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Published online by Cambridge University Press: 09 June 2015
A legal theory, any legal theory, necessarily adopts one of two perspectives or vantages or points-of-view. The author of a legal theory may take up the internal, engaged vantage or the external, detached vantage. If he seeks to explore, say, how judges should decide hard cases then his theory, explicitly or implicitly, will adopt an internal participant’s perspective. Most likely, he will be putting himself in the shoes of the judge (or alternatively, asserting that we are all judges of a sort) in order to convince others of how best this role can be performed. Less likely, will be he who is a revolutionary and who thinks that the judge should decide cases in such a way as to contribute to the subversion of the legal system. In either event, both will be prescribing. Prescription, answering the ‘ought’ and the ‘should’, presupposes an involvement in the question and a concern with some evaluative dispute (though the revolutionary clearly does not accept the norms of his legal system as binding).
1. This paper is meant to explore certain methodological questions about the nature of legal theories. It is not meant as an exegetical analysis of any particular thinker. For that reason, amplified by my own personal stylistic preference, footnotes have been kept to a minimum. I do not believe, however, that I am making any unusual or controversial attributions in what follows.
2. David Hume, A Treatise of Human Nature. L.A. Selby-Bigge, ed., 2nd ed., rev. by P.H. Nidditch, (Oxford: Oxford University Press, 1978), the last paragraph of Book III i l, 469–70 (italics in the original). For a full discussion of Hume’s is/ought dichotomy see V.C. Chappell, ed., Hume (London: Macmillan, 1966), in particular Maclntyre’s chapter from 240.
3. H.L.A. Hart, The Concept of Law. 2nd ed. by P.A. Bulloch & J. Raz (Oxford: Clarendon Press, 1994)—hereinafter ‘Hart’—at Preface, v.
4. One need not urge the conceptual separation of ‘law as it is’ and ‘law as it ought to be’ solely on the Hartian basis that it facilitates moral criticism of the law as it is. For instance, one might be a moral sceptic and dispute the existence of any non-subjective, non-contingent moral reality. In that case, positive law would be distinct in that it, at least, exists. Both these justifications for separating law and morality are arguably present in O.W. Holmes, Jr.’s famous article “The Path of the Law” (1897) 10 Harv. L. Rev. 457.
5. For a full examination of the merits of Dworkin’s response to external scepticism see my “Legal Interpretation and the Separation of Law and Morality: A Moral Sceptic’s Attack on Dworkin” (1997) 26 Anglo-American L. Rev. 405.
6. Richard Kay, “Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses” (1988) 82 Northwestern L. Rev. 226 at 264 (citation omitted).
7. Hart at 240.
8. I should mention that not all legal and moral theorists today do in fact concede the validity of Hume’s Law. There are a few who still say that objective moral truths can be deduced from natural facts. I do not agree. But this paper is not the place to run through, again, the arguments supporting Hume’s Law. Those interested can start with Chappell’s book, supra note 2.
9. That said, I think the Finnis-type attempt to show that moral norms can be objective, in the sense of independent of contingent human desires, fails. For an excellent dissection of the Finnis-type argument, which details closely why it fails, see Jeffrey Goldsworthy, “Fact and Value in the New Natural Law Theory” (1996) Am. J. Juris. 21. See also my own A Sceptical Theory of Morality and Law (New York: Peter Lang, 1998) at 193–201.
10. Goldsworthy, ibid at 25 (italics in the original).
11. This is true of sceptics, in my view, whatever their theory of the meaning of moral statements-in-use may be. (That is, whether a sceptic think that the statement ‘X is wrong’ reports a feeling of disapproval, simply expresses disapproval, or asserts, erroneously, some objective truth, it is still the case that what is happening in the external, causal world—according to the sceptic—is that a person is having a feeling. Feelings constitute the ‘ought’ for sceptics.) In my view, theories of meaning do not somehow filter across and change what is actually happening in the external, causal world. For a full length treatment of moral scepticism and how it affects legal theory see my A Sceptical Theory of Morality and Law, supra note 9.
12. Boswell reported Samuel Johnson as having scornfully remarked that “Hume is a Tory by chance…. If he is anything, he is a Hobbist.” For the various sources of this remark see Paul Russell, “A Hobbist Tory: Johnson on Hume” (1990) 16 Hume Studies 75 at 80.
13. See my “Positively Fabulous: Why it is Good to be a Legal Positivist” (1997) 10 Can. J. L. and Juris. 231. The sort of second-order legal positivism there dubbed ‘normative positivism’ is related to the sort of second-order normative claims I discuss below.
14. Hart at Preface, v.
15. See Hart at 102, 115 and passim. Although Hart stated explicitly that “… it is not even true that those who do accept [a particular legal] system voluntarily must conceive of themselves as morally bound to do so….” (Hart. 203, italics added), he nevertheless earlier in the book was, in my opinion, ambiguous in his use of the verb “accept”. Must an official “approve” of the legal rule to apply and administer it? Or could that official apply and administer it while disapproving, even strongly disapproving, of it—and so be “accepting” it in a weak sense compatible with the motives of fear and self-interest alone? There are indications of conflicting answers in Hart, though for me the latter seems evidently to be the better description of reality. See too Frederick Schauer, Playing by the Rules (Oxford: Clarendon Press, 1991) at 121–22 and Joseph Raz, The Authority of Law (Oxford: Clarendon Press, 1979) at 153–57.
16. Hart at 244.
17. It has been pointed out to me that this may be an unduly optimistic claim. For instance, in more scientific areas of research such as medical research a great deal of work is done in the hope of being first to discover something. But at the same time the researcher knows that, with so many others pursuing similar lines, odds are the object of his research will be discovered whether it is he himself who discovers it, or someone else a bit later. Hence the researcher’s motive cannot easily be understood in terms of the goodness or worthwhileness of what he does. It seems more directly related to personal prestige, or comfortable living, or conference funding, or support for his research team.
18. See Hart and his discussion of the ‘minimum content of natural law’ at 193–200. See also infra note 19.
19. Hart claimed that given observable human nature (namely, limited altruism) and the observable lack of material resources (i.e., wants greatly outstrip goods), and assuming that like most others one wanted to survive, then for humans to live together in society there must necessarily be social rules against violence, theft and deception. (This is an empirical assertion, of course.) But such rules need have no necessary content. They need not be fair or just or treat all people formally equally. Indeed these rules could be compatible with what we today would think are the greatest of evils. All that was necessary was that some rules, in fact almost any rules, should exist, hence Hart’s label, ‘the minimum content of natural law’. Arguably Hart’s ‘minimum’ claim, being an empirical claim about the need for rules to live in society, is a bit weaker than the sort of logical claim I am making here in the main text.
20. Hart at 243.
21. I have suggested elsewhere, see supra note 13 above, that the moral sceptic, for example, may be more inclined than the moral objectivist to adopt the external, detached vantage.
