Legal Luminance: December 2014

To decipher this statement and analyse the validity of its claim I will first consider the points at which natural and positivist legal theories are engaged in fundamentally different projects and solving different problems. Next I will consider the overlaps between the two sets of theories that suggest that they are engaged in the same project and so are more than ships passing in the night. I will then conclude that the positivist and natural law traditions are more than ships passing in the night and in reality although they sometimes take fundamentally different stances on issues of legal theory, common ground can be found where one must subscribe to either the positivist or natural law tradition.

Section 1- Natural Law theory and Positivist Legal theory are ships passing in the night

One difference between positivist and natural law theories is that the positivists separate law and morals whilst the natural law theorists think that law includes at least some moral elements.

Hart accepts the separation of two distinct projects: theorising about law as it is, and about law as it ought to be. He believes that Bentham and Austin were trying to establish that a rule cannot be considered law just because it is moral and a law is not valid because it is moral. Hart then uses this idea to come to the conclusion that there is no necessary relationship between law and morality. This is the ‘separation thesis.[1]’ However, it is arguable that there is an overlap between Hart and the natural legal theorists. Hart thinks that the Rule of Recognition may incorporate moral principles[2], as in the case of the US Constitution[3] where ‘the ultimate criteria of validity incorporate principles of justice or substantive moral values’. However Hart does not say that law must contain moral elements. Hart is a soft positivist[4] so he allows laws and morals to intertwine but does not say that they must and therefore law and morals can stay completely separate. In this way positivism and natural law theory can be aimed at different projects, positivists focus on the law alone whereas natural legal theorists focus on law and morality and inextricably linked fields.

At the other end of the jurisprudential spectrum is Aquinas, a natural legal theorist, who argued that Law is a rule in virtue of which one is led to perform certain actions it binds one to a certain course of action[5]. He argues that law ought to be moral in order to be valid. He explains that human law should ultimately come from the eternal law which is God’s law for all of time. Eternal law[6] is known via divine law[7] which includes all religious manuscripts that enable humans to have access to the law of God. These manuscripts are understood by humans through reason and good human law should include these moral principles[8]. It is through this process of incorporating God’s will and therefore morals into human law that Aquinas explains that law should always contain moral elements. Aquinas emphasizes the fact that just law should oblige the conscience and be aimed at the good of society[9]. However, he makes clear that if law is unjust it does not mean that you automatically should disobey it because this may lead to scandal and that is detrimental to the good of society. This is clearly still relevant today when we experience scandals such as the London Riots of 2011[10]. It is this aspect of Aquinas’ theory that suggests that positivist and natural legal theories are fundamentally different projects and so are not in opposition.

Another clear point of opposition between natural law theory and positivist theories is the distinction between is and ought. Positivist theories aim at a scientific jurisprudence based in logic and describing law as it is, whilst natural law theories are normative and talk about law as it ought to be.

Hume[11] famously stated that you cannot derive a statement about what ought to be from a statement about what is. Essentially this gives rise to the naturalistic fallacy[12] whereby natural law theories confuse ‘is’ and ‘ ought’ statements and are thus illogical. Therefore positivists are careful to make a distinction between what the law is and what the law ought to be.

Few positivists emphasise this distinction more clearly than Hart. Throughout his famous work ‘The Concept of Law’ [13] he is careful to maintain that he is describing the law and not making claims about what the law ought to be. Hart views law as a human creation established through political power and claims to use sociology to explain that how people talk about law shows that law itself is social reality[14]. However, Hart’s claimed sociological view of law has come under fire from Roger Cotterrell[15] whom argues that Hart does not actually distinguish what law is from what law ought to be because he does not actually go out into society and research how people use the term ‘law’. Therefore he is not really performing any kind of sociological research and thus his claim that law is social reality is unproven. Hart is merely stating that law ought to be a social reality and without proof of how the term ‘law’ is used his assertions can only be normative.

Conversely, natural law theorists tend to define law in a normative way. A good example is, the founder of modern philosophy, Plato who devoted an entire series of books known collectively as ‘The Republic’[16] to explaining how the legal system would work in an ideal society. Plato argued that the state should be run by philosopher kings who understand the forms and can reflect them in the law of the land in order to make the perfect society. The forms[17], are immutable and unchanging, eternal versions of everyday objects and concepts. In this way Plato focuses primarily on the normative nature of law by deciding how the perfect legal system ought to function.

Section 2: Natural Legal Theory and Positivist legal theory are engaged in fundamentally the same project and solving the same problems

It can be argued that both natural and positivist legal theories aim at defining the law. For example, the natural legal theorist Fuller sees the basic purpose of law as a:

‘Collaborative and purposive enterprise of placing human conduct under the governance of rules for the purpose of establishing a framework for the peaceful interaction of persons’[18]

Fuller therefore argues that when a rule is practically impossible to follow it is not a law. This could be the case in situations such as that in Nazi Germany where secret rules were left unpublished in order to allow high ranking Nazi soldiers to be authorized to kill Jews[19]. Fuller sees the process of making law as a very important part of making rules that can rightfully be called law. He states in the allegory of Rex[20] that there are desiderata that are minimal conditions but also aspirations for good law. Fuller’s aim is to create requirements of valid laws that help to define laws and a legal system that will be just and not tyrannical.

Hart also tries to define law but makes a point of explaining that the law cannot be defined as a term in itself. Using linguistic philosophy[21], Hart explains that what law is must be defined with reference to the social situations in which the term law is used and the context of the sentence it is in. Whilst this goes some way to undermining the suggestion that positive and natural law theories actually both try and define law because Hart suggests that the term law cannot be defined generally and in itself, it is worth noting that Hart is not denying the need to define law he just does so via a different method to other legal positivists by insisting on the use of linguistic philosophy. Subsequently, Hart does not undermine the view that both positivist and natural legal theories are the same ship both sailing in search of a definition of law.

The final common aim for natural and positivist law theories to mention is the importance that both sets of theories place on justifying the authority of law.

Legal positivist MacCormick[22] justifies the authority of law by saying that the way in which the normative order becomes institutionalised justifies the legal institutions as authorities. MacCormick gives the example of a queue[23]arguing that when a dispute erupts in a queue (for example about whether or not someone can push in to the queue due to an emergency) the first way in which this normative issue (ought one push into the queue?) is institutionalized is through someone adjudicating the dispute between two people in the queue. Next someone in the organisation where people are queuing is given standing authority to adjudicate disputes between people in the queue. Finally, in order to assist that person resolving disputes, and making sure that decisions are consistent, transparent norms will be articulated (for example about conditions that must be fulfilled to allow you to jump the queue). MacCormick argues that it is this process that over time and through people obeying the judgements of the person adjudicating disputes in the queue that the legal institutions gain authority.

From a natural law perspective the authority of law is important and must be justified. Aquinas, for example, argues that law should always be obeyed unless it will result in scandal and thus the common good will no longer be pursued[24]. As mentioned above, Aquinas says that law must oblige the conscience and so law that does not do this does not have the authority to be called law. Aquinas understands the authority and justice of the law to come from laws that serve the common good and not the purpose of the law makers, they must be within the law makers’ powers and in line with divine goodness.

To summarise, it is clear from looking at McCormick and Aquinas that both natural and positivist legal theories recognize the need to justify the authority of the law. In this sense both sets of theories are aimed at the answering the same question and are in opposition and cannot be considered merely ships passing in the night.

Conclusions

To conclude, positivist and natural law traditions are mainly concerned with the same questions and so are more than just ships passing in the night. Although positivists generally subscribe to the separation thesis and many natural law theorists fall into the trap of the naturalistic fallacy, the common aim of the two traditions is working out how law fits into the world we know, whether in connection with morality or not. Positivists are keen to look at what law is whilst natural law theorists focus on law as it ought to be, however, Hart’s misguided use of the term sociology shows that positivism and natural legal theories cannot be easily separated on this issue and so the theorists are sailing the same ship. Both traditions aim to define law despite using a variety of different methods and both place value on justifying the authority of law and legal systems.

[1] Separation thesis- http://plato.stanford.edu/entries/lawphil-nature/ accessed on 05/11/2014 at 19:11

[2]Penner, Schiff and Nobles, Jurisprudence and Legal Theory: Commentary and Materials (Butterworths 2002) Chapter 4 Hart and Analytical Jurisprudence

[3] DeHart, Uncovering the constitution’s moral designs (University of Missouri Press 2007)

[4] Wacks, Understanding Jurisprudence: An Introduction to Legal Theory (1^st edition Oxford University Press 2005) Soft Positivism p70-72

[5] Davies and Stump, The Oxford Handbook of Aquinas (Oxford University Press 2012)

[6] Aquinas, Summa Theologiae la IIae, q91, 1- The Various types of Law

[7] Ibid

[8] Penner, Schiff and Nobles, Jurisprudence and Legal Theory: Commentary and Materials (Butterworths 2002) p 41-42

[9] Ibid

[10] http://www.theguardian.com/uk/london-riots acessed on the 2/11/14 at 14:56

[11] Penner, Schiff and Nobles, Jurisprudence and Legal Theory: Commentary and Materials (Butterworths 2002) p 41 - 42

[12] Hume, Treatise of Human Nature 1739, Book 3 part 1 Section 1

[13] Hart, The Concept of Law (Third Edition, Oxford University Press 2012)

[14] Ibid Chapter 1 – Persistent Questions p 13

[15] Cotterrell, The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy (second edition, Oxford University Press 2003) Sociological Drift p 90-92

[16] Plato, The Republic, 360 BCE

[17] Welton, Plato’s Forms: Varieties of Interpretation (Lexington Books 2002) The Forms as Theory p 3

[18] Fuller, The Morality of Law (Yale University Press 1964) p 30

[19] Lang, An Act and Idea in Nazi Genocide (Syracuse University Press 2003) p 43

[20] Fuller, The Morality of Law (Yale University Press 1964) p 33

[21] Cotterrell, The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy (second edition, Oxford University Press 2003) Hart’s Linguistic Empiricism p83-87

[22] McCormick, My Philosophy of Law, (Edinburgh University Press 1999)

[23] Ibid p 138

[24] Penner, Schiff and Nobles, Jurisprudence and Legal Theory: Commentary and Materials (Butterworths 2002) p42

Legal Luminance

Thursday, 25 December 2014

Legal Luminance -First Christmas

Tuesday, 16 December 2014

‘There is no opposition between legal positivism and natural law theory. They are more like ships passing in the night, i.e. they are engaged in fundamentally different projects and in solving different problems.’

Wednesday, 10 December 2014

Apologies