Legal Theory Lecture 7 The Critique of Legal Positivism Descriptive Critique of Positivism – LP provides an incomplete account of what law is Political Critique of Positivism – LP provides a politically dangerous understanding of what law and legal practice involve Law is that set of social rules comprising primary rules which regulate behaviour and associated secondary rules which establish practices, mechanisms and institutions by which to determinatively recognise, change, adjudicate and enforce the legal rules. Law comprises a set of primary rules backed by institutions of law-making, adjudication and enforcement (execution) established by secondary rules. Primary legal rule - regulating behaviour CTH CRIMES ACT 1914 - SECT 28 Interfering with political liberty Any person who, by violence or by threats or intimidation of any kind, hinders or interferes with the free exercise or performance, by any other person, of any political right or duty, shall be guilty of an offence. Penalty: Imprisonment for 3 years. Secondary legal rule(s) – establishing a rule of recognition for the Commonwealth Comprises (in part) the various Cth Constitutional provisions and other associated statutory provisions, regulations, standing orders, conventions etc establishing a Parliament (s.1), granting it legislative powers on a range of topics (s.51), regulating its membership (s.44), regulating its procedures (ss.39, 40), and so on. A social rule which exists in a given jurisdiction as a result of social practices carried out in accordance with the rule(s) of recognition for that jurisdiction is a valid legal rule (legislation or a legislative provision) of that jurisdiction. Similar rules of recognition exist for executive and judge- made laws. What makes s.28 of the Cth Crimes Act a (valid) primary legal rule in Australia? First, it meets the requirements of being an obligatory social rule (required degree of general compliance, required degree of critical reflective attitude, perceived importance to society, etc.) Second, it meets the requirements for being a legal rule set down by the rule(s) of recognition operative within Australia – it was enacted and is presently maintained by authorised officials according to officially (and generally) recognised procedures, and so on. This is to say that it satisfies the kind of statutory validity analysis you learned in APL. Social morality is that set of socially important primary rules governing human behaviour which does not have an associated set of secondary rules by which to determinatively recognise, change, adjudicate, and enforce the primary rules. Features of a Social Morality or Moral Rule Considered important to social well-being Uncertain – no rules by which to definitively determine what is moral (what is a moral rule) and what is not Static - immune from deliberate and immediate change Inefficient – no authoritative agency (person or institution) empowered to ascertain finally and authoritatively the identity of the moral rules and the fact and consequences of violation Non-organised and generally non-coercive sanctions Law possesses a set of institutions of recognition, change, adjudication and enforcement which morality does not possess. This feature of law is potentially of both great benefit and great risk per Hart, Waldron and Green. Law may be an instrument serving the welfare and interests of all of a society‟s members both generally and in times of social, environmental, and technological challenge or threat. Law may also be an instrument serving the interests of only some of a society‟s members against the interests of the rest. Which way law goes here depends importantly on which set of the society‟s members has ultimate control over its secondary rules and institutions of law-making, execution and adjudication (the institutions of state). All that is necessary for secondary rules to operate within a society is for there to be substantial compliance with those rules by relevant officials (legislators, government, public service, police, armed forces, intelligence etc.) If relevant officials are co-opted by some group within a society (by coercion, threat, material benefits, education, etc) then that group will have control over the operation of the secondary rules and institutions and thereby over the content and operation of the primary rules regulating the rest of the society‟s members. This is an enormous amount of power. Given the nature of humans (some good some bad) and the nature of law this situation is always a possibility in any human society. Possibility of: Autocracy – rule by one person Monarchy – rule by a royal social class Plutocracy – rule by the rich Technocracy – rule by a technologically literate and skilled elite Bureaucracy – rule by officials Martial law - rule by the military Majoritarianism – rule by a political majority Democracy – rule by (all) the people Secondary rules also pose a risk of alienating many people from their law (primary and secondary). This aggravates the risk of the co-option of law by an elite because the people are not sufficiently informed about the workings of the law and the state which governs them. Ignorance of law and government aggravates the risk of oppression by means of law and government. Note the many institutions in our society established to address this problem – including the legal profession itself. Note your responsibility to society as someone who is not alienated from and ignorant of law and government. Hart and Waldron argue that adopting a positivist understanding of law enables the people of a society (or some sub-group of people) to always be aware (at least) of both the benefits and the risks that their legal system holds for them. This renders people more able to effectively respond should the law be used by others against their interests. For Waldron, Hart and contemporary legal positivism offer not merely a descriptively superior account of law but also a politically superior account for liberal democrats. Specifically, legal positivism is a superior theory of law (both descriptively and politically) when compared with contemporary natural law theories Note the compatibility of Hart‟s theory of law with the views of many critical legal theorists. Hart‟s model of a legal system may provide a basis for a critique of some or all legal systems. Unlike, certain critical theorists Hart is not arguing that all legal systems or any given legal system (ours, for example) are oppressive or unjust. He is just pointing out that they might be. Whether they are or not is to be decided by empirical research into those legal systems. But also see the critique of Hart and Legal Positivism by the critical theorists Young and Davies Contemporary Natural Law Theory and the Critique of Positivism Inseparability thesis (NL) - there is a necessary (fundamental) connection between positive law and some specific set of moral, religious or other normative principles/values. Separability thesis (LP) - there is no necessary (fundamental) connection between positive law and any specific set of moral, religious or other normative principles/values. Classical NL view – positive law that does not reflect the specific tenets of the divine or natural law is not „really‟ law at all. Hence, it does not impose (legitimate) legal obligations for citizens or officials (they are under no legal (or moral) obligation to obey such law). These natural law „rules‟ are generally conceived of as being somehow independent of or external to the positive law. Contemporary NL view – all positive law necessarily embodies a specific set of natural law norms (moral/political principles) without which it is not „really‟ law and does not impose (legitimate) legal obligations upon citizens and officials. These natural law norms are not external to the positive law (contra classical NL) but are somehow inherent in law and legal systems. Hart‟s Minimum Content of “Natural Law” If a society is to survive as a viable society (and not be a “suicide club”) then its legal system must contain certain minimal standards as rules (minimum content of natural law). Law must contain rules which impose constraints on: Interpersonal violence Theft and destruction of personal or communal property (resources) Breaking of agreements between people “Such universally recognised principles of conduct which have a basis in elementary truths concerning human beings, their natural environment, and aims, may be considered the minimum content of Natural Law…” Hart p.189. These basic standards serve as further existence conditions for the ongoing existence (survival) of a legal system. Hart‟s point is not that a legal system should embody these basic standards as a moral or religious matter but rather that one that does not will as a matter of fact not survive for very long. Hart is making a descriptive point, not a normative one in the classical NL sense. The standards in question are factual existence conditions and not independent moral standards imposing independent obligations on us. These standards impose no obligations on us independently of the legal obligations of the positive law and, therefore, play no independent role in the deliberations of citizens or officials about whether they should obey the positive law or not. Is Hart‟s use of the term „natural law‟ for these standards misleading? Is this a concession to natural law theory? Is it a problem? Why? Lon Fuller on Law In addition to the existence conditions which Hart identified, a legal system must also embody certain additional „moral‟ standards (the inner morality of law) without which it is not „really‟ a legal system and does not impose (legitimate) legal obligations upon its subjects. Fuller’s 8 Requirements of Law In a proper legal system the laws must be: General, not ad hoc Published Prospective, not retroactive Intelligible Consistent Capable of being complied with Enduring without undue changes Applied in the administration of society. Why are these requirements of law „moral‟? "For Fuller the legal obligation to obey laws does not automatically follow from their enactment by an [officially] recognised, formal procedure [Rule of Recognition]. It depends on the legal system's claim and ability to command what Fuller calls fidelity to law. When certain minimum moral qualities cease to exist in a legal system, it ceases to command fidelity [and] ceases to have a claim to citizens' obedience". Cotterill. OED – Fidelity - the quality of being faithful For Fuller a legal system must constitute a set of rules which its subjects can not merely comply with but also (to some degree) have faith in, believe in, accept etc. In order for people to have faith in a legal system it must have a minimum moral content as far as its subjects are concerned (and preferably more than this). "The order and coherence of a legal system (its ability to function) depend on a minimum moral content. Without this it ceases to be a legal system at all". Fuller Fuller's minimum or inner morality of law is largely procedural, "relating to the way law is created, expressed, interpreted and applied rather than to any particular substantive content of legal rules". Query this. A legal system which maintains certain procedural/moral defects cannot command the fidelity of a subject people and, therefore, cannot have authority over them. "The authority of law (its capacity to demand fidelity) derives from a moral understanding between rulers and ruled, such that citizens accord moral respect to the constitution [secondary rules] which governs them as necessary, right and good". Fuller Where the inner morality of law is substantially breached by the State "there can be no moral understanding between rulers and ruled. The ruled have no chance to orient themselves to the dictates of the ruler's authority. Although they must obey, they are not given a reasonable chance to do so in an orderly and rational manner". Fuller "To me there is nothing shocking in saying that a dictatorship which clothes itself with a tinsel of legal form can so far depart from the morality of order, from the inner morality of law itself, that it ceases to be a legal system. When a system calling itself law is predicated upon a general disregard by judges of the terms of the laws which they purport to enforce, when this system habitually cures its legal irregularities, even the grossest, by retroactive statutes, when it has only to resort to forays of terror in the streets, which no one dares challenge, in order to escape even those scant restraints imposed by the pretence of legality - when all these things have become true of a dictatorship, it is not hard for me, at least, to deny it the name of law". (Fuller - Harvard LR article at 660) There is some ambiguity in Fuller‟s work about the nature of law‟s inner morality. On occasions he implies that a legal system must also embody certain liberal democratic values and fundamental human rights in order to gain the fidelity of its subjects. The more morally good a legal system is the more fidelity it will gain – the more truly legal it is. Questions Is Fuller‟s inner morality of law merely another set of descriptive existence conditions for law? Is Fuller just another kind of positivist? Is Fuller correct here as a descriptive matter about the existence conditions of law? What did Hart say about the need for the population at large to respect (give fidelity to) the legal rules in order for them to be maintained in the society? Who is right on this point – Hart or Fuller? Is Fuller correct to describe his requirements as moral? Does a legal system need more than these procedural requirements to command the fidelity of its subjects? Must it have some substantive moral content – certain basic human rights, for example? See Dworkin and Dyzenhaus on this. Couldn‟t a morally evil regime operate in accordance with these procedural requirements? Wouldn‟t these requirements make the operation of that regime even more effective? How are they then moral? Fuller‟s Political Critique of Legal Positivism If law is understood as merely a matter of positive rules (and not moral or political values) and if the role (legal obligation) of a judge, official or lawyer is understood as being to interpret and apply the law to a dispute or situation, then it follows that a judge, official or lawyer is not legally justified in relying upon moral or political values in performing their role. Compliance with their legal obligation involves compliance with the positive rules and nothing else, no matter how unjust or immoral those rules are. By separating legal and moral obligation, positivism enables officials to avoid taking a moral-political critical stance in relation to the law they apply. Positivism encourages officials to believe that the practice of law and the exercise of public power is a neutral matter of identifying and applying the rules without reference to questions of morality or the moral content of those rules. LP encourages lawyers and officials to not let their normative concerns inform their practice. No place for a lawyer/judge to question the morality of law within the legal system itself. This encourages a moral-political conservatism and quietism within the legal sphere. This aggravates the risk of evil laws being imposed upon the people and disempowers an important institutional obstacle to injustice. The legal system can offer no opposition to injustice if it embraces legal positivism. See also Davies and Young on this point. Compare this argument to Waldron‟s contrary argument about the political benefits of embracing positivism. Which argument is more plausible? Why? A further problem of positivism, say natural law and other critics, is that citizens may be erroneously led to think that the moral and political views of judge, official or lawyer are not playing a role in judicial, official and legal practice, when in fact they are. This aggravates the risks a legal system poses towards its subjects. Positivism is ideological, in this sense If law is understood as merely a matter of positive rules (and not moral or political values) and if from a legal standpoint the role of a citizen is understood as being to obey the law, then it follows that from the legal standpoint that a citizen is not legally justified in disobeying the law in the service of some set of moral or political values. We may want the legal system to make room for legitimate civil disobedience in some cases from time to time. If law is understood as merely a matter of positive rules (and not moral or political values) and if law schools are understood as being designed to teach students the nature and practice of law, then there is no room in a law school for subjects which call for reflection upon the moral or political status of law Waldron‟s Political Critique of Natural Law Theory By associating the very idea of law with a certain set of desirable moral or procedural norms, Fuller and other natural law theorists encourage citizens and officials to believe that law is necessarily a good thing and, therefore, that the positive law they have is a good thing. This, in turn, encourages citizens and officials to let their moral-critical „guard‟ down in relation to the positive law and to adopt a disengaged or passive approach to law and the state. This, in turn, heightens the risk of the positive law coming under the control of judges, officials or some other group. By conflating legal obligation with moral obligation, Fuller and the natural lawyers leave citizens nowhere to stand when seeking to take a moral-political critical stance in relation to the positive law. For Hart, "to say that a rule is a valid law (judged by positivist standards) merely asserts the existence of legal obligation. Whether one ought morally to disobey an unjust law is a matter about which positivist analytical jurisprudence can remain uncommitted, for moral issues are not within its province". For Fuller, Hart's view "is unrealistic and dangerous. It oversimplifies the problems of obligation under a manifestly unjust regime and it sets up an unreal opposition - a legal obligation to obey as against a moral obligation to disobey - as if one can keep them separate. It assumes that there can be order in a legal system without there being any moral content in it". 2 issues: 1. Can one keep separate one‟s legal and one‟s moral obligations? 2. Can there be an entirely immoral legal system or a legal system without any moral content? "Modern positivists take it to be a virtue of their theory that the sharp distinction between what law is and what law ought to be makes it a visibly open question whether citizens are morally bound to carry out their obligations" Campbell in Davies n.29. Questions on the Political Dispute Between LP and its Critics Who is correct in their ethical/political critique of the other? Do both sides have a point? Are both sides misguided about the faults of the other? What are the responses of each to the critique of the other? Which approach is the most plausible for you? Why? Use the analysis of this argument between Legal Positivists and Natural Lawyers to develop your capacity to understand and critique theoretical arguments, as well as other arguments in general. What are the ultimate positions or conclusions of the theorists in question? What reasons do they offer in support of these conclusions? What evidence or reasons do they offer in support of these reasons? Is their supporting evidence or reasoning plausible or persuasive? Why? What are the strong and weak points of their argument? Overall, then, how do their arguments stand up to scrutiny?