An Assessment of the Positivist Critique of the Natural Law Claim that Law and Morality are Inseparable
The central claim in the positivist approach to the place of morality is that the law draws its authority from the legitimacy of the law-making body and that this has nothing to do with morality. So long as certain conditions (varying between philosophers) are fulfilled, such as that the laws this body makes are generally respected, that they are made known for citizens to learn if they wish, and that the specific law was passed according to the correct procedures in that system, it qualifies as an authoritative law. Another way of putting this is that it is the form of the law, solely those factors that are extrinsic to that law itself which determine its authority.
This contrasts with the Natural Law position that the authority of a particular law is dependent not only upon this form but upon the content also. This is why natural lawyers claim that a law prohibits or instructs something in a way that offends grossly against the moral order apprehensible to the human conscience it should be struck down. This defining debate of jurisprudence is much more than a problem of correct terminology; it will be said by the natural lawyer that what the positivist accepts as ‘law’ is in many cases merely legislation, but the real disagreement is whether legislation can be authoritative when separated from morality.
In the following it will be argued that while the positivist critique makes sense of important practical features of the law, a comprehensive analysis must recognise that the rational demands of the Law are prior to the contingencies of any human legal system. The contemporary Natural Law position espoused by John Finnis is followed, and it is shown that he effectively rebuts two key arguments made in favour of the separability of law and morality.
The first thing that needs to be made clear is that for the purposes of this essay it will be assumed that a form of moral realism is true. This is for three reasons: since the Holocaust positivists have largely stopped appealing to moral scepticism for justification and now their central claim tends to be the logical separability of law and morality; forms of moral realism are very defensible today and there is significant enough agreement about the fundamental values of morality for us to assess law-making in moral terms; and it is well outside the scope of the essay to assess the plausibility of moral theories.
The chief reason why natural lawyers insist that the body of the law is necessarily moral is that articulated by Lon Fuller (though he is not representative of the tradition): the law is conceived of as an inherently purposive institution. Statements of law cannot be value free because they exist for normative reasons. The historical reason why there are, and the rational legitimisation of, human legal systems is the existence of a law that exists independently of human institutions. This Law is based upon intrinsic goods and valuable practices which society must respect. A legal system is a necessity because it enables a human community to regulate the pursuit of this common good to all. In legal disputes, appeals to equity and the ‘spirit of the law’ are therefore appeals to this higher law from which that particular legal system derives its authority.
Under this Natural Law understanding, the community –through equal access to the faculty of reason– rises to legitimise the legal system, whereas for the positivist, legal authority is enforced from the government down onto the people. While in both cases the role of the law is heteronymous –acting upon people from outside– the positivist understanding is more susceptible to illiberal abuse by a government. This means that Positivism has practical weaknesses compared to Natural Law: it lacks a systematic drive to improve the standard of justice in the law and is unable to defend individuals against inequitable decisions that appear legally sound.
Positivist theories commonly accept Jeremy Bentham’s distinction between descriptive and normative jurisprudence, and that Natural Law is incorrect to focus so much on the latter- how the law should be. A common line of positivist argument is then to insist that these two areas be kept separate, that the former is adequate to the task of jurisprudence, and that morality has no place in it. This reduction of the law to a purely social phenomenon has been called the social thesis.
Joseph Raz defends what he calls the ‘strong’ variant of the social thesis: that legal validity is derived only from value-neutral social facts. The ‘weak’ variant which he says is defended by ‘soft’ positivists such as H. L. A. Hart, does claim that legal validity is derived solely from social facts but concedes that in every functioning legal system at least some content will be dependent on matters of value. Raz says that this goes too far and threatens the coherence of Positivism. Yet he does allow that agents’ intentions which are based upon moral considerations are judicially relevant, since they remain reasons for their actions.
Raz explains how the strong social thesis works in terms of what he calls the sources thesis. In this he claims that there is one necessary and sufficient condition for legal validity of a law, a source which he calls the ‘social condition’. This is a social fact that determines the content and existence from the legislation and all the necessary interpretative materials without moral argument (but not without moral feelings etc on the part of the drafters).
Raz provides a two-pronged argument for this, which can be presented as a cumulative case in terms of inference to best explanation. Put thus, the claim is that Raz’s sources thesis has the best combination of explanatory scope and power of any hypothesis for explaining the given data of legal validity. The first part is that the thesis explains and systematises three sets of distinctions: that between good decisions according to the legal system and those according to an ethic; that between applying and creating (or ‘discovering’) the law; and that between settled and unsettled law. It is the specifically legal skills of judges which are used in the former category of each of the pairs, so if we accept these distinctions, this carries the implication that morality is extrinsic to the law.
Secondly, not only does the thesis explain these distinctions but it also captures a crucial insight into the nature of the law that is missed by Natural Law explanations. In a democratic state all citizens have the opportunity to change the law via elections, so as they are responsible for justifying the law, it would be wrong of them to excuse their non-conformity by challenging that justification. Indeed, it is a crucial characteristic of the law that each citizen is equally bound to its publically ascertainable standards, and it is likely to cause wide practical problems (perhaps even anarchy) if this function is disregarded.
This second point is neither as important, nor as credible as the first. Even if there were a true democracy it would not mean that anyone would have to agree completely with the outcome, indeed, there is nothing about a democracy that implies that it is unsusceptible to human error. But it is obvious that in most cases there is not a true democracy and minority concerns are likely to be left aside. Moreover, it is such concerns that natural lawyers often point to when illustrating the necessity of moral principles, particularly rights, to legal validity, so it is disingenuous of Raz to preclude these cases.
Even so, his first point here does present a good case that when moral ideas or feelings are involved in the creating of a statute or legal a precedent (as is common where a decision is made on a previously unregulated dispute), the principles involved do not thereby become part of the body of the law. Since those ideas or feelings are not employed in the function of legal argument, they are accidental rather than essential features of the way the law develops. And given the observations made here about the actual functioning of legal systems, it does seem a simpler explanation of why laws are in fact valid than to insist that they need underpinning from a natural order.
There is, however, a much bigger problem with this claim, and this is how there can be a value-free jurisprudence when it is based upon social facts pertaining to human agency, which is a phenomenon to which value-judgements are inherently tied. Moreover, the suggestion that the law ought to be value neutral is itself a moral position (albeit an incoherent one). The only choice we have in this matter is which conceptions of the good will be employed in the law. The attempt to expurgate conceptions of the good will only mean that one ends up sneaking in through the back door, which is far worse than having a particular conception of the good explicitly employed in the law, since at least that one would be subject to rational moral debate, and democratically agreed. And ultimately, legal decisions could not be justified in value neutral terms because the validity of the law has clear and objective normative consequences- we ought to obey it.
Yet Raz does have a substantial response to this charge, he says that “Since one may know what the law is without knowing if it is justified, there must be a possibility of making legal statements not involving commitment to its justification.” To show this he employs the concept of ‘statements from a point of view’, which have become known as detached legal statements. Such statements capture valid legal conduct in an expressionistic sense, i.e. they do not attempt to describe people’s beliefs, attitudes or actions (even those directed upon the law). Insofar as they are acting in their professional capacity, the speaker is not committed to such normative beliefs.
Raz describes what these statements achieve with the example of an omnivore giving advice to a vegetarian about what the latter has reason to avoid doing (or in this case ‘eating’). Although the omnivore does not himself believe that there is a reason for the vegetarian not to eat the thing, it makes perfect sense for him to speak to the latter about what they have reason not to do from their own point of view. And in lieu of this, it seems that Raz’s first argument for separability is a robust one.
Raz’s second argument takes a reductio ad absurdum form and makes a stronger claim still- that it would be impossible for morality to be a necessary condition for the identification of what is lawful. He points out that if it were, not only would proper laws backed by the legitimate authority but deemed immoral have to be recognised as unauthoritative, but morally sound rules originating from ancillary institutions (identical in form to the legal institution but without its authority to be positing laws) would be indistinguishable from law proper. This illustrates that it is social facts about the legal system- namely that the laws it identifies are recognised as such, and not any independent moral judgement which determines the authority of the law.
This argument is delicate and difficult to summarise. It seems bizarre to think, given the difference in the intent of those drafting the different rules, that it’s logically necessary to recognise the rules of related organisations as law. But his point is unrelated to the issue of intent; the only thing we are using to distinguish those institutions is that the true legal one does have legally validating social conditions for its rules. But because this argument hinges upon Raz’s concept of the social condition, if the sources thesis fails then so too does this.
Finnis’ rendering of Natural Law theory aims to clarify what he perceives as a widespread misrepresentation of it in the positivist tradition. Although it can only be touched on briefly here, his theory is simple enough to show why Raz’s detached legal statements do not work and the why his arguments clearly do not defeat the need for a normative understanding of the law.
Finnis says that the problem with Raz’s ‘statements from a point of view’ is that it fails to differentiate between significantly different types of points of view. Raz accepts that any kind of law properly speaking is one that the agent internally recognises as obligatory as an at least presumptively moral ideal. Because this is the most fundamental point of view from which the law can be analysed, it is this viewpoint that should be central to our description of the validity of law.
Taking this central viewpoint against that of Raz, Finnis then refines the ‘presumably moral understanding’ of obligation into one of practical reasonableness- ‘practical reason’ being the human faculty which is prior to deciding the content of moral norms. It can then be seen that within the currently central viewpoint of the agent is the even more central viewpoint of the practically reasonable agent in the situation of being obligated by the law. Now “the theorist cannot identify the central case of the practical viewpoint which he uses to identify the central case of his subject-matter, unless he decides what the requirements of practical reasonableness really are, in relation to this whole aspect of human affairs and concerns.”
That is to say that the attempt made by Raz to escape the need for value judgements by focusing on a particular case in which legal statements are made, collapses in on itself to necessitate the presence of value judgements in the law. This is because the most central viewpoint from which the law is described itself requires normative conclusions to be made on the basis of practical reasonableness. In Finnis’ theory, these are basic principles of practical reasonableness based upon universally intrinsic goods for human beings that are aimed at the realisation and protection of the common good.
Does this mean that laws which aren’t strictly moral are not to be respected? Even if it did, despite that it would cause practical problems, it is begging the question against Natural Law to assume that such rules would be lawful- it is no reason why the position should be wrong. Finnis, however, explains that the true role of this Natural Law (his principles) is to evaluate human laws, not to describe or explain them. Thus, while positivists allege that natural lawyers do not accept that law, described in the peripheral sense of human legal systems, is in fact law, this is not so. When natural lawyers speak of law they most often mean this in the focal sense of the word, which denotes this evaluative rather than descriptive function.
How then do natural lawyers approach the moral justification of the law? In cases where grievances arise which question the equitability (or moral acceptability otherwise) of an area of the law (in the peripheral meaning), Law (in the focal meaning) is considered in the abstract, as an ideal against which actual legal systems are measured. It is only when a law that prohibits or instructs something which offends grossly against the moral order apprehensible to the universal human conscience, and/or where the effects of compliance would be worse than those of non-compliance, that natural lawyers claim it shouldn’t be complied with. In most cases the appropriate course of action is to push for a change in the law through the normal democratic means.
In conclusion, Finnis’ restatement of the Natural Law demonstrates that positivist critique of the claim that law and morality are inseparable fails through both misunderstanding the function of Natural Law theories, and the basic universality of practical reason. On this basis it is more reasonable than not to claim that Natural Law better explains both pragmatic features of legal systems and the relationship between descriptive and evaluative concepts within them.
Davies, Howard & Holdcroft, David, (1991), Jurisprudence: Texts and Commentary, London, Butterworths
Finnis, John, (1980), Natural Law and Natural Rights, Oxford, Oxford University Press
Raz, Joseph, (1975), Practical Reason and Norms, Hutchinson & Co
Raz, Joseph, (1979), The Authority of Law, Oxford, Oxford University Press
Tebbit, Mark, (2005), Philosophy of Law: An Introduction, 2nd Edition, Abingdon (UK), Routledge
 Davies & Holdcroft, (1991), p. 4
 Tebbit, (2005), pp. 45-6
 Raz, (1979), pp. 39-40, in: Davies & Holdcroft, (1991), p. 7
 Raz, (1979), p. 40, in: Davies & Holdcroft, (1991), pp. 7-8
 Raz, (1979), p. 48, in: Davies & Holdcroft, (1991), p. 10
 Raz, (1979), pp. 48-9, in: Davies & Holdcroft, (1991), pp. 10-11
 Raz, (1979), p. 50, in: Davies & Holdcroft, (1991), p. 12
 Raz, (1979), p. 52, in: Davies & Holdcroft, (1991), p. 12
 Raz, (1979), p. 158, Quoted in: Davies & Holdcroft, (1991), p. 15
 Raz, (1979), pp. 153-4, in: Davies & Holdcroft, (1991), p. 13
 Raz, (1975), pp. 175-6, in: Davies & Holdcroft, (1991), p. 14
 Raz, (1979), p. 45, in: Davies & Holdcroft, (1991), p. 9
 Finnis, (1980), pp. 14-5, in: Davies & Holdcroft, (1991), pp. 52-53
 Finnis, (1980), p. 15, in: Davies & Holdcroft, (1991), p. 53
 Finnis, (1980), p. 16, Quoted in: Davies & Holdcroft, (1991), p. 53
 Davies & Holdcroft, (1991), p. 153
 Finnis, (1980), pp. 364-5, in: Davies & Holdcroft, (1991), p. 199