Legal Positivism

Tom D. Campbell

• Publisher: Routledge
• Year: 2016
• eBook ISBN: 9781351922425
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

Despite persistent criticism from a variety of different perspectives including natural law, legal realism and socio-legal studies, legal positivism remains as an enduring theory of law. The essays contained in this volume represent the most balanced responses toward legal positivism and although largely sympathetic, the essays do not fail to criticize elements of the tradition wherever appropriate.

Part I
Separability, Sources and Rules

[1]
AUTHORITY, LAW AND MORALITY¹

H. L. A. Hart is heir and torch-bearer of a great tradition in the philosophy of law which is realist and unromantic in outlook. It regards the existence and content of the law as a matter of social fact whose connection with moral or any other values is contingent and precarious. His analysis of the concept of law is part of the enterprise of demythologising the law, of instilling rational critical attitudes to it. Right from his inaugural lecture in Oxford² he was anxious to dispel the philosophical mist which he found in both legal culture and legal theory. In recent years he has shown time and again how much the rejection of the moralizing myths which accumulated around the law is central to his whole outlook. His essays on “Bentham and the Demystification of the Law” and on “The Nightmare and the Noble Dream”³ showed him to be consciously sharing the Benthamite sense of the excessive veneration in which the law is held in Common Law countries, and its deleterious moral consequences. His fear that in recent years legal theory has lurched back in that direction, and his view that a major part of its role is to lay the conceptual foundation for a cool and potentially critical assessment of the law are evident.

This attitude strikes at the age old question of the relation between morality and law. In particular it concerns the question whether it is ever the case that a rule is a rule of law because it is morally binding, and whether a rule can ever fail to be legally binding on the ground that it is morally unacceptable. As so often in philosophy, a large part of the answer to this question consists in rejecting it as simplistic and misleading and substituting more complex questions concerning the relation between moral worth and legal validity. Let us, however, keep the simplistic question in mind because it helps to launch us on our inquiry.

Three theses with clear implications concerning the relation between law and morality have been defended in recent years. They can be briefly, if somewhat roughly, stated as follows:

The Sources Thesis: All law is source-based.

The Incorporation Thesis: All law is either source-based or entailed by source-based law.

The Coherence Thesis: The law consists of source-based law together with the morally soundest justification of source-based law.⁴

A law is source-based if its existence and content can be identified by reference to social facts alone, without resort to any evaluative argument. All three theses give source-based law a special role in the identification of law. But whereas the parsimonious Sources Thesis holds that there is nothing more to law than source-based law, the other two allow that the law can be enriched by non-source-based laws in different ways. Indeed the Coherence Thesis insists that every legal system necessarily includes such laws.

The main purpose of this essay is to defend the Sources Thesis against some common misunderstandings⁵ and to provide one reason for preferring it to the other two. The argument turns on the nature of authority, which is the subject of the first section. In the second section some of the implications of this analysis are shown to be relevant to our understanding of the law. Their relation with the three theses is then examined. The connection between law and authority is used to criticise Dworkin’s support of the Coherence Thesis, as well as the Incorporation Thesis advocated by H. L. A. Hart and others. The rejection of these views leads to the endorsement of the Sources Thesis. The essay concludes with some observations concerning the relations between legal theory, law and morality. Throughout the argument is exploratory rather than conclusive.

1. Authority and Justification

Authority in general can be divided into legitimate and de facto authority. The latter either claims to be legitimate or is believed to be so, and is effective in imposing its will on many over whom it claims authority, perhaps because its claim to legitimacy is recognised by many of its subjects. But it does not necessarily possess legitimacy. Legitimate authority is either practical or theoretical (or both). The directives of a person or institution with practical authority are reasons for action for their subjects, whereas the advice of a theoretical authority is a reason for belief for those regarding whom that person or institution has authority. Though the views here expressed apply to theoretical authorities as well, unless otherwise indicated I shall use “authority” to refer to legitimate practical authority. Since our interest is in the law we will be primarily concerned with political authorities. But I shall make no attempt to characterize the special features of those, as opposed to practical authorities in general or legal authorities in particular.

The distinction between reasons for action and reasons for belief may be sufficient to distinguish between practical and theoretical authorities, but it is inadequate to distinguish between authorities and other people. Anyone’s sincere assertion can be a reason for belief, and anyone’s request can be a reason for action. What distinguishes authoritative directives is their special peremptory status. One is tempted to say that they are marked by their authoritativeness. This peremptory character has often led people to say that in accepting the authority of another one is surrendering one’s judgment to him, that the acceptance of authority is the denial of one’s moral automony, and so on. Some saw in these alleged features of authority a good deal of what often justifies submitting to authority. Many more derived from such reflections prove that acceptance of authority is wrong, or even inconsistent with one’s status as a moral agent. Elsewhere⁶ I have developed a conception of authority which accounts for its peremptory force while explaining the conditions under which it may be right to accept authority. Let me briefly repeat the main tenets of this conception of authority. Its details and the arguments in its support cannot be explored here.

Consider the case of two people who refer a dispute to an arbitrator. He has authority to settle the dispute, for they agreed to abide by his decision. Two features stand out. First the arbitrator’s decision is for the disputants a reason for action. They ought to do as he says because he says so. But this reason is related to the other reasons which apply to the case. It is not just another reason to be added to the others, a reason to stand alongside the others when one reckons which way is better supported by reason. The arbitrator’s decision is meant to be based on the other reasons, to sum them up and to reflect their outcome. He has reason to act so that his decision will reflect the reasons which apply to the litigants. I shall call reasons of the kind which apply to the arbitrator dependent reasons. I shall also refer to his decision as a dependent reason for the litigants. Notice that in this second sense a dependent reason is not one which does in fact reflect the balance of reasons on which it is based. It is one which is meant to, i.e., which should, do so.

This leads directly to the second distinguishing feature of the example. The arbitrator’s decision is also meant to replace the reasons on which it depends. In agreeing to obey his decision the disputants agreed to follow his judgment of the balance of reasons rather than their own. Henceforth his decision will settle for them what to do. Lawyers say that the original reasons merge into the decision of the arbitrator or the judgment of a court, which, if binding, becomes res judicata. This means that the original cause of action can no longer be relied upon for any purpose. I shall call a reason which displaces others a preemptive reason.

It is not that the arbitrator’s word is an absolute reason which has to be obeyed come what may. It can be challenged and justifiably disobeyed in certain circumstances. If, e.g., the arbitrator was bribed, was drunk while considering the case, or if new evidence of great importance unexpectedly turns up, each party may ignore the decision. The point is that reasons that could have been relied upon to justify action before his decision cannot be relied upon once the decision is given. Note that there is no reason for anyone to restrain their thoughts or their reflections on the reasons which apply to the case, nor are they necessarily debarred from criticising the arbitrator for having ignored certain reasons or for having been mistaken about their significance. It is merely action for some of these reasons which is excluded.

The two features, dependence and preemptiveness, are intimately connected. Because the arbitrator is meant to decide on the basis of certain reasons the disputants are excluded from later relying on them. They handed over to him the task of evaluating those reasons. If they do not then reject those reasons as possible bases for their own action they defeat the very point and purpose of the arbitration. The only proper way to acknowledge the arbitrator’s authority is to take it to be a reason for action which replaces the reasons on the basis of which he was meant to decide.

The crucial question is whether the arbitrator’s is a typical authority, or whether the two features picked out above are peculiar to it and perhaps a few others, but are not characteristic of authorities in general. It might be thought, for example, that the arbitrator is typical of adjudicative authorities, and that what might be called legislative authorities differ from them in precisely these respects. Adjudicative authorities, one might say, are precisely those in which the role of the authority is to judge what are the reasons which apply to its subjects and decide accordingly, i.e., their decisions are merely meant to declare what ought to be done in any case. A legislative authority on the other hand is one whose job is to create new reasons for its subjects, i.e., reasons which are new not merely in the sense of replacing other reasons on which they depend, but in not purporting to replace any reasons at all. If we understand “legislative” and “adjudicative” broadly, so the objection continues, all practical authorities belong to at least one of these kinds. It will be conceded of course that legislative authorities act for reasons. But theirs are reasons which apply to them and which do not depend on, i.e., are not meant to reflect, reasons which apply to their subjects.

The apparent attractiveness of the above distinction is, however, misguided. Consider, e.g., an Act of Parliament imposing on parents a duty to maintain their young children. Parents have such a duty independently of this Act, and only because they have it is the Act justified. Further argument is required to show that the same features are present in all practical authorities. Instead let me summarise my conception of authority in three theses:

The Dependence Thesis:

All authoritative directives should be based, among other factors, on reasons which apply to the subjects of those directives and which bear on the circumstances covered by the directives. Such reasons I shall call dependent reasons.⁷

The Normal Justification Thesis:

The normal and primary way to establish that a person should be acknowledged to have authority over another person involves showing that the alleged subject is likely better to comply with reasons which apply to him (other than the alleged authoritative directives) if he accepts the directives of the alleged authority as authoritatively binding and tries to follow them, than if he tries to follow the reasons which apply to him directly.⁸

The Preemption Thesis:

The fact that an authority requires performance of an action is a reason for its performance which is not to be added to all other relevant reasons when assessing what to do, but should replace some of them.

The first and the last theses generalise the features we noted in the arbitration example. The Normal Justification thesis replaces the agreement between the litigants which was the basis of the arbitrator’s authority. Agreement or consent to accept authority is binding, for the most part, only if conditions rather like those of the normal justification thesis obtain.

The first two theses articulate what I shall call the service conception of authority. They regard authorities as mediating between people and the right reasons which apply to them, so that the authority judges and pronounces what they ought to do according to right reason. The people on their part take their cue from the authority whose pronouncements replace for them the force of the dependent reasons. This last implication of the service conception is made explicit in the preemption thesis. The mediating role of authority cannot be carried out if its subjects do not guide their actions by its instructions instead of by the reasons on which they are supposed to depend. No blind obedience to authority is here implied. Acceptance of authority has to be justified, and this normally means meeting the conditions set in the justification thesis. This brings into play the dependent reasons, for only if the authority’s compliance with them is likely to be better than that of its subjects is its claim to legitimacy justified. At the level of general justification the preempted reasons have an important role to play. But once that level has been passed and we are concerned with particular action, dependent reasons are replaced by authoritative directives. To count both as independent reasons is to be guilty of double counting.

This is the insight which the surrender of judgment metaphor seeks to capture. It does not express the immense power of authorities. Rather it reflects their limited role. They are not there to introduce new and independent considerations (though when they make a mistake and issue the wrong decrees they do precisely that). They are meant to reflect dependent reasons in situations where they are better placed to do so. They mediate between ultimate reasons and the people to whom they apply.

2. Authority and the Law

I will assume that necessarily law, every legal system which is in force anywhere, has de facto authority. That entails that the law either claims that it possesses legitimate authority or is held to possess it, or both. I shall argue that though a legal system may not have legitimate authority, or though its legitimate authority may not be as extensive as it claims, every legal system claims that it possesses legitimate authority. If the claim ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• Series Preface
• Introduction
• Part I Separability, Sources and Rules
• Part II Rules and Authority
• Part III Prescriptive Positivism
• Part IV Revisiting The Classical Positivists
• Name Index