positivism’ is a much abused term. It is often pejoratively invoked by those occupying both the natural law and critical legal studies ramparts. The former see it as a school of thought which ignores the role in law of those standards and values which have not been deliberately laid down or unintentionally evolved. Positivism, for them, fails because it is prepared to describe a legal world where moral values play no necessary part and where transcendent values may not exist at all. The latter group of critics, not too dissimilarly, see legal positivism’s doctrines as over-reliant on rules and too inclined to accept that a legal system somehow can generate a logically mandated code of answers.
In order to defend positivism it is advisable to start with an enunciation of its core precepts. With all that has been written attacking and supporting positivism though, this can be a contentious matter. So instead I shall defend one particular version of positivism, that of H.L.A. Hart. As Hart’s The Concept of Law, first published in 1961, is at worst one of the handful of great legal philosophy texts written in English this century and at best “the classic work of philosophical jurisprudence”, this preference for concentrating on the tangible and identifiable precepts of Hart over the woolly, elusive and frequently caricatured precepts of something disparagingly termed positivism has much to recommend it.
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References
1. Throughout the rest of this paper I will use the term ‘positivism’ and its cognates as a shortened name for ‘legal positivism’. This is only for convenience and as a recognition of familiar practice in the legal world; in no way is it meant to signify any acceptance of the philosophical doctrine known as ‘logical positivism’ as expounded by thinkers such as Hans Reichenbech, Rudolf Carnap and A.J. Ayer.
2. This is the view of Tony Honoré in his assessment of the life and work of H.L.A. Hart in 84 Proceedings of British Academy 295 at 312. See too R. Summers, “H.L.A. Hart’s The Concept of Law: Estimations, Reflections, and a Personal Memorial” (1995) 45 J. of Legal Ed. 587.
3. Hart gives his concept of valid law after rejecting John Austin’s theory that law consists of commands (or orders backed by threats) of a sovereign who, as it happens, is habitually obeyed.
4. An example of this would be the United States Bill of Rights which requires that judges approve of the content of a law (as measured against a set of vague and amorphous moral standards) for it to be valid. “In some systems, as in the United States, the ultimate criteria of legal validity explicitly incorporate principles of justice or substantive moral values; in other systems, as in England, where there are no formal restrictions on the competence of the supreme legislature ….” H.L.A. Hart, The Concept of Law, 2d. ed. by P. Bulloch & J. Raz (Oxford: Clarendon Press, 1994) at 204 [hereinafter ‘Hart’]. For a discussion of the divide amongst positivists between those who say a) that validity does not depend on the law’s moral content and b) that validity does not depend not the law’s moral content unless the society’s rule of recognition happens to make moral content one of the criteria of validity, see W.J. Waluchow, Inclusive Legal Positivism (Oxford: Clarendon Press, 1994). Waluchow (rightly in my view) defends b) as the proper interpretation of Hart and the more defensible alternative.
5. There are many full treatments, outlines, analyses and criticisms of Hart. For a small sample, see N. MacCormick, H.L.A. Hart (London: Edward Arnold, 1981); M. Bayles, Hart’s Legal Philosophy: An Examination (Boston: Kluwer, 1992); and R. Gavison, ed., Issues in Contemporary Legal Philosophy: The Influence ofH.LA. Hart (Oxford: Clarendon Press, 1987).
6. ‘Hart’, supra note 4 at Preface. Hart says, “My aim in this book was to provide a theory of what law is which is both general and descriptive”, ibid, at 239. Again, Hart says, “My account is descriptive in that it is morally neutral and has no justificatory aims”, ibid, at 240. (Emphasis in the original)
7. See ‘Hart’, supra note 4 at 204–05. In particular, Hart says that a judicial decision, “especially on matters of high constitutional import, often involves a choice between moral values … and here [judges] often display characteristic judicial virtues …. These virtues are: impartiality and neutrality in surveying the alternatives; consideration for the interest of all who will be affected; and a concern to deploy some acceptable general principle as a reasoned basis for decision …. In all this we have the ‘weighing’ and ‘balancing’ characteristic of the effort to do justice between competing interests. Few would deny the importance of these elements …. [Yet] we need to remember that the same principles have been honoured nearly as much in the breach as in the observance.” (Emphasis mine)
8. See ‘Hart’, supra note 4 at ch. VII, esp. at 153–54. When it comes to judicial law-making of the most fundamental constitutional rules Hart famously concluded, “Here all that succeeds is success” (ibid, at 153). On the other hand, one must remember that Hart is quite clear that rules can and do often constrain judges. It is just, “that the open texture of law leaves a vast field for a creative activity which some call legislative” (ibid, at 204). See too supra note 7.
9. ‘Hart’, supra note 4 at 123. Hart also calls this the “penumbra of uncertainty” (ibid, at 134).
10. ‘Hart’, supra note 4 at 123, 128, 133, 135 and 145 inter alia.
11. See, for example, R. Dworkin, Taking Rights Seriously (London: Duckworth, second impression with a new appendix, 1978) at 81 [hereinafter TRS).
12. See, for instance, N. MacCormick, “Reconstruction after Deconstruction: A Response to CLS” (1990) 10 Oxford J. of Legal Stud. 539 at section 3. See too, D. Kairys, “Introduction” in D. Kairys, ed., The Politics of Law, 2d. ed. (New York: Pantheon Books, 1990) 1 and E. Mensch, “The History of Mainstream Legal Thought” in D. Kairys, ed., ibid. 18.
13. J. Waldron, ‘The Irrelevance of Moral Objectivity” in R. George, ed., Natural Law Theory (Oxford: Clarendon Press, 1992) at 160.
14. Ibid. at 161.
15. The thesis of Waldron’s essay, supra note 13, is that the moral objectivist has as much reason to embrace normative positivism as has the moral sceptic.
16. Though of course the exercise of discretion—the making of political and moral decisions—by the elected legislature is perfectly acceptable, indeed ineluctable.
17. Consider Jeremy Bentham’s view that not disappointing people’s expectations (viz., by giving over-riding importance to the rectitude of a trial’s outcome and the effective implementation of the law) bolsters their sense of security and hence increases their utility. See W. Twining, Theories of Evidence: Bentham & Wigmore (London: Weidenfeld & Nicholson, 1985) at 89 for a good summary of Bentham’s views about the importance of fulfilling expectations and ensuring certainty in J.S. Mill, ed., Rationale of Judicial Evidence (London: Hunt & Clarke, 1827).
18. See ‘Hart’, supra note 4 at ch. VII, esp. section 4. See too supra note 8.
19. See text supra at footnotes 8–10 and ‘Hart’, supra note 4 at 128.
20. “[U]ncertainty at the borderline is the price to be paid for the use of general classifying terms in any form of communication concerning matters of fact.” ‘Hart’, supra note 4 at 128.
21. Hart continues, “we should not cherish, even as an ideal, the conception of [such a detailed] rule.” This is because human beings have both relative ignorance of future happenings and a relative indeterminacy of aim. “[W]e are men, not gods.” ‘Hart’, supra note 4 at 128.
22. See text at footnotes 8–10, 19–21.
23. I intentionally allude here to Hart’s assertion of a minimum content of natural law. See ‘Hart’, supra note 4 at 193–200.
24. On the effect of European law on English law, and in particular its effect on the doctrine of Parliamentary Sovereignty, see M. Akehurst, “Parliamentary Sovereignty and the Supremacy of Community Law” (1989) 60 British Year Book of International Law 351 and E. McCaffrey, “Parliamentary Sovereignty and the Primacy of European Law: A Matter of Construction?” (1991) 41 N. Ireland Legal Quart. 109 passim.
25. I make this argument at greater length in J. Allan, “Bills of Rights and Judicial Power – A liberal’s quandary” (1996) 16 Oxford J. of Legal Stud. 337.
26. For example, recent legislation in New Zealand refers to the undefined notion of ‘Treaty [of Waitangi] principles’. See for instance, The State-Owned Enterprises Act 1986, S.N.Z 1986, no. 124; The Environment Act 1986, S.N.Z. 1986, no. 127; and the Resource Management Act 1991, S.N.Z. 1991, no. 69. Continental European drafting does this regularly. See, for instance, Sir W. Dale, Legislative Drafting – A New Approach (London: Butterworths, 1977).
27. See, for example, Sir R. Cross, Statutory Interpretation, 3d. ed. by J. Bell & Sir G. Engle (London: Butterworths, 1995) at ch. 8. For a hypothetical that makes this point very well see L. Fuller, “The Case of the Speluncean Explorers” (1949) 62 Harv. L. Rev. 616, in particular the judgments of Foster and Keen.
28. For instance, Hart believed that a consequence of Dworkin’s theory of adjudication would be a pervasive element of discretion. See Hart, supra note 4 at 253.
29. H.L.A. Hart, Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983).
30. See H.L.A. Hart, Essays on Bentham (Oxford: Clarendon Press, 1982).
31. Alternatively, one might be tempted to argue that Hart takes a middling position between extremes here, just as in The Concept of Law he takes a middling position between formalism and rule-scepticism.
32. See text at footnotes 14–15.
33. Dworkin’s theory prescribes that judges, in ‘discovering’ the best interpretation of the settled law, appeal extensively to political morality. Nevertheless the judge is not mandated simply to ‘find’ what he thinks is the moral answer. The ‘best fit’ requirement explicitly constrains him—at least in some circumstances—from doing this. (Indeed it is on this basis that Dworkin can purport not to be a natural law adherent.) Hence adopting the Dworkinian approach is distinct from turning to morality. TRS, supra note 11.
34. See ‘Hart’, supra note 4 at 209ff.
35. I wish to emphasize the distinction between the two questions of i) whether the wider concept of law, which involves keeping separate law and morality, is preferable to the narrower concept, which does not and ii) whether judges should base their decisions on moral grounds when the rules leave them with discretion. Hart gives his utilitarian answer in The Concept of Law to query i). He says nothing about query ii). I am merely speculating about what Hart’s answer to ii) might have been if he had applied the same utilitarian standard he did in answering i).
36. For arguments that Hart later repudiates this line of justification, see W.J. Waluchow, Inclusive Legal Positivism (Oxford: Clarendon Press, 1994).
37. Surprisingly, given his theory of judicial interpretation, even Dworkin appears occasionally to condone judicial lying. “If the judge decides that the reasons supplied by background moral rights are so strong that he has a moral duty to do what he can to support these rights, then it may be that he must lie, because he cannot be of any help unless he is understood as saying, in his official role, that the legal rights are different from what he believes they are.” Supra note 11 at 326–27 (italics mine).
38. Recall, Hart thinks this will inevitably happen, to greater or lesser extents, in any legal system.
39. See ‘Hart’, supra note 4 at 239–44.
40. Ronald Dworkin is hard to classify. He is certainly opposed to normative positivism and its call to limit judges’ reliance on moral views. Yet he would also reject the label of prescriptive natural law adherent. This is because Dworkin says that moral scepticism (‘external scepticism’) does not affect the objective rightness of values and so he can ignore the substance of the debate between moral sceptic and moral objectivist. See R. Dworkin, Law’s Empire (Cambridge, MA: Belknap Press, 1986) at 76–86 [hereinafter LE].
41. For an excellent account of the different positions open to moral objectivists and moral sceptics, see J.L. Mackie, Ethics: Inventing Right and Wrong (Harmondsworth: Penguin, 1977) ch. 1.
42. Clearly some body or group of people have to make law, have to make choices influenced by their moral views. And this is what legislators regularly do. As Waldron notes, “legislation is almost always the exercise of moral or political judgement.” Supra note 13 at 160.
43. Ibid. at 180.
44. I assess and reject these arguments in supra note 25. See too, supra note 13 at 181 and at note 38.
45. See The Merchant of Venice, Act IV, Scene I, in particular lines 218–22.
46. For an interesting entry into this debate see G. Postema, Bentham and the Common Law Tradition (Oxford: Clarendon Press, 1986); R.M. Hare, Moral Thinking (New York: Oxford University Press, 1982); and J.L. Mackie, Persons and Values (Oxford: Clarendon Press, 1985) chs. 13, 14.
47. See supra note 40 and its accompanying text.
48. It is evidently true that because A implies B, it does not necessarily follow that B implies A. A may be a smaller sub-set of B in which case membership in B often will not include membership in A.
49. See text at footnotes 44–49.
50. See, in particular, supra note 13 at 176–84.
51. Ibid, at 170.
52. Ibid. at 176.
53. Ibid, at 177.
54. See ibid, at 178–79.
55. See ibid, at 179–80.
56. See ibid, at 180–82.
57. See text at footnotes 44–49.
58. Supra note 13 at 176.
59. Ibid, at 175.
60. See LE, supra 40 at 76–86.
61. This claim is strongly made in TRS, supra note 11. In LE, supra note 40, Dworkin appears to back somewhat away from this.
62. This question of perspective is central to Dworkin’s argument about the general irrelevance of second-order moral views, including moral scepticism, in LE, supra note 40 at 76–86. Notice how Dworkin frames his argument in the first person rather than the third person.
63. In my view, it is also the most plausible way to read Dworkin when he says that we need not worry about giving judges power to make explicitly moral decisions. The judge’s job, he thinks, is to do the best job she can to find the right answer. If she does so, then she presumably believes her answer is right. Now if that is enough to justify judges’ moral decision-making, it seems to me an implicit endorsement of c).
64. See ‘Hart’, supra note 4 at 274.
65. Supra note 13 at 163.
66. See ‘Hart’, supra note 4 at 238ff, esp. sect. 1.