What Is the Law?
How can we base any stable conception of law on moral notions about which reasonable people are bound to disagree?
Recent debates about the looming appointment of Brett Kavanaugh to the US Supreme Court have once again indicated the depth of disagreementamongst American jurists and politicians about what legal officials should do and which legal interpretations are valid. Should a state have an interventionist Court or a restrained one? Is an interventionist Court one that takes a pragmatic approach to the law, or one that stresses paying attention to the so called ‘original meaning’ of legal texts? The intensity of these debates reflects the power granted to many legal officials in the American constitutional order. At different times, judges have handed down enormously consequential decisions that impact the way civil rights are understood, determine whether or not abortion will be legal and accessible, help us to understand the structure of American democracy, and so on. Americans are not alone in deliberating on these hot button issues—criticism of the power of legal officials, and discussion about what constitutes legitimate legal interpretation, also rage in Canada and on the European continent.
These debates belie deeper and more complex questions about the fundamental nature of human institutions and legal or social rules, which only tend to be made explicit in the relatively new discipline of legal philosophy. Legal philosophy attempts to answer questions about the nature of law: what it is, whether or not a coercive legal system is justifiable, whether or not law is reducible to politics, whether or not there are fundamental connections between law and morality, and so on. On the surface these might appear to be strange questions given the prevalence of law in everyday life, and its aspiration to be a fully objective system of social rules applied by legal officials working in state institutions. But as the debates about Kavanaugh’s appointment indicate, these matters are rarely straightforward. Moreover, our opinions about these foundational questions have practical implications—who should be allowed to interpret the law and what constitutes legitimate legal interpretation are often predicated on deeper, though often implicit, opinions about what law is and how it should operate.
Gideon Scopes
In this short piece, I hope to provide a primer on some of the different philosophical approaches to the law. I will discuss three in particular. The first will be the theory that there is a fundamental connection between law and morality. Traditionally, this has been characterized as a ‘natural law’ approach to legality, although, as we shall see, the situation today is considerably more complex. The second will be the approach of the legal positivists, who believe that there is no fundamental connection between law and morality. The legal positivist approach is perhaps the most well-known and heartily invoked amongst contemporary jurists and commentators, for reasons that I hope will become clear. That said, as we have seen with the openly political rhetoric surrounding who should be appointed to the US Supreme Court and other federal courts, the belief that morality and politics are easily separable from law is perhaps less popular in public discourse than it once was. Part of this may be due to the ongoing influence of the third approach I will discuss, if only briefly. This is the approach of the legal realists and critical legal theorists, who believe that law is invariably driven by politics.
Is Law Fundamentally Connected to Morality?
The claim that there is a fundamental connection between human law and morality is perhaps the oldest of the approaches we will look at. It is perhaps best summarized by St. Augustine’s aphorism that an “unjust law is no law at all.” Originally, most authors who held this position were characterized as ‘natural law’ theorists, and this is still the most common characterization to this day.
Natural law positions have their origins in the work of seminal thinkers from a variety of cultural backgrounds. These thinkers include the Indian Emperor Ashoka, who drew on Buddhist philosophy to argue that rulers have obligations to treat their citizens well; Confucian and Daoist authors, who maintained that a viable state is one that reflects the natural harmony of the world; and Greek thinkers such as Plato and Aristotle, who maintained that laws and customs present in any given state should reflect the universal laws that ideally would apply everywhere. During the Medieval Ages, Scholastic thinkers such as Thomas Aquinas developed complex typologies contrasting human law (which was imperfect), natural law (which was knowable by all through the powers of human reason), and divine law (which was knowable through God’s revelations).
During the early Enlightenment, natural law theory took on a new form. It became less concerned with what human beings are and should do according to nature or God, and increasingly concerned with defending the ‘natural rights of man.’ Perhaps the seminal figure in this tradition was John Locke. In his 1689 essay, Two Treatises on Government, Locke argued that all men possess a set of ‘natural’ rights, such as the right to property, which existed prior to the emergence of the state. The justification for instituting the state was to provide greater protection for these natural rights, since they cannot be adequately upheld in a state of nature. Similar claims were made by the American and French Revolutionaries, who justified their violent overthrow of the status quo by claiming that the states they lived in violated the natural rights of men and citizens.
Interestingly, at the height of its ideological and political influence, natural law approaches to rights also began to come under intense intellectual and philosophical criticism from legal positivists (discussed below). As the early Enlightenment gave way to its mature form in the nineteenth century, natural law doctrines lost ground to legal positivism, which was taken as a more scientific and less mystical approach to understanding the law. Around this time, the notions of what the law is and how it should be applied were separated from the more abstract questions about morality that oriented natural law doctrines. Consequently, legal positivism became the governing outlook of many, if not most, legal officials. This persisted until the twentieth century, when the Nazis justified the horrors of the Second World War by claiming they were simply following the orders of law making officials. Deep disquiet about the consequences of such mindless legalism was one of the fundamental motivations behind the shift towards new doctrines emphasizing that law must be connected in some way to morality.
Perhaps the most important figure in the development of these new doctrines was the philosopher Lon Fuller. As a Professor at Harvard law school, Fuller engaged in a lengthy debate with the legal positivist H. L. A. Hart, an exchange which produced a number of articles and, eventually, Fuller’s seminal book The Morality of Law in 1964. Fuller argued that all legal systems which deserve the name must conform to a certain “internal morality.” This includes conditions such as that the law must apply to all citizens, that it must be publicly known, that it must be free of contradictions, and so on. Fuller argued that legal positivists often regard these as mere logical features of legality, when in fact they express law’s internal morality by demonstrating a degree of concern for integrity and the maintenance of order. The Nazis, who applied different standards to different groups of people, summarily ruled based on political whim, and so were not just treating the law illogically, but deviating from the internal morality necessary for their system to even be called law.
Fuller’s arguments have had an impressive legacy though the work of figures like Ronald Dworkin, who argued in Law’s Empire and other books that legality is fundamentally oriented by a moral quest to secure its integrity. The arguments of Fuller and Dworkin differ substantially from those of classical natural law theorists, who are perhaps best represented contemporaneously by John Finnis. Fuller and Dworkin do not believe there exists a natural law or morality that we must objectively discover and apply through legal reasoning. Instead we must develop a moral legal system through cleaning the law of contradictions which destabilize its consistency and integrity.
An approach that stresses a fundamental connection between law and morality is obviously attractive for many reasons. It provides a great deal of conceptual tools to critique what are sometimes called ‘wicked’ legal systems, such as the Nazi and Apartheid regimes. Moreover, it meshes very well with the intuitive sense many of us have that law must be connected in some way to justice, or else what is the point of a legal system? But this approach is also beset by many problems. Fuller provides a thin conception of the ‘internal morality’ of law that may well be universalizable.
But problems emerge is we attempt to connect law to a more robust moral conception, as Dworkin and Finnis both tried to do. What happens if we cannot agree on these moral conceptions? Must we therefore conclude that the connection between law and morality is bunk, since any attempt to connect the two will be similarly skewed? How can we base any stable conception of law on moral notions about which reasonable people are bound to disagree? Questions like these are what prompted the emergence of legal positivism.
Andrew Kelman
Legal Positivism
Legal positivism is perhaps the most prominent approach to law amongst jurists and commentators today. It is predicated on the belief that the existence (or not) of law is a separate issue from whether or not it is moral. To positivists the job of a legal philosophy is simply to describe what law is, while leaving questions about the morality of this or that legal system to ethicists, activists, and civil society.
Legal positivism’s foundational expression appears in the work of Utilitarian philosopher Jeremy Bentham. Like his contemporary Edmund Burke, Bentham was tremendously hostile to notions of natural law and rights. The whole idea of natural rights, and by extension all natural law, he argued, was simply “nonsense on stilts.” Law was what created rights; they did not exist prior to its existence as Locke thought. John Austin, a disciple of Bentham’s, gave legal positivism its classical expression in his clumsily titled book, The Province of Jurisprudence Determined:
The existence of law is one thing; its merit or demerit is another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry. A law, which actually exists, is a law, though we happen to dislike it, or though it vary from the text, by which we regulate our approbation and disapprobation.
To Austin, positivism had the virtue of simplifying and clarifying the nature of legal inquiry. Law was a collection of commands dictated by a sovereign who was respected because they were backed with coercive force. This sovereign might be illegitimate, or pass bad laws, in which case we may justifiably feel inclined to disobey or rebel. But that wasn’t the issue for understanding what the law is. For that, it is sufficient to describe how a sovereign operates and the commands he issues, and to accept that most people tend to obey out of fear of reprisal.
This doctrine has had an immense influence right up to the present day. On the European continent, Hans Kelsen developed a more Kantian influenced variant of positivism in his book The Pure Theory of Law. This is still held up as a seminal work by those who believe law must be an exact and logical ‘science.’ In the Anglo-American world, the work of Joseph Raz and Scott Shapiro carry on in the more empirical tradition first pioneered by Bentham and Hart. Many positivists disagree about fundamental issues in the law. Some, like Kelsen, believe law is best understood rationalistically and logically. For others, like Hart, law is better understood as a sociological phenomenon. Finally, there are disagreements about the function of law in a society. For Shapiro, law is about executing social and political plans effectively. For Hart, law is about how rules function, whether to forbid or allow, and how and when to confer power. But each remains committed to the idea that law can largely be described without recourse to moral notions (at least beyond what Hart would call a “minimum content”).
Legal positivism has two major virtues. The first is its comparative lack of ambiguity relative to natural law doctrines, which tend to get bogged down in unending disputes about what is moral and immoral. To a legal positivist, law is a descriptive phenomena first and foremost and, up to a point, can be approached in a manner similar to a science. Secondly, contemporary legal positivists do not have to justify any given legal system to its subjects. For Austin, Hart, and Raz, it is quite possible for laws to be immoral. In The Authority of Law, Raz even flirts with the idea that we may not have compelling reasons to obey even a just law.
However, legal positivism also is beset by considerable difficulties. The most prominent are those raised by critics like Fuller and Dworkin. Is it really possible that fundamental legal concepts—such as that law must be publicly known, and that it is wrong to charge someone with a crime that was not a criminal act when they committed it—can be disconnected from morality? Then there is the political question: are we in some way abetting a conservative understanding of what law is by refusing to interpret it in light of political and historical contexts?
Conclusion: The Limits of Legal Philosophy
In the very first article I wrote for Quillette, I discussed legal realism and critical legal theory in some depth. For the sake of brevity, I will only summarize my account here. The position of legal realists, like Oliver Wendell Holmes and Jerome Frank, and critical legal theorists such as Duncan Kennedy and Roberto Unger, is that both natural law and legal positivist philosophers fundamentally misunderstand how we should approach legality. They both believe that the correct approach to law will be characterized by logical consistency, whether between objective morality and black letter law in the case of the natural law philosopher, or description and reality in the case of the legal positivist. By contrast, legal realists and critical legal theorists believe it is far more useful and coherent to avoid such abstract approaches to the law entirely. Instead of stressing the need to develop a logical ‘concept of law’ that applies everywhere, we should look at what actual legal officials do and how any given system of law operates in practice.
Moreover, realists and critical theorists argue we should cease believing that any given interpretation of what law is can be value neutral. For instance, they will point to the following paradox: the belief that value neutrality is a disciplinary virtue is itself not value neutral. It involves a complex evaluative judgement about how we should approach a given study to produce desirable outcomes. This is a fascinating problem I hope to discuss in more detail in a future article.
