This assignment will explore the view that legal positivism has no necessary connection with morality. This view will be contrasted to the natural law view that law does have a connection with morality. This view will be contrasted with particular focus on the issue of civil disobedience. This will be achieved by a general critical discussion of positivist and natural law theory. It will be concluded that both theories are inadequate as complete legal theories with natural law failing to explain the existence of “wicked” legal systems but with positivism failing to explain how such “wicked” legal systems are removed.
Before discussing the differing views on the connection of law and morality, it is important to briefly understand what is meant when we speak of morality. Issues of morality are normally determined by conscience or instinct.[1] A distinction should be drawn between positive and critical morality. Positive morality amounts to what people believe (by people we mean society), this it is argued is not what constitutes morality; .i.e. morality cannot be explained by reference to conventional morality. Thus positive morality amounts to social conventions created by man and critical morality amounts to the standards by which such social conventions can be judged.
Positivists are of the view that morality is immaterial to the recognition of what is valid law. Hart, a positivist describes legal positivism “to mean the simple contention that it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have often done so.[2]” Similarly Austin states that “the existence of law is one thing; its merit or demerit is another.[3]” Austin also states that we should distinguish human law from divine laws issuing from God. Divine laws are not, according to Austin “properly so –called” but human laws are and this is because human laws are guiding rules laid down by intelligent beings for intelligent beings. More recently positivists have sought to exclude all references to morality from Law. Kelsen[4] refers to the pure theory of law which he describes as “a theory of positive law. As a theory it is exclusively concerned with the accurate definition of its subject-matter. It endeavours to answer the question what is law? But not the question what ought it to be? It is a science[5]”. According to Kelsen’s theory moral norms are propositions describing our subjective preferences for behaviour and considers all moral judgements to be irrational because they amount to no more than expressions of our feelings all institutions.
The separation of law and morality is known as separation thesis.[6] Legal positivists therefore make a distinction between what is morally desirable, .i.e. what “ought” to be and what actually exists, .i.e. what “is”. This does not mean that legal positivism disregards morality but simply that they understand the law by suspending moral judgement. Inclusive legal positivism maintains the view that moral and other evaluative considerations may determine, under certain circumstances, what the law is, but this is a contingent matter, depending on the particular social rules of recognition of particular legal systems at particular times.
Positivism generally accepts that law has value and that “law is necessarily good[7]” and that there are good reasons to have law and legal systems[8]. Positivists, recognising the authority of law must come from somewhere if not from moral values view law as “command of an uncommanded commander.” Hart disagrees with this view but still recognises that they must be a reason for following law, if not moral. Hart says that law can be recognised by its obedience to secondary laws. Hart describes secondary laws as laws which establish who has the authority to enact law, which of these laws can be enacted and where law will be published[9].
Natural law theorists postulate the alternative view to positivist and believe that law has a necessary connection with morality. Aquinas defines says that “law is a rule and measure of acts whereby man is induced to act or is restrained from acting[10]” and asserts that “law is nothing else than an ordinance of reason for the common good, promulgated by him who has the care of the community.[11]” For Aquinas and other natural law theorists God’s law is primary and cannot be wrong. Natural law theorists, particularly Aquinas, believe that law is unjust only in two circumstances that is where they are contrary to human good and secondly when they are opposed to the divine good[12] and conclude that “an unjust law is no law at all[13]” and that we are not bound follow such laws. Aquinas goes further and says that following these laws is contrary to the divine good because we should obey god and not man.
For positivists this is an unsatisfactory explanation of the law. Whilst positivism does not deny the laws content necessarily overlaps with morality and accepts that every legal system, immoral or wicked as it may be, would have morally acceptable content and promotes some moral good. However positivism assists in explaining evil laws and corrupt legal systems for example the Third Reich had a legal system as did Apartheid South Africa. Positivism claims that it is not plausible to suggest that because these laws are morally objectionable that they are not law and that unjust laws must be treated as laws and corrupt legal systems will still be legal systems[14]. Natural law theorists would simply assert that this is not a legal system; this is an unsatisfactory conclusion when we consider for example that both Germany and South Africa had legal systems with courts, police, lawyers and all other components of a legal system.
This failure of natural law to address this issue becomes incredibly apparent when we consider again Nazi Germany and the Nuremberg trials that preceded this regime. Those citizens involved in mass genocide were obeying the law at that time however as the rest of the world found these laws morally appalling they sought to try these citizens for these war crimes. The Nuremberg trials can be described as ex post facto law, .i.e. punishing citizens according to laws that were not in place at the time when they committed the offence. Natural law provides a rather unsatisfactory explanation for this sequence of events stating that these international laws were according to justice (and morality) and the Nazi laws were not in fact laws at all and that those who followed these laws were breaking the law even if that law was unwritten. Positivists take a different view and would consider the Nazi regime to be law and assert that in order to be punished citizens must be aware of what the law is before their act and not after they have acted.
Whilst positivism helpfully explains why a “wicked” legal system exists it does not in fact explain satisfactorily the removal of that legal system, it does not explain why it was ok, contrary to positivism’s general view, to try citizens for war time crimes retrospectively. Hart attempts to explain this by stating that some laws are so morally reprehensible that they must be opposed but does not offer an explanation as to when a law will be “too evil to be obeyed[15].” This raises an obvious anomaly within Hart’s theory, namely that he uses morality to explain the rejection of law when he asserts that there law has no connection with morality. Natural law theorists make similar assertions but this is set against a theory that asserts that law has a necessary connection with morality. Civil disobedience, according to natural law theorists, is necessary in order to remove a wicked legal system. Therefore according to natural law theory it is sometimes illegal to be moral and a person can act morally but break a civil law. Therefore civil disobedience is a response to “higher” law and states that the law of God should be obeyed. Civil disobedience therefore seeks to reform laws which are out of harmony with the higher law. Civil laws that do not comply with natural law or higher laws are viewed by natural law theorists as unjust for example Aquinas says: “Those laws do not bind in conscience, except perhaps to avoid scandal or disturbance, for which cause a man should even yield his right[16]” Similarly king says that “an individual who breaks a law that his conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for the law”
There are some obvious problems with this explanation that in practice civil disobedience could lead to “social chaos[17]” although this argument is countered by natural law theorists who state that only when positive laws are manifestly unjust does recourse to a higher law (divine law) require civil disobedience. The second difficulty with this theory is that civil disobedience has no application in cases of indirect civil disobedience. Indirect civil disobedience arises when with the aim of protesting against an inaccessible, unjust law a second, perfectly acceptable, law is broken. There is no higher law that is driving the breach of the second law and for this reason, under natural law theory; this rule should not be broken.
Generally positivists view civil disobedience as being acceptable in a democracy as long as it follows the procedures and channels foreseen by the system for making and amending laws. Civil disobedience appears to be missing from both Hart and Austin’s theory of law. Neither of these positivists theory makes it wise, or immoral, to undertakes acts of civil disobedience or rebellion. Their brand of positivism states that if the current sovereign is challenged, the uncertainties over who is in charge means that practical conditions make it hard, if not impossible in fact, to decide who is the sovereign over what territory[18]. Austin does touch upon civil disobedience briefly by saying that because a law is unjust laws it does not mean that this is a defence to breaking that law. He says that only valid law in a polity is the command of the political superior to a subject and that the political superiors are have the power to punish disobedience. He says that whilst he recognises the natural law theory that to break a law contrary to conscience is acceptably, this cannot be correct as conscience is too subjective and can be so capriciously formed that the justification for civil disobedience is not widely accepted.
Dworkin, a modern legal positivist, on the other hand embraces the concept of civil disobedience within his theory. Dworkin’s theory encompasses what he calls moral rights against the government. The result of these moral rights against the government is that a constitutional system may not protect all these rights or interpret them in the correct way. He says that these moral rights may survive legislation which conflicts with them, and this in his view legitimises civil disobedience. Despite this civil disobedience he suggests that government should, still, try to reach the correct answer about the rights of citizens and follow a coherent theory of what these rights are. He accepts the fact that this recognition of individual rights will mean “the majority cannot travel as fast or as far as it would like[19] …” If rights are to be meaningful they therefore must have the legal and/or moral capacity to trump the ambitions of the majority
Natural law theory will necessarily result in authoritarianism or anarchy[20], authoritarianism because citizens believe that their law is just and will therefore unquestionably follow this law, and anarchy because their hold the exact opposite view. Positivism is also likely to result in authoritarianism by the population accepting that law is law without any reference to whether or not it is moral or not[21]. In addition under positivist’s theory if citizens believe the law not to be moral there is no basis on which the populace will exercise civil disobedience in order to bring about a change in law and thus the law becomes stagnant.
One of the most obvious distinctions between these two theories is that positivism says that the concept of law is simply what the legal system in a given society recognises as law, regardless of whether or not that legal system is “wicked” or not whereas naturalism considers law to be an ideal, commonly shared by all human societies. It is increasingly difficult to find favour with natural law theory when we consider the cultural diversity of modern day society and necessarily asks the question of whose morals should be followed and what should be done if these morals conflict? This is not a question that is raised by positivism as it is answered by virtue of the fact that positivist do not view law as being based upon morality, although equally positivism fails to explain satisfactorily removal of wicked legal systems. Therefore it can be concluded that whilst both theories adequately explain aspects of the law neither theory can be viewed in isolation as they both are incomplete and both theories fail to explain some very important aspects of the law.
Bibliography
Books
Austin J, The Province of Jurisprudence Determined, H. L. A. Hart (ed.) (Library of Ideas edn, 1954)
Aquinas Thomas. What is Law? From Summa Theologiae Philosophical Problems in the
Law: (2000) Third Edition. David M. Adams ed. Wadsworth: Scarborough
Cohen C, Conscience, Tactics and the Law,
Doherty M, Jurisprudence: The Philosophy of Law, (2003) 3rd Edition, Old Bailey Press
Dyzenhaus D and Ripstein A, (eds) Law and Morality: Readings in Legal Philosophy.
(1998) University of Toronto Press: Toronto
Hart H, The Concept of Law (1961)
Journals
Coleman J, “Beyond the Separability Thesis: Moral Semantics and The Methodology of Jurisprudence”, Oxford Journal of Legal Studies (2007) 27 (4) 581-608
Dworkin R, “Hart’s Postscript and the Character of Political Philosophy”, Oxford Journal of Legal Studies (2004) 24 1
Epstein R “The not so minimum content of Natural Law” , Oxford Journal of Legal Studies (2004) 25(2) 219-255
Gardner, “Legal Positivism: 5 1/2 Myths’, American Journal of Jurisprudence, (2001), 46 199
Honore T, “The Necessary Connection between Law and Morality”, Oxford Journal of Legal Studies (2002) 22(3) 489-495
Marmor A, “Legal Positivism: Still Descriptive and Morally Neutral”, Oxford Journal of Legal Studies (2006) 26 (4) 683-704
[1] Doherty M, Jurisprudence: The Philosophy of Law, (2003) 3rd Edition, Old Bailey Press
[2] Hart H, The Concept of Law (1961) at page 181
[3] Austin J, The Province of Jurisprudence Determined, H. L. A. Hart (ed.) (Library of Ideas edn, 1954)
[4] Doherty M, Jurisprudence: The Philosophy of Law, (2003) 3rd Edition, Old Bailey Press at page 98-102
[5] Doherty M, Jurisprudence: The Philosophy of Law, (2003) 3rd Edition, Old Bailey Press at page 101
[6] See for example Coleman J, “Beyond the Separability Thesis: Moral Semantics and The Methodology of Jurisprudence”, Oxford Journal of Legal Studies (2007) 27 (4) 581-608
[7] Marmor A, “Legal Positivism: Still Descriptive and Morally Neutral”, Oxford Journal of Legal Studies (2006) 26 (4) 683-704
Gardner, “Legal Positivism: 5 1/2 Myths’, American Journal of Jurisprudence, (2001), 46 199
[9] Hart H, The Concept of Law (1961)
[10] Aquinas Thomas. What is Law? From Summa Theologiae Philosophical Problems in the
Law: (2000) Third Edition. David M. Adams ed. Wadsworth: Scarborough
[11] Aquinas Thomas. What is Law? From Summa Theologiae Philosophical Problems in the
Law: (2000) Third Edition. David M. Adams ed. Wadsworth: Scarborough
[12] Aquinas Thomas. What is Law? From Summa Theologiae Philosophical Problems in the
Law: (2000) Third Edition. David M. Adams ed. Wadsworth: Scarborough
[13] Aquinas Thomas. What is Law? From Summa Theologiae Philosophical Problems in the
Law: (2000) Third Edition. David M. Adams ed. Wadsworth: Scarborough
[14] Honore T, “The Necessary Connection between Law and Morality”, Oxford Journal of Legal Studies (2002) 22(3) 489-495
[15] Hart H, The Concept of Law (1961) at page 68
[16] Aquinas Thomas. What is Law? From Summa Theologiae Philosophical Problems in the
Law: (2000) Third Edition. David M. Adams ed. Wadsworth: Scarborough
[17] Cohen C, Conscience, Tactics and the Law, p 19
[18] Epstein R “The not so minimum content of Natural Law” , Oxford Journal of Legal Studies (2004) 25(2) 219-255
[19] Dworkin R, “Hart’s Postscript and the Character of Political Philosophy”, Oxford Journal of Legal Studies (2004) 24 1
[20] Dyzenhaus D and Ripstein A, (eds) Law and Morality: Readings in Legal Philosophy.
(1998) University of Toronto Press: Toronto at page 4
[21] Dyzenhaus D and Ripstein A, (eds) Law and Morality: Readings in Legal Philosophy.
(1998) University of Toronto Press: Toronto at page 4