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Published online by Cambridge University Press: 22 April 2016
Legal systems such as those in the United States and Canada, which include fundamental moral rights or provisions in their constitutions, present an interesting and difficult problem for legal positivists. Are such moral standards to count among the existence or validity conditions of laws in those systems, or are they better understood as fundamental objectives or justification conditions which laws may or may not achieve or respect in practice? The first option, known as inclusive legal positivism, expands the traditional positivist separation thesis to mean that although there is no necessary connection between law and morality in general, it is possible that in some systems it is a necessary truth that laws reproduce or satisfy certain demands of morality. The second option, known as exclusive legal positivism, denies this possibility, and maintains instead that it is never a necessary condition that laws reproduce or satisfy certain demands of morality, even if such demands are constitutionally recognized. On the exclusive account, in the context of constitutional states such as the U.S. and Canada, the separation thesis is expanded to mean that there is no necessary connection between the existence and content of laws and the demands of political morality typically included in constitutions. In this paper I defend exclusive positivism and argue that it best follows from traditional positivist commitments and avoids what I take to be a critical problem with inclusive positivism. Further, I argue that the concepts, distinctions, and arguments deployed in the internal positivist debate are also of value in the wider debate between H.L.A. Hart and Ronald Dworkin.
I owe thanks to Nathan Brett, Richard Bronaugh, Ian Clarke, Keith Culver, and Wil Waluchow for comments on various drafts of this paper. I would also like to thank those members of the Canadian Section of the International Association for Philosophy of Law and Social Philosophy who attended the May 29, 2002 meeting at the University of Toronto, Toronto, Ontario, Canada.
1. Dworkin, Ronald, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1978) at 17 [hereinafter TRS].Google ScholarPubMed
2. Hart, H.L.A., The Concept of Law, 2nd ed. (Oxford: Clarendon Press, 1994) [hereinafter CL].Google Scholar
3. The logical distinction between rules and principles, on Dworkin’s account, is that rules function in an ‘all-or-nothing’ fashion whereas principles have a dimension of weight which point to a particular decision but do not absolutely require it. See TRS, supra note 1 at 22–28. Later 1 shall examine this distinction in greater detail. I shall suggest that although a logical distinction does exist between the nature of rules and justificatory principles, Dworkin’s explanation of the distinction is compatible with an exclusive legal positivist account of the role of rules and principles in adjudication.
4. TRS, supra note 1 at 40. This thesis is more fully developed in Dworkin’s Law’s Empire, where he argues that the law is the best moral and political interpretation of legal practice as a whole, which flows from past political and legal decisions and through present and future decisions:
“According to law as integrity, propositions of law are true if they figure in or follow from the principles of justice, fairness, and procedural due process that provide the best constructive interpretation of the community’s legal practice … [Law as integrity] insists that the law—the rights and duties that flow from past collective decisions and for that reason license or require coercion—contains not only the narrow explicit content of these decisions, but also, more broadly, the scheme of principles necessary to justify them.” Law’s Empire (Cambridge, MA: Harvard University Press, 1986) at 225, 227.
5. TRS, supra note 1 at 4.
6. Ibid.
7. Coleman, Jules explains this commitment of inclusive positivism through the use of a distinction between the grounds and content of criteria of legal validity. See his The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory (Oxford: Oxford University Press, 2001) at 107ff.Google Scholar
8. CL, supra note 2 at 204. See also pp. 247, 250, and 269 in the Postscript. It is important to note that Hart also disputes Dworkin’s claim that principles cannot be identified by their pedigree. See CL, supra note 2 at 264–65.
9. Oxford: Clarendon Press, 1994 [hereinafter ILP].
10. ILP, ibid, at 2. Author’s notes omitted; emphasis added.
11. Waluchow’s version of inclusive positivism is what is now referred to as a “necessity version,” in which conformity with morality may be a necessary condition for the existence and validityof law. There is also a “sufficiency version,” whose primary defender is Jules Coleman, in which conformity with morality may be sufficient for the existence and validity of law. For an account of both versions, see Jules Coleman, The Practice of Principle, supra note 7, especially ch. 8. Since my primary concern in this paper is with philosophical theories of law which purport to explain actual legal phenomena, 1 will focus only on necessity versions of inclusive positivism, of the sort contemplated by Hart and extensively defended by Waluchow.
12. Part 1 of The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.) 1982, c. 11. All sections of the Charter cited will be to this Act.
13. ILP, supra note 9 at 154–55.
14. Other easily identifiable moral principles found in the Charter and hence Canada’s rule of recognition (on Waluchow’s account) are a principle of autonomy (section 2 for example) and a principle of due process (sections 7–14).
15. In an earlier article I argue that Waluchow’s account of Charter adjudication leads to counterintuitive implications about the nature of unchallenged laws which are later found to be unconstitutional. See Oiudice, Michael, ‘Unconstitutionality, Invalidity, and Charter Challenges’ (2002) 15 Can. J.Law & Jur. –69.Google Scholar
16. ILP, supra note 9 at 154–55.
17. In what follows I take Hart’s explanation of the rule of recognition to be correct and philosophically illuminating, and simply argue that a constitution or part of a constitution as an example of part of a rule of recognition is mistaken. In other words, although the explanation is correct, the example upon which inclusive positivism depends is fatally flawed.
18. In an otherwise illuminating exercise in the application of Hart’s notion of a rule of recognition to the United States, Kent Greenawalt fails to acknowledge or consider this distinction as applied to official recognition and constitutions. See Greenawalt, , “The Rule of Recognition and the Constitution” (1987) 85 Mich. L. Rev. 621.CrossRefGoogle Scholar The same oversight is committed by Giorgio Pino in “The Place of Legal Positivism in Contemporary Constitutional States” (1999) 18 L. & Phil. 513 at 526, 530.
19. It is important to keep in mind that when talking about the rule of recognition we are talking about the ultimate criterion of validity or the foundation of a legal system.
20. I believe this is substantially the same observation Les Green wishes to make when he writes “…on Hart’s theory the rule of recognition is not to be identified with the constitution but with the practices of recognition that are expressed when the constitution is applied. For whether a written constitution is a source of law is also a question for whose answer we must turn to the rule of recognition.” See Green, “The Concept of Law Revisited” (1996) 94 Mich. L. Rev. 1687 at 1706.
21. ‘Practice’ or ‘custom’ here means, as it did for Hart, the convergence of behaviour and critical reflective attitude (internal point of view).
22. Joseph Raz provides an excellent account of why we should not identify rules of recognition with constitutions in his “On the Authority and Interpretation of Constitutions: Some Preliminaries” in Alexander, Larry, ed., Constitutionalism: Philosophical Foundations (Cambridge: Cambridge University Press, 1998) at 160–62.Google Scholar It also seems reasonable to argue that since constitutions are law, which means they satisfy some condition of validity, they cannot therefore be part of an ultimate rule of recognition, which is itself not valid but simply ‘shown’ or ‘accepted’ by citizens and especially officials. See Hart, CL, supra note 2 at 101–10.
23. If this argument is successful, as I think it is, then it also rules out sufficiency versions of inclusive legal positivism.
24. CL, supra note 2 at 94–95. Emphasis added.
25. It is also, of course, practised by norm-subjects who use the rule to make wills.
26. To be more specific, these are officially recognized ways of recognizing law, and so can also be understood as officially recognized practices or rules of change and adjudication. So, for example, although 1 speak of enactment as a form of official recognition, strictly speaking it is not rules of enactment that determine legal validity (because rules of enactment are themselves rules of law), but rather official recognition of rules of enactment is what ultimately determines legal validity. This is simply a continuation of the above analogy between my hypothetical rule of wills and the Charter.
27. Of course, this is not to suggest that constitutional law such as the Canadian Charter of Rights and Freedoms is not a special and important kind of law. To borrow a term coined by Waluchow, Charter arguments have a particularly high degree of institutional force in Canadian law. For Waluchow’s account of institutional force, see ILP, supra note 9 at ch. 3, “The Forces of Law.”
29. Raz, Joseph, “The Inner Logic of the Law” in Ethics in the Public Domain: Essays in the Morality of Law and Politics, rev. ed. (Oxford: Clarendon Press, 1996) at 242.Google Scholar
30. [1998] 1 S.C.R. 493. Recently, Andrei Marmor has also observed that laws which make the validity of other laws depend on certain moral or political considerations, such as the moral provisions one often finds in constitutions, are best understood in terms of Raz’s notion of a directed lawmaking power. See Marmor, Positive Law and Objective Values (Oxford: Clarendon Press, 2001) at 67–69.
31. R.S.A. 1980.
32. In “Unconstitutionality, Invalidity, and Charter Challenges,” supra note 15,1 provide a more detailed analysis of how the courts change the law in Charter cases.
33. Supra note 15 at 79ߝ81. Recently Dworkin has dismissed, without argument, the above view of judicial review as simply ‘counterintuitive’. See Dworkin, Ronald, “Thirty Years On” (2002) 115 Harv. L. Rev. 1655 at 1675.CrossRefGoogle Scholar I hope I have at least shown that such a view cannot simply be rejected outright as ‘counterintuitive’
34. I owe thanks to Wil Waluchow for bringing this objection to my attention.
35. CL, supra note 2 at 185–86.
36. I intend this claim to be substantially a restatement of Raz’s Sources Thesis which states: “A law has a source if its contents and existence can be determined without using moral arguments (but allowing for arguments about people’s views and intentions, which are necessary for interpretation for example). The sources of a law are those facts by virtue of which it is valid and which identify its content.” See Raz, , The Authority of Law: Essays on Law and Morality (Oxford: Clarendon Press, 1979) at 47–48.CrossRefGoogle Scholar On my account, sources of law are simply the different forms of official recognition. In other words, a law has a source if and only if it is officially recognized.
37. Just as I argued in “Unconstitutionality, Invalidity, and Charter Challenges,” supra note 15 at 80–81, that unconstitutionality and invalidity are conceptually separate but certainly contingently connected, justification conditions and existence conditions are certainly contingently connected as well. For example, finding or deciding that a law has failed to satisfy certain important justification conditions is often good enough reason to take that law out of existence. However, this is not done automatically, but requires either an official act such as judicial invalidation or Parliamentary repeal, or official omission or non-observance (desuetude). In both instances the taking out of existence of law depends on the actual practice of officials.
38. CL, supra note 2 at 185–86.
39. A central reason driving the separation thesis is the ready availability of historical examples of morally iniquitous laws. Hart also observes the reason that there is nothing to be gained in theoretical studies of law by excluding the possibility of morally iniquitous laws in our concept of law. CL, supra note 2 at 209.
40. It is important to note that 1 am not the only one who thinks that expansion of the separation thesis is possible and indeed theoretically desirable. For example, Brian Tamanaha has recently argued that the separation thesis ought also to mean that there is no necessary conceptual connection between the existence of a legal system and its efficacy or general obedience. See Tamanaha, , “Socio-Legal Positivism and a General Jurisprudence,” (2001) 21 Oxford J. Leg. Stud. 1.CrossRefGoogle Scholar
41. TRS, supra note 1 at 22.
42. Ibid, at 24, 27. It is important to note that positivists have challenged the understanding of the application of rules as an ‘all-or-nothing‘ matter. See Hart, CL, supra note 2 at 262, and 53n.
43. TRS, supra note 1 at 2.
44. Ibid, at 28–29. Emphasis added.
45. However, it is important to remember that Dworkin does not consider that the creation of new rules of law based on justifying principles of political morality amounts to the creation of new law. However, it seems hard to deny that precedent-setting cases amount to the creation of newlaw. Consider that future courts rely on precedents, lawyers advise their clients on the basis of precedents, and legislatures may refrain from modifying laws themselves if a court has already decided the issue.
46. Dworkin’s observation plays a crucial role in his careful rejection of conventionalism and legal pragmatism in Law’s Empire, supra note 4. It is also important to note here that Raz’s notion of a directed law-making power shows Dworkin’s identification of two weak senses of discretion and a strong sense of discretion to be a false trichotomy. As Dworkin argues, the exercise of weak discretion is constrained by binding standards (which may require judgment and a final say) but does not involve the creation or ‘invention’ of new law. Strong discretion, on the other hand, is not constrained by any standards and does result in the creation of new law. However, the notion of a directed law-making power combines elements of both weak and strong discretion. Directed powers alert us to the possibility that judges (or any other official) may be constrained by binding standards (i.e., by the objectives of the law-making powers) but will nonetheless also be making or creating new law. For Dworkin’s account of discretion see his “The Model of Rules I,” supra note 2. For a response along the lines I suggest see Raz, , “Legal Principles and the Limits of the Law” in Cohen, Marshall, ed., Ronald Dworkin and Contemporary Jurisprudence (Totowa, NJ: Rowman and Allanheld, 1983)Google Scholar and “Dworkin: A New Link in the Chain“ (1986) 74 Cal. L. Rev. 1103.
47. Dworkin, Ronald, Freedom’s Law: The Moral Reading of the American Constitution (Cambridge, MA: Harvard University Press, 1996) at 7.Google Scholar
48. Briefly, Dworkin defines the ’democratic conditions‘ of government and laws as those conditions which must obtain if majority decision-making is to be morally legitimate or fair. The democratic conditions take the defining aim of democracy to be that “collective decisions be made by political institutions whose structure, composition, and practices treat all members of the community, as individuals, with equal concern and respect.” Ibid, at 17.
49. Two other similarities between the exclusive positivist explanation of constitutional rights and principles and Dworkin’s account bear mention. First, just as Raz observes that directed lawmaking powers are constraining and limiting in the latitude they give judges to develop and change law, Dworkin notes that the ‘moral reading’ the American constitution demands also disciplines the power judges have to expand and interpret anew constitutional rights and requirements. (Dworkin also acknowledges that judges may abuse their power, in cases where they fail to observe the recognized principles or direction the law is to take.) Ibid, at 10–12, 37. Second, it is interesting to note that Dworkin also finds it useful to distinguish between unconstitutionality and invalidity in his account and defense of judicial review. Ibid, at 5, 17, 18, 33,34. So although Dworkin may wish to continue to deny the possibility or utility in distinguishing between the existence of law and its evaluation, he can be seen again to rely on just such a distinction.
50. Raz also notes that directed powers may be exercised where the direction or content of the law or rule to be created is precisely or clearly determined by existing law. See his “The Inner Logic of the Law,” supra note 28 at 242–43.
51. Waluchow, ILP, supra note 9 at 3.
52. The meta-theoretical debate could also be framed in terms of essentialism and conventionalism. While Dworkin accepts the view that legal philosophers must identify the essence or purpose of law, positivists reject such an approach with the view that law has no one essential purpose, but is thoroughly conventional and multi-purposed. For contributions to the meta-theoretical dimension to the Hart-Dworkin debate, see Waluchow, ILP, supra note 9 at ch.2, “Theories and Conceptions,” and Keith Culver, “Leaving the Hart-Dworkin Debate” (2001) 51 U.T.L.J. 367.
53. Although I do not wish either to endorse or deny (as Bentham and others do) that there are objective principles of natural law, discoverable by appeal to human reason alone, it is also important to note that principles of natural law also figure as justification conditions of law in natural law theory. In natural law theory, particular laws or legal systems either have or lack moral obligatory force depending on whether they properly instantiate or embody the principles of natural law.
54. Constitution of Iran.
55. See Culver, Keith, “Legal Obligation and Aesthetic Ideals: A Renewed Legal Positivist Theory of Law’s Normativity” (2001) 14 Ratio Juris 176.CrossRefGoogle Scholar
56. Tamanaha, Brian, A General Jurisprudence of Law and Society (Oxford: Oxford University Press, 2001) at 145–48.Google Scholar
57. Ibid, at 148. Tamanaha’s example is also interesting for the fact that it shows, contrary to Austin’s and Hart’s view, that efficacy or general obedience is not in fact an existence condition of law, but is a culturally contingent value of legal systems.
58. The purpose of this section has not been to attempt a comprehensive list of possible justification conditions of law or legal officials, but rather to show that the distinction between existence and justification conditions of law, and the notion of official recognition, can be useful as a conceptual backdrop to anthropologists, sociologists, or historians in their investigations and explanations of law and society across cultures and times.
