Legal Positivism: Contemporary Debates
What does contemporary legal positivism seek to tell us about the nature of law, and why might its insights be important? These two questions form the backbone of the present inquiry. In Part I below, I discuss what the term “legal positivism” might mean and which tenets about the nature of law, if any, contemporary proponents of this approach agree upon. However, perhaps the more interesting inquiry is to be found in Part II, where I consider why it might be important to focus on, and to have a clear-sighted understanding of, those particular facets of law which contemporary legal positivists wish to draw to our attention. As we shall see, legal positivism highlights only a small subset of truths regarding law’s nature, but they are truths which are vitally important for an adequate understanding of law, and which can help shape and direct many other inquiries into various aspects of its character.
I. Contemporary Legal Positivism and the Nature of Law
A. What Legal Positivism Is Not, and What It May Be
Above, I posed the question: what does contemporary legal positivism seek to tell us about the nature of law? This, however, may assume something which perhaps ought not to be assumed, namely that “legal positivism” demarcates a specific view or views about the nature of law which a particular group of legal philosophers endorse. Our approach to this issue may depend on whether we are using the term “legal positivism” to denote a broad tradition of thought such as we might discuss in the history of ideas, or whether we take it to demarcate a philosophical position committing its proponents to some distinctive proposition or set of propositions about the nature of law (for this distinction, see also Gardner 2001; Raz 2007). Used in the former sense, the term “legal positivism” is like a kind of jurisprudential “mood music”: it sets the tone for the kind of issues and topics which certain theorists find interesting or problematic, but does not denote shared commitment to a specific tenet or set of tenets about the nature of law. It is the latter sense of the term which we are interested in here. The present section of this Companion is concerned with theories of the nature of law, so we need to consider which, if any, propositions about the nature of law contemporary legal positivists endorse in common.
Various red herrings are liable to emerge in considering this question. Several of these are identified and ably disposed of by John Gardner in “Legal Positivism: 5 1/2 Myths” (2001) and, for the most part, will not be discussed again here. One myth, however, does merit special mention because of its sheer prevalence in common (mis)understandings of legal positivism and because of its liability seriously to mislead those seeking to further their understanding of that philosophical position, and of contemporary jurisprudential debate more generally.
The myth in question goes by various names, but is perhaps best captured as the “no necessary connection thesis” (Gardner 2001; Raz 2003). According to this thesis, legal positivism is committed to the view that there is no necessary connection between law and morality (for ascription of this myth to legal positivism, see e.g., Davies and Holdcroft 1991: 3). There are (at least) three problems with this thesis, and with its role in contemporary legal philosophy. The first problem is that it is false as a statement about the nature of law. There are many necessary connections between law and morality, from the seemingly obvious and perhaps less significant—such as that, necessarily, law and morality both contain norms; or that, necessarily, legal systems cannot exhibit the personal vice of jealousy—to the potentially more important (and, in some cases, more controversial), such as that, necessarily, law can be subject to moral evaluation; necessarily, law makes moral claims of its subjects (this cannot be explored here, but for an explicit defense of it, see Green 2003 and 2008); or, given the conditions of human existence, necessarily, law regulates some morally important matters in certain ways, for example, in having rules protecting human life and bodily integrity (see, e.g., Hart’s discussion of the “minimum content of natural law” in Hart 1994, ch. 9, section 2).
The second problem with the no-necessary-connection thesis is that it is rejected by many contemporary legal positivists, hence characterizing legal positivist thought by reference to it is very misleading, especially for those approaching the subject for the first time (for examples of such rejections see Gardner 2001; Green 2003 and 2008; Raz 2003, 2007 and 2009, ch. 3). The third problem is linked to the second: in addition to being a poor marker of legal positivist thought, the no-necessary-connection thesis does not help us to demarcate important differences between legal philosophical positions more generally. In particular, it does not mark well the divide between legal positivism and natural law. As is noted above, many contemporary legal positivists deny the nonecessary-connection thesis, but, clearly, so do many natural law theorists, for example John Finnis, who espouses the view that: “law is rightly conceived of as by its nature morally valuable” (Finnis 2003: 111, emphasis in original). Moreover, the type of necessary connection between law and morality that Finnis has in mind may be very different from the multifarious types of necessary connection which various of those usually classified as legal positivists wish to investigate and/or affirm. We would do well in this to remember H. L. A. Hart’s advice: “There are many different types of relation between law and morals and there is nothing which can profitably be singled out for study as the relation between them” (Hart 1994: 185). The no-necessary-connection thesis thus also obscures more than it reveals in encouraging us to think in terms of teams of theorists marching under common banners (such as that there is, or is not, a necessary connection between law and morality), which they do not in fact endorse, and which conceal many individually important issues concerning the relationship between law and morality. The better route, then, may be to focus on particular issues as regards the relationship between law and morality—such as whether and, if so, under what conditions there are moral reasons to obey the law, or whether, in virtue of its nature, law has a specific moral task to perform—and then try accurately to attribute views on those particular issues to individual legal theorists before evaluating their truth and explanatory adequacy.
Considerations such as these have led some legal philosophers to wonder whether we should abandon the term “legal positivism” and, more generally, to doubt the value of speaking in terms of broad schools of thought in jurisprudence at all: “In truth, such dichotomies [between legal positivism and natural law] are rarely revealing of any important truth” (MacCormick 2007: 278); “Perhaps it is time not to refute legal positivism, but to forget the label and consider the views of various writers within that tradition on their own terms” (Raz 2007: 35). While these are important cautionary notes to sound, there will be reason to retain the term and its (judicious) use, if, despite the points made above, we can find some propositions about the nature of law which are held in common by contemporary legal positivists, and which illuminate something important about the nature of law.
Which views about the nature of law, then, are endorsed by contemporary legal positivists responsible for such diverse and wide-ranging legal philosophical work as are Joseph Raz, Wil Waluchow, Leslie Green, John Gardner, Andrei Marmor, Jules Coleman, Scott Shapiro and Matthew Kramer? (Hugely notable by his absence from this list is, of course, H. L. A. Hart. As we are nearing two decades since Hart’s death, I hesitate to include him amongst contemporary legal positivists. However, as his work has had immeasurable influence on most if not all living legal positivists, and as it has remained the subject of many contemporary debates, I will, of course, be making reference to Hart’s work in the course of what follows.) I venture to suggest that they are all committed to certain views about the social nature of law, and, more particularly, to the social thesis as regards the existence and identification of law.
Legal positivists understand law as having a fundamentally social nature: it is a human artifact which has been socially constructed. As the term “legal positivism” itself connotes, law exists in virtue of the fact that it has been posited: because human beings, and the social institutions they create—such as legislatures, courts and legal officials—have decreed or decided or recognized or practiced or enforced or interacted in some way with a given set of norms (Gardner 2001; Green 2003). Those human social processes bring legal norms into existence, and are also the means by which they are modified and/or extinguished. More specifically, contemporary legal positivists are committed to the social thesis. They hold that the existence and content of the law is ultimately to be determined by reference to social facts, in particular by reference to law’s social sources, and not by reference to the merits of the legal norms in question. To simplify for the purposes of example: that a bill has been passed by votes in the House of Commons and the House of Lords and has received the Royal Assent—that it has emerged from that series of social facts, has those social and institutional interactions as its source and that legal material emerging from that source is recognized by legal officials in the United Kingdom as constituting valid law—is what makes it into part of the statutory law of the UK. A bill which those social facts has rendered an Act of Parliament is valid law even if it lacks merit to the point where it should never have been introduced to or supported in Parliament in the first place, or recognized or enforced by anyone, and a bill which is meritorious to an admirable degree but which has failed to receive the relevant votes or Royal Assent, and so does not have a social source which counts as a law-constituting source in the UK, is not valid law.
That law has a fundamentally social nature, and that the existence and content of valid legal norms is ultimately to be determined by reference to social sources, and not by reference to the merits of the norms in question, are, in my view, the core tenets to which legal positivism is committed, and are endorsed in the work of all those contemporary legal positivists mentioned above (see, e.g., Raz 2007 and 2009; Waluchow 1994; Green 2003 and 2008; Gardner 2001 and 2007; Marmor 2001 and 2006; Coleman 2001; Shapiro 2000 and 2009; Kramer 1999 and 2004. See also, of course, Hart 1994). Their views stand in stark contrast to those of, for example, Ronald Dworkin, who contends that law must be identified and understood by constructively interpreting it, i.e., by gathering together a community’s putative legal and political practices, finding their general justifying value or point, putting them in their best light with regard to that point, and working out which legal rights and duties flow from them thus construed (Dworkin 1986). Dworkin thus rejects the social thesis because he contends that, in trying to identify law and work out what it requires of us—both in the abstract sense in which legal philosophers engage in this task, and the more concrete sense in which judges deciding cases do so (see Dworkin 1986: 90)—we must consider and take a stance on the merits of the law, i.e., consider what general justifying value or point underlies the law, how we should understand it in light of that value and how law should go on in a new case in a way which is consonant with that value (for illuminating commentary on Dworkin’s interpretivist theory of law, see Stavropoulos 2003).
To return to legal positivism: it should be noted that some have thought that the social thesis lends support to or even entails a version of the no-necessary-connection thesis, i.e., that if law is to be identified ultimately by reference to its social sources rather than by reference to its merits, the law so identified cannot of necessity possess any moral qualities. This, however, is a non sequitur which is explicitly rejected by contemporary legal positivists: “The claim that what is law and what is not is purely a matter of social fact still leaves it an open question whether or not those social facts by which we identify the law or determine its existence do or do not endow it with moral merit” (Raz 2009: 38–9); “Legal positivists deny that laws are valid thanks to their moral merits. But they do not deny the converse proposition that laws might be morally meritorious thanks to their validity” (Gardner 2001: 224).
B. Some Disagreements Around the Agreement
Although we may have located the shared tenets of legal positivism, they are shared tenets which nonetheless admit of disagreement, for some of the elements they comprise are interpreted differently by various legal theorists. I will mention only a few such disagreements here. The first disagreement pertains to the stringency of the thesis that the existence and content of the law is to be determined by social facts and not by reference to its merits. For those in the so-called “exclusive positivist” or “hard positivist” camp—including Raz, Marmor, Gardner and Shapiro—law is to be identified solely by reference to its social sources, whereas for so-called “soft positivists” or “inclusive positivists”—including Hart (at least in the posthumously published “Postscript” to The Concept of Law (1994)), Waluchow and Kramer—the merits of a legal norm may determine its legal validity and content, but only if, in a given legal system, source-based considerations render those merits relevant to such determinations. So, for example, for soft or inclusive legal positivists, if a norm in a constitution (itself recognized as constituting valid law according to that system’s rules of recognition), or a norm forming part of that system’s rules of recognition, requires that no statute shall be legally valid unless it is consistent with fairness and equality, then the (moral) values of fairness and equality are thereby included in, or incorporated into, the test for legal validity in that jurisdiction, and the existence and content of the law will be partly dependent on its conformity with merit-based considerations. According to such theorists, their theory remains positivist in character because the merit-based considerations in question are only relevant if, in a given jurisdiction, some social sources implicitly or explicitly make them so, hence maintaining commitment to the social thesis as stated above, that the existence and content of the law is ultimately to be determined by reference to social facts (see, e.g., Waluchow 1994 for an extended explanation of the position). Exclusive legal positivists deny that merit-based considerations indicated or referred to by social sources thereby become incorporated into the law, and hence need a different explanation of legal phenomena such as equality or fairness clauses in constitutions or elsewhere in the recognition rules of a given jurisdiction (for one such attempted explanation, see Raz 2004. More generally, for discussion of exclusive vs. inclusive legal positivism, see, e.g., Waluchow 1994; Kramer 2004; Marmor 2001; Raz 1994 and 2004; Green 2003; Shapiro 2000, 2001 and 2009; and Himma 2005).
A second area of controversy surrounds the issue of whether the social facts by means of which law’s existence and identity are determined are best understood as social con ventions of some kind, and, if so, of what kind. Debate on this issue has often been prompted by H. L. A. Hart’s version of legal positivism and, in particular, by his contention that the ultimate social fact upon which law’s existence and identity depends is acceptance in common by legal officials of a recognition rule specifying criteria of legal validity (Hart 1994). The question has then arisen as to whether, as Hart himself seems to indicate in the “Postscript” (Hart 1994: 256, 267), the common recognition practices of legal officials ought to be regarded as a social convention, i.e., wherein part of the reason which each official has for adopting the practice of accepting the recognition rule in question is the fact that her fellow officials so adopt it (for further discussion see Green 1999; Marmor 2001; Shapiro 2002; Dickson 2007).
A third point of contention is whether legal positivism offers a reductive account of legal validity, i.e., whether it attempts to reduce what it is for a norm to be legally valid to a certain combination of social facts. Some of those usually classified as legal positivists vehemently reject such reductivism, and contend that legal validity must be understood in purely normative terms: legal norms are valid in virtue of their relation to other legal norms higher up what are referred to as “chains of validity” of norms (see Kelsen 1967, although Kelsen’s work does not feature significantly in the present discussion for the reasons already outlined in relation to H. L. A. Hart). Other positivists, however, do reduce what it is for a norm to be legally valid to a combination of certain facts, e.g., the fact that the norm has been decreed by a sovereign, the fact that it is habitually obeyed by the relevant populace and the likelihood in fact that a sanction will be visited on those failing to comply with that norm (Bentham 1970/1782; Austin 1995/1832). Still others occupy what might be seen as an intermediate and perhaps tricky position, claiming that social facts (such as the fact of acceptance in common by legal officials) identify and constitute the recognition rules which determine legal validity in a given jurisdiction, but also insisting that the recognition rules so constituted must be understood in normative terms, i.e., as creating legal reasons for action. On this view, recognition rules must be understood normatively, and not merely as indications that certain facts have occurred or as predictions that they will occur, because that is how those rules are understood and used by the legal officials administering them (Hart 1994, especially his discussion of the “internal point of view” in chs. 5 and 6).
A related issue is that of whether legal positivists accept in common a certain account of legal normativity or of the correct way to understand legal ought-statements such as “according to law, X ought to Φ.” Once again, this seems to be an area where disagreement predominates. Some positivists contend that there is a specifically legal sense of “ought” and a specifically legal account of normativity to be had, such that legal oughtstatements are to be understood as different in kind and in meaning from moral oughtstatements (see, e.g., Hart 1982, chs. VI and X; Harris 1996, offering an interpretation of Kelsen’s views). Other legal positivists, however, espouse the view that “ought” has the same meaning in both legal and moral contexts, but that it is possible to make legal ought-statements while not being fully committed to the normative force of those statements (Raz 2009, especially chs. 3, 7 and 8). These “detached normative statements” allow law to be described, and for advice to be given about what law requires, without the speaker being committed to the moral force of the legal statements in question, in the manner of a Roman Catholic advising an orthodox Jewish friend what she ought to do to comply with rabbinical law (Raz 2009, ch. 8).
These complex and somewhat internecine debates can be explored further by referring to those works mentioned in this section. As there is no shared view on them among legal positivists, they do not feature among those core tenets by reference to which that position is characterized here. In any case, the present discussion largely sidesteps these issues in order to devote more attention to what I regard as a more fundamental point as regards contemporary legal positivism, namely why, if at all, are the theses about the nature of law to which it is committed important? This will form the topic for discussion in Part II below. Before embarking on that discussion, however, it is important to note a few other things that legal positivism is not.
C. What Else Legal Positivism Is Not
Legal positivists are committed to certain views about the nature of law, namely (in the sense explained above) the social thesis regarding the existence and identification of law, and, more broadly, the fundamentally social nature of law. These, however, are but a small subset of purported truths about law’s nature: legal positivism marks a commitment to certain views about some aspects of the nature of law