Legal positivism is a conceptual theory emphasizing the conventional
nature
of law. Its foundation consists in the pedigree thesis and separability
thesis, which jointly assert that law is manufactured according to certain
social conventions. Also associated with positivism is the view, called
the discretion thesis, that judges make new law in deciding cases not
falling clearly under a legal rule. As an historical matter, positivism
arose in opposition to classical natural law theory, according to which
there are necessary moral constraints on the content of law. The word "positivism" was probably first used to draw attention to the idea that
law
is "positive" or "posited," as opposed to being "natural" in the sense of
being derived from natural law or morality.
Table of Contents (Clicking on the links below will take you to those parts of this article)
1. The Pedigree Thesis
The pedigree thesis asserts that legal
validity is a function of certain social facts. Borrowing heavily from
Jeremy Bentham, John Austin argues that the principal distinguishing
feature of a legal system is the presence of a sovereign who is habitually
obeyed by most people in the society, but not in the habit of obeying any
determinate human superior (Austin 1995, p. 166). On Austin's view, a rule
R is legally valid (i.e., is a law) in a society S if and only if R is
commanded by the sovereign in S and is backed up with the threat of a
sanction. The severity of the threatened sanction is irrelevant; any
general sovereign imperative supported by a threat of even the smallest
harm is a law.
Austin's command theory of law is vulnerable to a number of
criticisms.
One problem is that there appears to be no identifiable sovereign in
democratic societies. In the United States, for example, the ultimate
political power seems to belong to the people, who elect lawmakers to
represent their interests. Elected lawmakers have the power to coerce
behavior but are regarded as servants of the people and not as
repositories
of sovereign power. The voting population, on the other hand, seems to be
the repository of ultimate political authority yet lacks the immediate
power to coerce behavior. Thus, in democracies like that of the United
States, the ultimate political authority and the power to coerce behavior
seem to reside in different entities.
A second problem has to do with Austin's view that the sovereign
lawmaking authority is incapable of legal limitation. On Austin's view, a
sovereign cannot be legally constrained because no person (or body of
persons) can coerce herself (or itself). Since constitutional provisions
limit the authority of the legislative body to make laws, Austin is forced
to argue that what we refer to as constitutional law is really not law at
all; rather, it is principally a matter of "positive morality" (Austin
1977, p. 107).
Austin's view is difficult to reconcile with constitutional law in the
United States. Courts regard the procedural and substantive provisions of
the constitution as constraints on legal validity. The Supreme Court has
held, for example, that "an unconstitutional act is not a law; it confers
no rights; it imposes no duties; it is, in legal contemplation, as
inoperative as though it had never been passed." (Norton v. Shelby
County, 118 U.S. 425 (1886)). Moreover, these constraints purport to
be legal constraints: the Supremacy Clause of Article VI of the
Constitution states that "[t]his Constitution ... shall be the supreme
Law of the Land; and the Judges in every State shall be bound
thereby."
The most influential criticisms of Austin's version of the pedigree
thesis, however, owe to H. L. A. Hart's seminal work, The Concept of
Law. Hart points out that Austin's theory provides, at best, a
partial
account of legal validity because it focuses on one kind of rule, namely
that which requires citizens "to do or abstain from certain actions,
whether they wish to or not" (Hart 1994, p. 81). While every legal system
must contain so-called primary rules that regulate citizen behavior, Hart
believes a system consisting entirely of the kind of liberty restrictions
found in the criminal law is, at best, a rudimentary or primitive legal
system.
On Hart's view, Austin's emphasis on coercive force leads him to
overlook the presence of a second kind of primary rule that confers upon
citizens the power to create, modify, and extinguish rights and
obligations
in other persons. As Hart points out, the rules governing the creation of
contracts and wills cannot plausibly be characterized as restrictions on
freedom that are backed by the threat of a sanction. These rules empower
persons to structure their legal relations within the coercive framework
of
the law-a feature that Hart correctly regards as one of "law's greatest
contributions to social life." The operation of power-conferring primary
rules, according to Hart, indicates the presence of a more sophisticated
system for regulating behavior.
But what ultimately distinguishes societies with full-blown systems of
law from those with only rudimentary or primitive forms of law is that the
former have, in addition to first-order primary rules, secondary
meta-rules
that have as their subject matter the primary rules themselves:
[Secondary rules] may all be said to be on a different level
from the primary rules, for they are all about such rules; in the
sense that while primary rules are concerned with the actions that
individuals must or must not do, these secondary rules are all concerned
with the primary rules themselves. They specify the way in which the
primary rules may be conclusively ascertained, introduced, eliminated,
varied, and the fact of their violation conclusively determined (Hart
1994,
p. 92).
Hart distinguishes three types of secondary rules that mark the
transition from primitive forms of law to full-blown legal systems: (1)
the
rule of recognition, which "specifies] some feature or features
possession
of which by a suggested rule is taken as a conclusive affirmative
indication that it is a rule of the group to be supported by the social
pressure it exerts" (Hart 1994, p. 92); (2) the rule of change, which
enables a society to add, remove, and modify valid rules; and (3) the rule
of adjudication, which provides a mechanism for determining whether a
valid
rule has been violated. On Hart's view, then, every society with a
full-blown legal system necessarily has a rule of recognition that
articulates criteria for legal validity that include provisions for
making,
changing and adjudicating law. Law is, to use Hart's famous phrase, "the
union of primary and secondary rules" (Hart 1994, p. 107). Austin theory
fails, on Hart's view, because it fails to acknowledge the importance of
secondary rules in manufacturing legal validity.
Hart also finds fault with Austin's view that legal obligation is
essentially coercive. According to Hart, there is no difference between
the Austinian sovereign who governs by coercing behavior and the gunman
who
orders someone to hand over her money. In both cases, the subject can
plausibly be characterized as being "obliged" to comply with the
commands,
but not as being "duty-bound" or "obligated" to do so (Hart 1994, p. 80).
On Hart's view, the application of coercive force alone can never give
rise
to an obligation-legal or otherwise.
Legal rules are obligatory, according to Hart, because people accept
them as standards that justify criticism and, in extreme cases, punishment
of deviations:
What is necessary is that there should be a critical
reflective
attitude to certain patterns of behavior as a common standard, and that
this should display itself in criticism (including self-criticism),
demands
for conformity, and in acknowledgements that such criticism and demands
are
justified, all of which find their characteristic expression in the
normative terminology of 'ought', 'must', and 'should', and 'right' and
'wrong' (Hart 1994, p. 56).
The subject who reflectively accepts the rule as providing a standard that
justifies criticism of deviations is said to take "the internal point of
view" towards it.
On Hart's view, it would be too much to require that the bulk of the
population accept the rule of recognition as the ultimate criteria for
legal validity: "the reality of the situation is that a great proportion
of
ordinary citizens-perhaps a majority-have no general conception of the
legal structure or its criteria of validity" (Hart 1994, p. 111).
Instead,
Hart argues that what is necessary to the existence of a legal system is
that the majority of officials take the internal point of view towards the
rule of recognition and its criteria of validity. All that is required of
citizens is that they generally obey the primary rules that are legally
valid according to the rule of recognition.
Thus, on Hart's view, there are two minimum conditions sufficient and
necessary for the existence of a legal system: "On the one hand those
rules
of behavior which are valid according to the system's ultimate criteria
of
validity must be generally obeyed, and, on the other hand, its rules of
recognition specifying the criteria of legal validity and its rules of
change and adjudication must be effectively accepted as common public
standards of official behavior by its officials" (Hart 1994, p. 113).
Hart's view is vulnerable to the same criticism that he levels against
Austin. Hart rejects Austin's view because the institutional application
of coercive force can no more give rise to an obligation than can the
application of coercive force by a gunman. But the situation is no
different if the gunman takes the internal point of view towards his
authority to make such a threat. Despite the gunman's belief that he is
entitled to make the threat, the victim is obliged, but not obligated, to
comply with the gunman's orders. The gunman's behavior is no less
coercive
because he believes he is entitled to make the threat.
And likewise for a minimal legal system where only the officials of
the
legal system take the internal point of view towards the rule of
recognition that endows them with authority to make, execute, adjudicate,
and enforce the rules. The mere presence of a belief in the officials
that
they are entitled to make law cannot give rise to an obligation in other
people to comply with their enactments any more than the presence of a
belief on the part of a gunman that he is entitled to issue orders gives
rise to an obligation in the victim to comply with those orders. Hart's
minimal legal system is no less coercive than Austin's legal system.
2. The Separability Thesis
The second thesis comprising the
foundation of legal positivism is the separability thesis. In its most
general form, the separability thesis asserts that law and morality are
conceptually distinct. This abstract formulation can be interpreted in a
number of ways. For example, Klaus Faber (1996) interprets it as making a
meta-level claim that the definition of law must be entirely free of moral
notions. This interpretation implies that any reference to moral
considerations in defining the related notions of law, legal validity, and
legal system is inconsistent with the separability thesis.
More commonly, the separability thesis is interpreted as making only
an
object-level claim about the existence conditions for legal validity. As
H.L.A. Hart describes it, the separability thesis is no more than 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" (Hart 1994, pp. 181-82). Insofar as the object-level
interpretation of the separability thesis denies it is a necessary truth
that there are moral constraints on legal validity, it implies the
existence of a possible legal system in which there are no moral
constraints on legal validity.
a. Inclusive vs. Exclusive Positivism
Though all positivists agree there are possible legal systems without
moral constraints on legal validity, there are conflicting views on
whether
there are possible legal systems with such constraints. According to
inclusive positivism (also known as incorporationism and soft positivism),
it is possible for a society's rule of recognition to incorporate moral
constraints on the content of law. Prominent inclusive positivists
include
Jules Coleman and H.L.A. Hart, who maintains that "the rule of recognition
may incorporate as criteria of legal validity conformity with moral
principles or substantive values ... such as the Sixteenth or Nineteenth
Amendments to the United States Constitution respecting the
establishment
of religion or abridgements of the right to vote" (Hart 1994, p. 250).
In contrast, exclusive positivism (also called hard positivism) denies
that a legal system can incorporate moral constraints on legal validity.
Exclusive positivists like Joseph Raz (1979, p. 47) subscribe to the
source
thesis, according to which the existence and content of law can always be
determined by reference to its sources without recourse to moral argument.
On this view, the sources of law include both the circumstances of its
promulgation and relevant interpretative materials, such as court cases
involving its application.
At first glance, exclusive positivism may seem difficult to reconcile
with what appear to be moral criteria of legal validity in legal systems
like that of the United States. For example, the Fourth Amendment
provides
that "[t]he right of the people to be secure in their persons, houses,
papers, and effects against unreasonable searches and seizures, shall not
be violated." Likewise, the First Amendment prohibits laws abridging the
right of free speech. Taken at face value, these amendments seem to
make
moral standards part of the conditions for legal validity.
Exclusive positivists argue that such amendments can require judges
to
consider moral standards in certain circumstances, but cannot incorporate
those standards into the law. When a judge makes reference to moral
considerations in deciding a case, she necessarily creates new law on an
issue-and this is so even when the law directs her to consider moral
considerations, as the Bill of Rights does in certain circumstances. On
this view, all law is settled law and questions of settled law can be
resolved without recourse to moral arguments:
The law on a question is settled when legally binding sources
provide its solution. In such cases judges are typically said to apply
the
law, and since it is source-based, its application involves technical,
legal skills in reasoning from those sources and does not call for moral
acumen. If a legal question is not answered by standards deriving from
legal sources then it lacks a legal answer-the law on such questions is
unsettled. In deciding such cases courts inevitably break new (legal)
ground and their decision develops the law.... Naturally, their decisions
in such cases rely at least partly on moral and other extra-legal
considerations (Raz 1979, pp. 49-50).
If the judge can resolve an issue involving the First Amendment merely by
applying past court decisions, then the issue is settled by the law; if
not, then the issue is unsettled. Insofar as the judge looks to
controversial moral standards to resolve the issue, she is going beyond
the
law because the mere presence of controversy about the law implies that it
is indeterminate. Thus, on Raz's view, references to moral language in
the
law, at most, direct judges to consider moral requirements in resolving
certain unsettled questions of law. They cannot incorporate moral
requirements into the law.
3. The Discretion Thesis
third thesis commonly associated with
positivism is the discretion thesis, according to which judges decide
difficult cases by making new law in the exercise of discretion. Ronald
Dworkin describes this thesis as follows:
The set of these valid legal rules is exhaustive of 'the law',
so that if someone's case is not clearly covered by such a rule . . . then
that case cannot be decided by 'applying the law.' It must be decided by
some official, like a judge, 'exercising his discretion,' which means
reaching beyond the law for some other sort of standard to guide him in
manufacturing a fresh legal rule or supplementing an old one (Dworkin
1977,
p. 17).
On this view, a judge cannot decide a case that does not fall clearly
under
a valid rule by interpreting or applying the law; she must decide the case
by creating or promulgating a law that did not exist prior to the
adjudication. Thus, the discretion thesis implies that judges are
empowered with a quasi-legislative lawmaking authority in cases that
cannot
be decided merely by applying law.
Though often associated with positivism, the discretion thesis does
not
belong to positivism's theoretical core. The pedigree and separability
theses purport to be conceptual claims that are true of every possible
legal system. These two claims jointly assert that, in every possible
legal system, propositions of law are valid in virtue of having been
manufactured according to some set of social conventions. On this view,
there are no moral constraints on the content of law that hold in every
possible legal system.
But many positivists regard the discretion thesis as a contingent
claim
that is true of some, but not all, possible legal systems. Hart, for
example, believes there will inevitably arise cases that do not fall
clearly under a rule, but concedes a rule of recognition could deny judges
discretion to make law in such cases by requiring judges "to disclaim
jurisdiction or to refer the points not regulated by the existing law to
the legislature to decide" (Hart 1994, p. 272). Indeed, Hart's inclusive
positivism allows him to hold that a rule of recognition could require
judges to decide cases in precisely the manner that Dworkin advocates
(Hart
1994, p. 263; and see Section IV-2, infra). Thus, at least for
inclusive positivists like Hart, the discretion thesis makes a different
kind of claim than the conceptual claims that form positivism's
theoretical
core (Himma 1999).
Moreover, the discretion thesis is consistent with some forms of
natural law theory. According to Blackstone's classical naturalism,
conformity with the natural law is a necessary condition for legal
validity
in every possible legal system. But insofar as the natural law is
incomplete, there will inevitably arise issues that have multiple outcomes
consistent with the natural law. Since none of the relevant outcomes in
such cases offend the natural law, there is nothing in the assumption of
necessary moral constraints on the content of law, in and of itself, that
precludes Blackstone from endorsing the discretion thesis in such cases.
Of course, if Blackstone believes the natural law contains a principle
denying discretion to judges, then that commitment is inconsistent
with the discretion thesis. But the assertion there are necessary
constraints on the content of law, in and of itself, is consistent with
the
discretion thesis, even construed as a conceptual claim, as long as there
are cases to which the natural law is indifferent.
In any event, Dworkin distinguishes three different senses in which a
judge might be said to have discretion: (1) a judge has discretion when
she
exercises judgment in applying a legal standard to a particular case; (2)
a
judge has discretion when her decision is not subject to reversal by any
other authority; and (3) a judge has discretion when her decision is not
bound by any legal standards.
According to Dworkin, positivism's discretion thesis is committed to
the third sense of discretion, which he refers to as strong discretion.
On
Dworkin's view, the thesis that judges have discretion only in the sense
that they exercise judgment is trivially true, while the thesis that
judges
have discretion in the sense that their decisions are not subject to being
reversed by a higher authority is false. Even the Supreme Court can be
reversed by Congress or by constitutional amendment. Thus, on Dworkin's
view, the discretion thesis implies that judges have discretion to decide
hard cases by what amounts to an act of legislation because the judge is
not bound by any legal standards.
Thus construed, the discretion thesis is inconsistent with ordinary
legal practice. Even in the most difficult of cases where there is no
clearly applicable law, lawyers do not ask that the judge decide the
relevant issue by making new law. Each lawyer cites cases favorable to
her
client's position and argues that the judge is bound by those cases to
decide in her client's favor. As a practical matter, lawyers rarely, if
ever, concede there are no legal standards governing a case and ask the
judge to legislate in the exercise of discretion.
Nevertheless, the problem with Dworkin's analysis is that it falsely
presupposes an official cannot make new law unless there are no legal
standards constraining the official's decision. Indeed, lawmaking
authorities in legal systems like the U.S. never have what Dworkin
describes as strong discretion. Even the legislative decisions of
Congress, the highest legislative authority in the nation, are always
constrained by constitutional standards. For example, under the
Fourteenth
Amendment, Congress cannot enact a law that sets one speed limit for
male
drivers on interstate highways and another for female drivers.
For his part, Hart concedes that judicial lawmaking authority is
limited in two respects: "not only are the judge's powers subject to many
constraints narrowing his choice from which a legislature may be
quite free, but since the judge's powers are exercised only to dispose of
particular instant cases he cannot use these to introduce large-scale
reforms or new codes" (Hart 1994, p. 273). What explains the judge's
discretion to make new law in a given case, on Hart's view, is not the
absence of legal standards constraining her decision; rather it is the
absence of legal standards that dictate a uniquely correct answer to the
case. The judge cannot decide such a case merely by applying existing law
because there is more than one available outcome that coheres with
existing
law. In such instances, it is impossible to render a substantive decision
(as opposed to simply referring the matter back to the legislature)
without
creating new law.
The discretion thesis is vulnerable to one powerful objection.
Insofar
as a judge decides a difficult case by making new law in the exercise of
discretion, the case is being decided on the basis of a law that did not
exist at the time the dispute arose. If, for example, a judge awards
damages to a plaintiff by making new law in the exercise of discretion, it
follows that she has held the defendant liable under a law that did not
exist at the time the dispute arose. And, as Dworkin points out, it seems
patently unfair to deprive a defendant of property for behavior that did
not give rise to liability at the time the behavior occurred.
Nevertheless, Dworkin's view fares no better on this count. While
Dworkin acknowledges the existence of difficult cases that do not fall
clearly under a rule, he believes they are not resolved by an exercise of
judicial discretion. On Dworkin's view, there is always a right answer to
such cases implicit in the pre-existing law. Of course, it sometimes
takes
a judge of Herculean intellectual ability to discern what the right answer
is, but it is always there to be found in pre-existing law. Since the
right answer to even hard legal disputes is always part of pre-existing
law, Dworkin believes that a judge can take property from a defendant in a
hard case without unfairness (Dworkin 1977, pp. 87-130).
But if fairness precludes taking property from a defendant under a law
that did not exist at the time of the relevant behavior, it also precludes
taking property from a defendant under a law that did not give reasonable
notice that the relevant behavior gives rise to liability. Due process
and
fundamental fairness require reasonable notice of which behaviors give
rise
to liability. As long as Dworkin acknowledges the existence of cases so
difficult that only the best of judges can solve them, his theory is
vulnerable to the same charge of unfairness that he levels at t
he discretion thesis.
4. Classic Criticisms of Positivism
a. Fuller's Internal Morality of Law
In The Morality of
Law, Lon L. Fuller argues that law is subject to an internal morality
consisting of eight principles: (P1) the rules must be expressed in
general
terms; (P2) the rules must be publicly promulgated; (P3) the rules must be
(for the most part) prospective in effect; (P4) the rules must be
expressed
in understandable terms; (P5) the rules must be consistent with one
another; (P6) the rules must not require conduct beyond the powers of the
affected parties; (P7) the rules must not be changed so frequently that
the
subject cannot rely on them; and (P8) the rules must be administered in a
manner consistent with their wording (Fuller 1964, p. 39).
On Fuller's view, no system of rules that fails minimally to satisfy
these principles of legality can achieve law's essential purpose of
achieving social order through the use of rules that guide behavior. A
system of rules that fails to satisfy (P2) or (P4), for example, cannot
guide behavior because people will not be able to determine what the rules
require. Accordingly, Fuller concludes that his eight principles are
"internal" to law in the sense that they are built into the existence
conditions for law: "A total failure in any one of these eight directions
does not simply result in a bad system of law; it results in something
that
is not properly called a legal system at all" (Fuller 1964, p. 39).
These internal principles constitute a morality, according to Fuller,
because law necessarily has positive moral value in two respects: (1) law
conduces to a state of social order and (2) does so by respecting human
autonomy because rules guide behavior. Since no system of rules
can
achieve these morally valuable objectives without minimally complying with
the principles of legality, it follows, on Fuller's view, that they
constitute a morality. Since these moral principles are built into the
existence conditions for law, they are internal and hence represent a
conceptual connection between law and morality that is inconsistent with
the separability thesis.
Hart responds by denying Fuller's claim that the principles of
legality
constitute an internal morality; on Hart's view, Fuller confuses the
notions of morality and efficacy:
[T]he author's insistence on classifying these principles of
legality as a "morality" is a source of confusion both for him and his
readers.... [T]he crucial objection to the designation of these
principles
of good legal craftsmanship as morality, in spite of the qualification
"inner," is that it perpetrates a confusion between two notions that it is
vital to hold apart: the notions of purposive activity and morality.
Poisoning is no doubt a purposive activity, and reflections on its purpose
may show that it has its internal principles. ("Avoid poisons however
lethal if they cause the victim to vomit"....) But to call these
principles of the poisoner's art "the morality of poisoning" would simply
blur the distinction between the notion of efficiency for a purpose and
those final judgments about activities and purposes with which morality in
its various forms is concerned (Hart 1965, pp. 1285-86).
On Hart's view, all actions, including virtuous acts like lawmaking and
impermissible acts like poisoning, have their own internal standards of
efficacy. But insofar as such standards of efficacy conflict with
morality, as they do in the case of poisoning, it follows that they are
distinct from moral standards. Thus, while Hart concedes that something
like Fuller's eight principles are built into the existence conditions for
law, he concludes that they do not constitute a conceptual connection
between law and morality.
Unfortunately, Hart's response overlooks the fact that most of
Fuller's
eight principles double as moral ideals of fairness. For example, public
promulgation in understandable terms may be a necessary condition for
efficacy, but it is also a moral ideal; it is morally objectionable for a
state to enforce rules that have not been publicly promulgated in terms
reasonably calculated to give notice of what is required. Similarly, we
take it for granted that it is wrong for a state to enact retroactive
rules, inconsistent rules, and rules that require what is impossible.
Poisoning may have its internal standards of efficacy, but such standards
are distinguishable from the principles of legality in that they conflict
with moral ideals.
Nevertheless, Fuller's principles operate internally, not as moral
ideals, but merely as principles of efficacy. As Fuller would likely
acknowledge, the existence of a legal system is consistent with
considerable divergence from the principles of legality. Legal standards,
for example, are necessarily promulgated in general terms that inevitably
give rise to problems of vagueness. And officials all too often fail to
administer the laws in a fair and even-handed manner-even in the best of
legal systems. These divergences may always be prima facie
objectionable, but they are inconsistent with a legal system only when
they
render a legal system incapable of performing its essential function of
guiding behavior. Insofar as these principles are built into the
existence
conditions for law, it is because they operate as efficacy conditions-and
not because they function as moral ideals.
Fuller's jurisprudential legacy, however, should not be
underestimated.
While positivists have long acknowledged that law's essential purpose is
to guide behavior through rules (e.g., John Austin writes that "[a] law
..
may be defined as a rule laid down for the guidance of an intelligent
being
by an intelligent being having power over him" Austin 1977, p. 5), they
have not always appreciated the implications of this purpose. Fuller's
lasting contribution to the theory of law was to flesh out these
implications in the form of his principles of legality.
b. Positivism and Legal Principles
workin argues that, in
deciding hard cases, judges often invoke legal principles that do not
derive their authority from an official act of promulgation (Dworkin 1977,
p. 40). These principles, Dworkin believes, must be characterized as law
because judges are bound to consider them when relevant. But if
unpromulgated legal principles constitute law, then it is false,
contra the pedigree thesis, that a proposition of law is valid only
in virtue of having been formally promulgated.
According to Dworkin, principles and rules differ in the kind of
guidance they provide to judges:
Rules are applicable in an all-or-nothing fashion. If the
facts a rule stipulates are given, then either the rule is valid, in which
case the answer it supplies must be accepted, or it is not, in which case
it contributes nothing to the decision.... But this is not the way
principles operate.... [A principle] states a reason that argues in one
direction, but does not necessitate a particular decision (Dworkin 1977,
pp. 24-25).
On Dworkin's view, conflicting principles provide competing reasons that
must be weighed according to the importance of the respective values they
express. Thus, rules are distinguishable from principles in two related
respects: (1) rules necessitate, where principles only suggest, a
particular outcome; and (2) principles have, where rules lack, the
dimension of weight.
Dworkin cites the case of Riggs v. Palmer as representative of
how judges use principles to decide hard cases. In Riggs, the
court
considered the question of whether a murderer could take under the will of
his victim. At the time the case was decided, neither the statutes nor
the
case law governing wills expressly prohibited a murderer from taking under
his victim's will. Despite this, the court declined to award the
defendant
his gift under the will on the ground that it would be wrong to allow him
to profit from such a grievous wrong. On Dworkin's view, the court
decided
the case by citing "the principle that no man may profit from his own
wrong
as a background standard against which to read the statute of wills and in
this way justified a new interpretation of that statute" (Dworkin 1977, p.
29).
The positivist might respond that when the Riggs court
considered this principle, it was reaching beyond the law to extralegal
standards in the exercise of judicial discretion. But Dworkin points out
that the Riggs judges would "rightfully" have been criticized had
they failed to consider this principle; if it were merely an extralegal
standard, there would be no rightful grounds to criticize a failure to
consider it (Dworkin 1977, p. 35). Accordingly, Dworkin concludes that
the
best explanation for the propriety of such criticism is that principles
are
part of the law.
Further, Dworkin maintains that the legal authority of standards like
the Riggs principle cannot derive from promulgation in accordance
with purely formal requirements: "[e]ven though principles draw support
from the official acts of legal institutions, they do not have a simple or
direct enough connection with these acts to frame that connection in terms
of criteria specified by some ultimate master rule of recognition"
(Dworkin
1977, p. 41). Unlike legal rules, legal principles lack a canonical form
and hence cannot be explained by formal promulgation.
On Dworkin's view, the legal authority of a binding principle derives
from the contribution it makes to the best moral justification for a
society's legal practices considered as a whole. According to Dworkin, a
legal principle maximally contributes to such a justification if and only
if it satisfies two conditions: (1) the principle coheres with existing
legal materials; and (2) the principle is the most morally attractive
standard that satisfies (1). The correct legal principle is the one that
makes the law the moral best it can be. Thus, Dworkin concludes, "if we
treat principles as law we must reject the positivists' first tenet, that
the law of a community is distinguished from other social standards by
some
test in the form of a master rule" (Dworkin 1977, p. 44).
In response, positivists concede that there are legal principles, but
argue that their authority as law can be explained in terms of the
conventions contained in the rule of recognition:
Legal principles, like other laws, can be enacted or repealed
by legislatures and administrative authorities. They can also become
legally binding through establishment by the courts. Many legal systems
recognize that both rules and principles can be made into law or lose
their
status as law through precedent (Raz 1972, p. 848).
According to this view, legal principles are like legal rules in that both
derive their authority under the rule of recognition from the official
acts
of courts and legislatures. If the Riggs principle that no person
shall profit from her own wrong has legal authority, it is because that
principle was either declared by a court in the course of adjudicating a
dispute or formally promulgated by the appropriate legislative body.
Further, inclusive positivists argue that Dworkin's account of
principles is itself consistent with the pedigree thesis. As Hart puts
it,
"this interpretative test seems not to be an alternative to a criterion
provided by a rule of recognition, but ... only a complex
'soft-positivist'
form of such a criterion identifying principles by their content not by
their pedigree" (Hart 1994, p. 263). The idea, familiar from Section II,
is that a rule of recognition can incorporate content-based constraints on
legal validity, even those rooted ultimately in morality.
c. The Semantic Sting
In Law's Empire, Dworkin
distinguishes two kinds of disagreement legal practitioners can have about
the law. Lawyers can agree on the criteria a rule must satisfy to be
legally valid, but disagree on whether those criteria are satisfied by a
particular rule. For example, two lawyers might agree that a rule is
valid
if enacted by the state legislature, but disagree on whether the rule at
issue was actually enacted by the state legislature. Such disagreements
are empirical in nature and hence pose no theoretical difficulties for
positivism.
There is, however, a second kind of disagreement that Dworkin
believes
is inconsistent with positivism. Lawyers often agree on the facts about a
rule's creation, but disagree on whether those facts are sufficient to
endow the rule with legal authority. Such disagreement is considerably
deeper than empirical disagreement as it concerns the criteria for legal
validity-which, according to positivism, are exhausted by the rule of
recognition. Dworkin calls this second kind of disagreement theoretical
disagreement about the law.
Theoretical disagreement, on Dworkin's view, is inconsistent with the
pedigree thesis because the pedigree thesis explains the concept of law in
terms of shared criteria for creating, changing and adjudicating law:
If legal argument is mainly or even partly about [the
properties that make a proposition legally valid], then lawyers cannot all
be using the same factual criteria for deciding when propositions of law
are true and false. Their arguments would be mainly or partly about which
criteria they should use. So the project of the semantic theories, the
project of digging out shared rules from a careful study of what lawyers
say and do, would be doomed to fail (Dworkin 1986, p.
43).
If lawyers disagree about the criteria of legal validity, then the grounds
of legal validity cannot be exhausted by the shared criteria contained in
a
rule of recognition. The semantic sting, then, implies that there must be
more to the concept of legal validity than can be explained by
promulgation
in accordance with shared criteria embodied in a rule of recognition.
The semantic sting resembles one of Dworkin's earlier criticisms of
Hart's pedigree thesis. Hart believes that the rule of recognition is a
social rule and is hence constituted by the conforming behavior of people
who also accept the rule as a ground for criticizing deviations. Like all
social rules, then, the rule of recognition has an external and internal
aspect. The external aspect of the rule of recognition consists in
general
obedience to those rules satisfying its criteria of validity; the internal
aspect is constituted by its acceptance as a public standard of official
behavior. Hart believes it is this double aspect of the rule of
recognition that accounts for its normativity and enables him to
distinguish his theory from Austin's view of law as a system of coercive
commands. For, as Hart points out, a purely coercive command can
oblige,
but never obligate, a person to comply (see Section I, supra).
Dworkin argues that this feature of Hart's theory commits him to the
claim that there cannot be any disagreement about the content of rule of
recognition:
Hart's qualification ... that the rule of recognition may be
uncertain at particular points ... undermines [his theory].... If judges
are in fact divided about what they must do if a subsequent Parliament
tries to repeal an entrenched rule, then it is not uncertain whether any
social rule [of recognition] governs that decision; on the contrary, it is
certain that none does (Dworkin 1977, pp. 61-62).
On Dworkin's view, the requirements of a social rule cannot be uncertain
since a social rule is constituted by acceptance and conforming behavior
by
most people in the relevant group: "two people whose rules differ ...
cannot be appealing to the same social rule, and at least one of them
cannot be appealing to any social rule at all" (Dworkin 1977, p. 55).
Jules Coleman responds that if the rule of recognition is a social
rule, then Hart's view implies there must be general agreement among the
officials of a legal system about what standards constitute the rule of
recognition, but it does not imply there cannot be disagreement as to what
those standards require in any given instance:
The controversy among judges does not arise over the
content
of
the rule of recognition itself. It arises over which norms satisfy the
standards set forth in it. The divergence in behavior among officials as
exemplified in their identifying different standards as legal ones does
not
establish their failure to accept the same rule of recognition. On the
contrary, judges accept the same truth conditions for propositions of
law.... They disagree about which propositions satisfy those conditions
(Coleman 1982, p. 156).
Coleman, then, distinguishes two kinds of disagreement practitioners can
have about the rule of recognition: (1) disagreement about what standards
constitute the rule of recognition; and (2) disagreement about what
propositions satisfy those standards. On Coleman's view, Hart's analysis
of social rules implies only that (1) is impossible.
Under the U.S. rule of recognition, for example, a federal statute is
legally valid if and only if it has been enacted in accordance with the
procedural requirements described in the body of the Constitution and is
consistent with the first fourteen amendments. Since, on Hart's view, the
U.S. rule of recognition is a social rule, U.S. officials must agree on
the
procedures the federal government must follow in enacting law, the set of
sentences constituting the first fourteen amendments, and the requirement
that federal enactments be consistent with those amendments.
But Hart's view of social rules does not imply there cannot be any
disagreement about whether a given enactment is consistent with the first
fourteen amendments. Legal practitioners can and do disagree on what
Hart
calls penumbral (or borderline) issues regarding the various amendments.
While every competent practitioner in the U.S. would agree, for example,
that torturing a person to induce a confession violates the fifth
amendment
right against self-incrimination, there is considerable disagreement about
whether compelling a defendant to undergo a psychiatric examination for
the
purpose of increasing her sentence also violates that right. On Coleman's
view, there is nothing in Hart's analysis of social rules that precludes
such borderline disagreements about whether a practice is consistent with
the Fifth Amendment.
Despite its resemblance to this earlier criticism, Dworkin's semantic
sting argument takes aim at a deeper target. The semantic sting targets
all so-called semantic theories of law that articulate the concept of law
in terms of "shared rules ... that set out criteria that supply the word's
meaning" (Dworkin 1986, p. 31). Thus, while the earlier criticism is
directed at Hart's extraneous account of social rules, the semantic sting
is directed at what Dworkin takes to be the very heart of positivism's
theoretical core, namely, the claim that there are shared criteria that
exhaust the conditions for the correct application of the concept of law.
At the root of the problem with semantic theories, on Dworkin's view,
is a flawed theory of what makes disagreement possible. According to
Dworkin, semantic theories mistakenly assume that meaningful
disagreement
is impossible unless "we all accept and follow the same criteria for
deciding when our claims are sound, even if we cannot state exactly, as a
philosopher might hope to do, what these criteria are" (Dworkin 1986, p.
45). On this flawed assumption, two people whose concepts of law differ
cannot be disagreeing about the same thing.
Perhaps with Coleman's response to his earlier criticism in mind,
Dworkin concedes that semantic theories are consistent with theoretical
disagreements about borderline or penumbral cases: "people do
sometimes
speak at cross-purposes in the way the borderline defense describes"
(Dworkin 1986, p. 41). But Dworkin denies semantic theories are consistent with
theoretical disagreement about pivotal (or core) cases. According to
semantic theories, he says,
[Y]ou and I can sensibly
discuss how many books I have on my shelf, for example, only if we both
agree, at least roughly, about what a book is. We can disagree over
borderline cases: I may call something a slim book that you would call a
pamphlet. But we cannot disagree over what I called pivotal cases. If
you
do not count my copy of Moby-Dick as a book because in your view
novels are not books, any disagreement is bound to be senseless (Dworkin
1986, p. 45).
The problem, on Dworkin's view, is that many difficult appellate cases
like Riggs involve theoretical disagreement about pivotal cases:
The various judges who argued about our sample cases did
not
think they were defending marginal or borderline claims. Their
disagreements about legislation and precedent were fundamental; their
arguments showed that they disagreed not only about whether Elmer
should
have his inheritance, but about why any legislative act, even traffic
codes
and rates of taxation, impose the rights and obligations everyone agrees
they do.... They disagreed about what makes a proposition of law true not
just at the margin but in the core as well (Dworkin 1986, pp.
42-43).
On Dworkin's view, the judges in Riggs were not having a borderline
dispute about some accepted criterion for the application of the concept
of
law. Rather, they were having a disagreement about the status of some
putatively fundamental criterion itself: the majority believed, while the
dissent denied, that courts have power to modify unambiguous legislative
enactments.
Accordingly, theoretical disagreement about pivotal cases like
Riggs is inconsistent with semantic theories of law, on Dworkin's
view, because it shows that shared criteria do not exhaust the proper
conditions for the application of the concept of law. For the majority
and
dissenting judges in Riggs were having a sensible disagreement
about
law even though it centered on a pivotal case involving the criteria of
legal validity. Thus, Dworkin concludes, the concept of law cannot be
explained by so-called criterial semantics.
In response, Hart denies both that his theory is a semantic theory and
that it assumes such an account of what makes disagreement possible:
[N]othing in my book or in anything else I have written
supports [a semantic account] of my theory. Thus, my doctrine that
developed municipal legal systems contain a rule of recognition specifying
the criteria for the identification of the laws which courts have to apply
may be mistaken, but I nowhere base this doctrine on the mistaken idea
that
it is part of the meaning of the word 'law' that there should be such a
rule of recognition in all legal systems, or on the even more mistaken
idea
that if the criteria for the identification of the grounds of law were not
uncontroversially fixed, 'law' would mean different things to different
people (Hart 1994, p. 246).
Instead, Hart argues that his theory of law is "a descriptive account of
the distinctive features of law in general as a complex social phenomenon"
(Hart 1994, p. 246). Hart presents his theory, not as an account of how
people apply the concept of law, but rather as an account of what
distinguishes systems of law from other systems of social rules. On
Hart's
view, it is the presence of a rule of recognition establishing criteria of
validity that distinguishes law from other systems of social rules. Thus,
according to Hart, Dworkin's criticism fails because it mischaracterizes
positivism as providing a criterial explanation of the concept of law.
5. References and Further Reading
Austin, John, Lectures on Jurisprudence and the Philosophy of Positive
Law (St. Clair Shores, MI: Scholarly Press, 1977)
Austin, John, The Province of Jurisprudence Determined (Cambridge:
Cambridge
University Press, 1995)
Bentham, Jeremy, Of Laws In General (London: Athlone Press,
1970)
Blackstone, William, Commentaries on the Law of England
(Chicago:
The University of Chicago Press, 1979)
Coleman, Jules, "Negative and Positive Positivism," 11 Journal of Legal
Studies 139 (1982)
Dworkin, Ronald M., Law's Empire (Cambridge: Harvard University
Press, 1986)
Dworkin, Ronald M., Taking Rights Seriously (Cambridge: Harvard University Press,
1977)
Finnis, John, Natural Law and Natural Rights (Oxford: Clarendon
Press, 1980)
Fuller, Lon L., The Morality of Law, Revised Edition (New Haven:
Yale University Press, 1969)
Fuller, Lon L., "Positivism and Fidelity to Law--A Reply to Professor Hart," 71
Harvard Law Review 630 (1958)
Faber, Klaus, "Farewell to 'Legal Positivism': The Separation Thesis
Unraveling," in George, Robert P., The
Autonomy of Law: Essays on Legal Positivism (Oxford: Clarendon
Press,
1996), 119-162
George, Robert P., "Natural Law and Positive Law," in George, Robert P.,
The Autonomy of Law: Essays on Legal Positivism (Oxford:
Clarendon
Press, 1996), 321-334
Hart, H.L.A., The Concept of Law, Second Edition (Oxford:
Clarendon
Press, 1994)
Hart, H.L.A., "American Jurisprudence through English Eyes: The Nightmare and
the
Noble Dream," reprinted in Hart, H.L.A., Essays in Jurisprudence and
Philosophy (Oxford: Clarendon Press, 1983), 123-144.
Hart, H.L.A., "Book Review of The Morality of Law" 78 Harvard Law
Review 1281 (1965)
Hart, H.L.A., Essays on Bentham (Oxford: Clarendon Press, 1982)
Hart, H.L.A., "Positivism and the Separation of Law and Morals," 71 Harvard Law
Review 593 (1958)
Himma, Kenneth E., "Judicial Discretion and the Concept of Law,"
forthcoming in Oxford Journal of Legal Studies vol. 18, no. 1
(1999)
Mackie, J.L., "The Third Theory of Law," Philosophy & Public
Affairs, vol. 7, no. 1 (Fall 1977)
Moore, Michael, "Law as a Functional Kind," in George, Robert P. (ed.),
Natural Law Theory: Contemporary Essays (Oxford: Clarendon
Press,
1992), 188-242
Raz, Joseph, The Authority of Law: Essays on Law and Morality
(Oxford: Clarendon Press, 1979)
Raz, Joseph, "Authority, Law and Morality," The Monist, vol. 68,
295-324
Raz, Joseph, "Legal Principles and the Limits of Law," 81 Yale Law Review
823 (1972)
Raz, Joseph, "Two Views of the Nature of the Theory of Law: A Partial
Comparison,"
Legal Theory, vol. 4, no. 3 (September 1998), 249-282
Waluchow, W.J., Inclusive Legal Positivism (Oxford: Clarendon
Press,
1994)
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