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On the Separability of Law and Morality

Published online by Cambridge University Press:  20 July 2015

Matthew H. Kramer
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Extract

If there is one doctrine distinctively associated with legal positivism, it is the separability of law and morality. Both in opposition to classical natural-law thinkers and in response to more recent theorists such as Ronald Dworkin and Lon Fuller, positivists have endeavored to impugn any number of ostensibly necessary connections between the legal domain and the moral domain. Such is the prevailing view of legal positivism among people familiar with jurisprudence. During the past couple of decades, however, that prevailing view has come into question among some estimable legal positivists. In particular, Joseph Raz and his followers have queried the importance and the very tenability of an insistence on the separability of law and morality. The present article maintains that the traditional view of legal positivism is correct and that the recent skepticism about it on the part of some positivists is unfounded. When the notion of the disjoinability of law and morality is understood properly as a large array of theses, it proves to be resistant to the challenges that have been mounted against it.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 17 , Issue 2 , July 2004 , pp. 315 - 335
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2004

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References

1. Gardner, John, “Legal Positivism: 5_ Myths” 46 (2001) Am.Juris, J.. 199 at 223 Google Scholar, emphasis in original, footnote omitted [hereinafter Gardner, “Myths”].

2. Leslie Green suggests that somebody who insists on the separability of law and morality will be obscuring the fact that law is not a non-moral phenomenon. See Green, Leslie, “Legal Positivism” in Zalta, Edward, ed., Stanford Encyclopedia of Philosophy (Stanford, CA: Stanford University Press, 2003)Google Scholar. URL = http://plato.stanford.edu/archives/spr2003/entries/legal-posi-tivism/. However, as I have endeavored to emphasize in my In Defense of Legal Positivism (Oxford: Oxford University Press, 1999) at 122-25, 189-91, 200-04 [hereinafter IDLP], such a suggestion is inapposite. When legal positivists insist on the separability of law and morality, they are referring to morality in three senses: morality contrasted with immorality, morality contrasted with prudence, and morality contrasted with factuality. They are not also adverting to a division between moral matters and non-moral matters, and they are therefore not submitting that law belongs on the non-moral side of such a division. That is, nobody has ever maintained that legal norms and decisions have no significant bearing on the interests of the people affected by them. Nor, consequently, has anyone ever maintained that legal norms and decisions are not appropriately subject to moral appraisal. Silly theses asserting the non-moral character of law can be eschewed, and are eschewed, by theorists who affirm the separability of law and morality. We can easily see as much when we disentangle the different ways in which morality is to be understood.

3. Hart, H.L.A., “Positivism and the Separation of Law and Morals” in Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983) 49 CrossRefGoogle Scholar [hereinafter Hart, “Positivism”].

4. Hart, H.L.A., “Introduction” in Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983)1 at 6 CrossRefGoogle Scholar [hereinafter Hart, “Introduction”].

5. See, e.g., Hart, H.L.A., The Concept of Law (Oxford: Clarendon Press, 1961) at 198–99 Google Scholar [hereinafter Hart, Concept].

6. See, e.g., Hart, H.L.A., “Lon L. Fuller: The Morality of Law ” in Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983) 343.CrossRefGoogle Scholar Gardner, cleaving to a narrow conception of legal positivism, appears to endorse a Fullerian position. Gardner, , “Myths” 210 at 226 Google ScholarPubMed. He cites the tepid approval of Fuller’s stance in Hart’s early work, but he omits to mention that Hart accepted Fuller’s claims chiefly in order to remark that their truth “is unfortunately compatible with very great iniquity” in a legal system ( Hart, , Concept at 202 Google Scholar). Nor does Gardner note that Hart later ex Pressed grave misgivings about the line of thought that had led him in his early work to an unenthusiastic alignment with Fuller. See Hart, , “Introduction” at 18.Google Scholar

7. See, e.g., Detmold, Michael, The Unity of Law and Morality: A Refutation of Legal Positivism (London: Routledge & Kegan Paul, 1984)Google Scholar; Beyleveld, Derycke & Brownsword, Roger, “The Practical Difference Between Natural-Law Theory and Legal Positivism” (1985) 5 Oxford J. Leg. Stud. 1 at 2 n.1Google Scholar; Moore, Michael, “Law as a Functional Kind” in George, Robert, ed., Natural Law Theory: Contemporary Essays (Oxford: Clarendon Press, 1992) 188 at 198 Google Scholar; Soper, Philip, The Ethics of Deference (Cambridge: Cambridge University Press, 2002) at ch. 4 [hereinafter Soper, Ethics]CrossRefGoogle Scholar. See also Dworkin, Ronald, “A Reply by Ronald Dworkin” in Cohen, Marshall, ed., Ronald Dworkin and Contemporary Jurisprudence (London: Duckworth, 1984) 247 at 256-60.Google Scholar

8. For an overview of the debate between Exclusive Legal Positivists on the one hand and Inclusive Legal Positivists and Incorporationists on the other, see Bix, Brian, “Patrolling the Boundaries: Inclusive Legal Positivism and the Nature of Jurisprudential Debate” (1999) 12 Can. J. Law & Juris. 17Google Scholar. See also Bix, Brian, Jurisprudence, 3rd ed. (London: Sweet & Maxwell, 2003) at 47–50 Google Scholar. My own contributions to the debate heretofore are “How Moral Principles can Enter into the Law” (2000) 6 Legal Theory 83; “Throwing Light on the Role of Moral Principles in the Law: Further Reflections” (2002) 8 Legal Theory 115; “On Morality as a Necessary or Sufficient Condition for Legality” (2003) 48 Am. J. Juris. 53. See also IDLP at 114-15, 152-61, 197-99.

9. Coleman, Jules L., The Practice of Principle: In Defence of a Pragmatic Approach to Legal Theory (Oxford: Oxford University Press, 2001) at 104 Google Scholar n.4 [hereinafter Coleman, Principle].

10. See Coleman, Jules L., “Negative and Positive Positivism” in Markets, Morals and the Law (Cambridge: Cambridge University Press, 1988) 3 at 12Google Scholar. See also Coleman, Jules L., “Authority and Reason” in George, Robert, ed., The Autonomy of Law: Essays in Legal Positivism (Oxford: Clarendon Press, 1996) 287 at 316 n.5.Google Scholar

11. See also Himma, Kenneth Einar, “Law’s Claim of Legitimate Authority” in Coleman, Jules L., ed., Hart ‘s Postscript (Oxford: Oxford University Press, 2001) 271 Google Scholar at 286 (“[I]t is the emphasis on law’s conventionality that distinguishes positivism from other conceptual theories of law”); Himma, Kenneth Einar, “Ambiguously Stung: Dworkin’s Semantic Sting Reconfigured” (2002) 8 Legal Theory 145 at 166 Google Scholar (“[T]he view, which represents the theoretical core of legal positivism, [is] that the grounds of law are exhausted by conventional criteria of legal validity”); Himma, Kenneth Einar, “Substance and Method in Conceptual Jurisprudence and Legal Theory” (2002) 88 Va. L. Rev.1119 at 1152 Google Scholar (“The most fundamental of positivism’s core commitments is the idea that law is, in essence, a social creation or artifact”).

12. I develop this point at length in IDLP at 204-09, 254-307.

13. See Raz, Joseph, Ethics in the Public Domain (Oxford: Clarendon Press, 1994) 201 Google Scholar [hereinafter Raz, Ethics]. On the one hand, this denial by Raz has been quite persuasively impugned in Himma, Kenneth Einar, “The Instantiation Thesis and Raz’s Critique of Inclusive Positivism” (2001) 20 L. & Phil. 61.Google Scholar On the other hand, Himma’s critique is forceful insofar as its target—the aforementioned denial—is linked to Raz’s particular conception of authoritativeness. The critique would cease to be compelling if that denial were instead linked to the general notion of authoritativeness (as opposed to Raz’s particular conception thereof). A Soperian natural-law theorist could and would opt for the latter way of fleshing out the denial, rather than for the Razian way.

14. For a discussion of Hart’s views on the matter, see IDLP at 81-83. For my own views, see ibid at 78-112. Soper later suggests that “[statements of legal obligation are at most only statements about what one ought to do, not statements about the [moral] obligations that subjects have” (Soper, Ethics at 90). However, is his discussion at that subsequent juncture is puzzling in itself and is inconsistent with his earlier analyses, which admittedly deny that statements of legal obligations are statements of content-independent moral obligations but which affirm that they are indeed statements of moral obligations.

15. See Raz, Joseph, Practical Reason and Norms, rev. ed. (Princeton, NJ: Princeton University Press, 1990) at 162-69Google Scholar [hereinafter Raz, Reason].

16. Raz, Joseph, The Authority of Law (Oxford: Clarendon Press, 1979) at 38–39.Google Scholar

17. Raz, Joseph, “On the Nature of Law” (1996) 82 Google Scholar Archiv für Rechts- und Sozialphilosophie 1 at 16 n.17.

18. I have elsewhere described the sort of constitutive connection that is operative between the heinous effects and the beneficial effects. See Kramer, Matthew, The Quality of Freedom (Oxford: Oxford University Press, 2003) at 280 CrossRefGoogle Scholar: “S1 amounts to S2 if S2 is entailed by the combination of S1 and some aspect(s) of the prevailing circumstances other than any causal laws.”