I confess that, over the past few years, I have lost almost all interest in esoteric jurisprudential debates. My position, which I believe at this point to be essentially unshakeable, is that nothing in the universe depends on whether one adopts a positivist or an anti-positivist approach. There does not exist a conceptual debate to be had, but merely the adoption of different schemata—different languages, if you like—to describe exactly the same features of the social universe in pretty close to the same way. The main thrust of this essay is to defend this idea. There’s a secondary point here as well, touched upon in what follows, but not defended as explicitly—that a significant danger in conceptual jurisprudence is when positivists use their positivist concept of law or natural lawyers a natural law concept of law to do substantive work by definitional fiat. Hopefully our discussion will illustrate some of the ways that might occur and the importance of guarding against the problem.
Back to our major point, concerning the illusoriness of any real ‘concept of law’ debate. Take an example. In a recent blog post, Conor Casey and Adrian Vermeule open with the statement that:
A standard set of claims, common to both classical lawyers and Dworkinians, is that the interpretation of positive legal rules inevitably rests on express or implied arguments from political morality (in particular, for the classical lawyer, the subset of political morality bearing on legal justice), and that positive rules are inevitably under-determinate, due to the inherent limits of language and of lawmakers’ foresight.
I have no disagreement with this claim. The reason I'm posting it is to note that no jurist would seem to dispute it. In analytical jurisprudence, the clearest statement that positive rules run out because of law’s inherent “open texture” and that those engaged in legal interpretation have no choice but to fill in the gaps with positive morality is found not in Finnis, the classical lawyer, or Dworkin, the interpretivist. It is found in positivist HLA Hart’s The Concept of Law. Metaphors expressing the same point--that positive law can do more than construct something of a frame or fence around the universe of possible alternatives, with the interpreter free to accept any interpretation within the confines of the frame—are just as clearly found in the work of fellow positivist Hans Kelsen’s Introduction to the Problems of Legal Theory. Schmitt, whose jurisprudence somewhat straddles the line between positivism and anti-positivism (a claim I have no room to defend here) expressed the same point a similar way: legal rules are not major premises, which subsume fact patterns like the minor premises of a syllogism. Something else, an act of decision by the interpreter, must be added to the premises to yield a unique conclusion.
What positivists generally do, as opposed to the natural lawyer or Dworkinian, is deny the outputs of f(positive law, political morality) the status of ‘law’. They generally deny that there exists an f(x, y, …) function which encompasses legal interpretation, because the law often runs out and allows for more than one output for a given set of inputs. Compare with Dworkin’s right answer thesis, which is, in essence, a claim that f(x, y) exists with a domain of all legal problems which arise within the context of the system, where x and y represent the positive legal sources and principles of true political morality. This disagreement is because the positivist and the natural lawyer (I will leave Dworkin aside to focus on only two frameworks, although he more fully resembles the natural lawyer for most purposes here) generally have very different analytical frameworks from which the concept of ‘law’ arises.
Take as our starting point Aquinas’s famous definition: law “is nothing else than an ordinance of reason for the common good made by him who has care of the community, and promulgated.” The rhetorical focus here is on law’s status as an “ordinance of reason,” showing continuity with other domains of practical reasoning, such as moral and theological reasoning. Legal reasoning, then, is no more than a sub-species of the kind of practical reasoning one might otherwise encounter in a seminar on theology or moral philosophy.
For Aquinas and the classical law tradition, law is separated from the rest of practical reasoning because it bears a special relationship to positive law. The definition takes this track: law is not merely an ordinance of reason. That is practical reasoning, full stop, at least on a plausible interpretation of Aquinas. Law is the reasoning of “one who has care of the community,” and particularly the reasoning of such persons which is “promulgated.” This places two other features within the Aquinasian definition: authority and positive enactment. Authority is part of the definition because not everyone’s practical reasoning has the force of law, but only those who are empowered by the norms of a given legal community to create positive legal obligations through their acts of volition. Positive enactment is important, because not everything the legal authorities think about morality or God is part of the law. Only those exercises of their practical reason which are effectuated through positive enactment—through a purposive act of incorporating them into the law of the community—are law.
Aquinas thus provides us with three features of law, and a certain priority is placed between them. Most importantly, law is a part of practical reasoning—law which isn’t an exercise of practical reason for the benefit of the entire legal community, natural lawyers would remind us, is not law at all. The other two features tell us how law is a different part of practical reasoning than moral theory, and they thus have a secondary role in the definition as line drawers.
This pedantic reading of one sentence of Aquinas has a point. Exactly these same three features of law play into the positivist account of law. However, the order of priority is reversed, indeed, to the extent that positivism takes great pains to expel one from the pure concept of law entirely. For standard positivist accounts, descending from Hobbes and Bentham, law is a system of rules or commands which owe their force to possessing a certain kind of pedigree. As a matter of sociological fact, there exists some person, set of persons, or institutional arrangement which has the power to issue directives with binding force. We here, then, recapitulate the same idea of authority as central to the concept of law that we see in Aquinas.
For the positivist, positive enactment—promulgation—is also central in much the same way as it is for Aquinas. When the king demands that a servant bring his dinner, this is not law, at least not under usual circumstances. Law again consists only of those directives which are promulgated through certain institutional forms. Here we have the central part of the relationship for most positivists. In contrast, the connection between law and practical reason is moved from first place into a distant third. To the extent that we focus on the sociological aspect of law, to the way that law functions in the life of a society, directives which were arrived at by nothing like a university seminar on moral theory have the binding force of law in exactly the same fashion as the best reasoned ordinance for the common good. A command made through proper institutional forms by a king acting only from greed, or from malice toward a political foe, or from nothing more than the ravings of a madman will, again under standard circumstances, be interpreted by the courts and executed by the sheriff in the same way as a law arrived at through the deliberations of a well-meaning, Platonic philosopher king. Because poorly reasoned and immoral law is still ‘law’ in this sociological sense, the aspect of sound practical reasoning takes a backseat in the positivist framework, with positivists sometimes insisting that it is not part of ‘law’ in the truest sense at all. (I have written elsewhere--and my parenthetical comments on Davidson below suggest my view—that it’s impossible to fully expel practical reason from the picture. We can, however, get quite far, and positivism at least seems to suggest that ‘doing law’ in the pure sense entails taking us as far as it’s humanly possible to go.)
We thus see that standard positivist accounts greatly diminish the priority of practical reasoning for law. We further see that they have reasons for this. To the extent that we think of law as a social phenomenon, or as a social artifact, or as something like this, there is little difference between a law arrived at through practical reasoning and one which is arbitrary from the moral point of view. The positivist thus tends to minimize or even eliminate the practical reasoning aspect of law. Yes, the judge should prefer morally right resolutions to cases to morally wicked ones, but even morally wicked resolutions are ‘law’ in the sociological sense just discussed. As Austin famously (and crudely) reminded us, the criminal who (even rightly) explains to us that the criminal ‘law’ of which he was convicted was morally wicked will hang from the neck in the same way as the criminal convicted under a more just law. The positivist thus says that, when a judge picks the morally right interpretation over the morally wrong one, this is something the judge should do which stands external to the ‘law’ game. This is because the framework prioritizes the authority aspect of law in the way already described.
We do not really have a dispute here. We have different aspects of the same phenomena being emphasized through different conceptual schemes—two different sets of definitions for the same words looking at the same thing and using the same utterances to emphasize different features of what we see. The classical lawyer chooses to see law through a conceptual apparatus which makes it easier to conceptualize and discuss law’s connection to theology and moral philosophy, but which deals in morally iniquitous law and the authority which posts it only through a set of circumlocutions such as “perversions of legal form.” The positivist chooses to see law through a conceptual apparatus which makes it easier to conceptualize and discuss law’s connection to empirical domains such as sociology and political science, at the cost of severing practical reason from the picture—but precisely because throwing practical reason into the picture does very little to advance relevant questions in sociology and political science.
There are reasons, of course, to prefer a frame which ties together law and practical reasoning, even from the sociological point of view, reasons the positivist must try to see things the natural lawyer’s way. This is because, for empirical questions, it is often relevant that some laws will be obeyed freely, others only with grumbling from those bound by them, and still others not at all, with or without overt, violent resistance to legal authorities. Not yet mentioned, important to the concept of law, is a fourth aspect: efficacy. Some commands will translate into norms actually obeyed by the legal community, and others will not. A sociological concept of law might very easily foreground efficacy, above, say, posited authority, and insist that a law no one obeys is not ‘law’ even if it is part of a valid statute which was never repealed. Whether this makes sense depends on the research questions to which the relevant conception of law is to be put and the discursive games in which it is to be employed, not anything about a fundamental nature of ‘law’ existing in the realm of Platonic forms.
Focusing on efficacy, those commandments will be obeyed is a function with many inputs. One crucial input is that laws which greatly go against the ordinary moral and religious sensibilities of citizens will likely be obeyed only to the extent that legal authorities command sufficient violence (and a sufficient capacity for detecting noncompliance) to discourage disobedience. We might wonder why some statutes or royal decrees never manage to find themselves enforced by the courts or obeyed by citizens the way that laws typically are—which are not really ‘laws’ in the fullest sociological sense—and a complete account here requires recourse to an analysis of the moral sensibilities of the relevant community. (NB: I say ‘moral sensibilities of the relevant community,’ not true morality: the two are not likely to be coextensive, and ‘true morality’ is beside the point for most sociological inquiries.). The answer has to be at least in part that there exists a causal relationship between the practical reasonableness aspect of law and the efficacy aspect of law, and this makes throwing practical reasonableness completely outside the concept of law a dangerous game even for those interested primarily with empirical questions.
This is part of the reason that I tend to prefer the non-positivist frame of conceptualizing law, but this is essentially a reason of conceptual simplicity. As a social theorist, I am interested in how law interacts with ethical norms and other sources of conventions of conduct. Sometimes law and these other sources are mutually reinforcing. Sometimes they compete with interesting results. The affinity between law and other forms of practical reasoning is here the entire subject of inquiry, and it often makes sense to speak in a way which does not sever the bonds between the two.
Just as importantly, the positivist anti-practical reasoning stance throws much of what lawyers are doing when arguing in court and judges are doing when they write their opinions completely outside the game of ‘doing law,’ again, precisely because those parts of ‘doing law’ are not related to hierarchical authority in the way that’s so important to traditional positivist jurisprudence. This discrepancy between practice and terminiology is the reason that Dworkin explicitly adopts in the introduction to Law’s Empire: the positivist account does not comport with using ‘law’ to refer to the things that lawyers and judges spend their time doing or that private citizens do when they argue about what the Constitution says as applied to given fact patterns. Political morality here is not outside the game that people ‘doing law’ are playing, and Dworkin sought to advance an alternative theory which does not throw what lawyers do outside of law. Importantly, though, the positivist has no more difficulty analyzing legal phenomena than the non-positivist, although he might use more words to say the same thing. At some point, for at least some research questions, practical reason will eventually enter the picture. This does not, as the natural lawyer may claim, render the positivist a natural lawyer, any more than ceding the point that, sometimes, wicked royal decrees are actually obeyed by people and enforced by the courts of law turns the natural lawyer into a positivist. The difference in analytical frames is not that only the natural lawyer can make sense of the connection between law and morality or that only the positivist can make sense of morally iniquitous law. The difference is, in part, one of aesthetic preferences and, otherwise, one of which research questions one finds most interesting, insofar as one conceptual apparatus or another provides a simpler vernacular for addressing those questions.
I confess that I still sometimes intervene in jurisprudential disputes, despite my near-total conviction that these disputes are pointless. The legitimate reason to do this, I think, is to impose a sense of analytical clarity. In making a moral or empirical argument, one must be careful that he does not load his conclusions into his contested definitions of the terms used. Stipulated definitions can do no substantive work, in either moral theory or social science. Equally importantly, there are no substantive points to be scored by noting that the other side must have some terminology to cope with what it casts outside the pure definition of law if it is to make sense of the empirical world. Casey and Vermeule seem to come close to this problem when they note that, even though originalists seem to throw moral considerations out of the definition of law (as a positivist would), they still include moral considerations in an account of what judges do in hard cases. From the positivist framework, utilizing discretion in a morally acceptable way is something that lawyers should do that isn’t core to the concept of ‘practicing law,’ just as lawyers really should be polite to the judges before whom they appear, even if politeness to judges is not part of the definition of what it means to be a lawyer. Whether this way of speaking makes sense or not is, again, purely a question of the uses to which the concept of ‘law’ at issue can be put. Nothing of substance turns on it.
A final point on the Casey and Vermeule essay with which we began. They conclude by suggesting that the reason to prefer a (positivistic) originalist approach boils down to “concern for undermining law’s stability, or co-ordination function, or other institutional goods — goods that, in our view, have already been left by the wayside in the class of cases that require recourse to ‘closure rules.’” My essay should have strongly suggested that the core reason for adopting the positivist frame should be none of these, but something more conceptual--because it makes the most sense of law as a hierarchical system of authority, operating on principles of command and obedience. It more easily makes sense of how what the Framers or legislature directed is, sociologically, ‘law’ no matter how much we disagree with it on grounds of practical reason. Just as the positivist can explain the connection between legal efficacy and practical reasonableness without becoming a natural lawyer, the natural lawyer can make sense of morally bad law through recourses to distinctions like ‘law simpliciter’ versus ‘perversions of law’. For present purposes, recall my argument that the positivist framework more easily makes sense of law as a system of a command—more easily, that is, with less modification of the core concepts of the conceptual apparatus needed.
This hierarchical system, with a certain kind of institutional role prescribed for every position within it, was of course central to Justice Scalia’s political theory, and it is no surprise that those who have adopted Scalia’s jurisprudence have also adopted his conceptual map. Central to this picture is that the judge’s job is not to second guess the value judgments made by the legislature, and certainly not those of the People themselves as aggregated into the Constitution-making process. Where the law encapsulates value judgments made by institutional actors ‘higher’ in the system of lawmaking, the inferior official’s job is not to interpret ‘ius’ for himself, nor even ius except to the extent it’s channeled off into alternative pathways by past institutional decisions which foreclose the ‘best’ answer, as Finnis might consider the interpretation of positive law. Where we focus on law as a system of command, such an exercise might be a gross dereliction of duty to superior legal authorities. When one’s boss asks him to plan a conference or a parent asks a child to clean his room, implicit in the authority relationship is that the inferior must, to a degree, set aside his personal standards of what counts as a good conference or a clean room. The relationship of authority requires that the subordinate set aside his personal ‘ius’-like judgments about such standards and adopt those of the superior—to throw ‘true’ morality, to continue the analogy, out of the picture to the fullest extent possible and utilize the moral judgments, right or wrong, of the superior.
Two points are important here. The first is that we’ve now departed from the concept of law debate to a discussion of political morality, and, particularly, what to do in hard cases where we think the statute or constitution is morally wrong, viewed in the light of what the authority which promulgated it most likely intended to command. A positivistic concept of law serves Scalia’s purposes here, because it foregrounds the authority relationship and best serves his political theory. The danger expressed in my opening paragraph, of using terminology to do substantive work, must be kept in mind in any such argument.
The second point is that the distinction here between true morality and one’s subjective morality is not as simple as might be thought, at least hermeneutically. Proper communication, including communication of commands, requires a large, mutually shared conceptual and linguistic apparatus. If my conception of morality, or cleanliness, or a well-functioning professional conference has no overlap with yours, it is completely impossible for us to talk about such things, much less for me to properly interpret a command you’ve given to me concerning them. One’s own background principles must enter the picture as part of the basic preconditions for communication to occur at all. However, once a certain level of overlap is achieved, ongoing communication can reveal that your use of concepts and terms only partially overlaps with my own—that while we both agree in the abstract what a good conference is, we disagree as to the seating arrangement, or the choice for the catered lunch to be served, or whether John Smith is too disagreeable to be invited to attend. On these more detailed matters, the subordinate’s judgment, however strongly felt, must fall by the wayside if we practically focus on the superior’s authority in the way that Scalia insists we must focus on the superior authority of the legislature or constitutional ratifiers.
(For the reader interested in analytic philosophy, the distinction I have in mind is close to that between what Donald Davidson called prior and passing theories of language—the first how I am initially inclined to interpret your utterances based on the shared conventions of our language, the second, how I come to understand your utterances as I learn through repeated experience that you use certain words and expressions in nonstandard ways. What I am saying here is that, to take a simple case, if a judge is interpreting a royal decree issued by a king with some very odd ideas about political morality, he likely has enough repeated experience interpreting or interacting with the king to know that the latter has very odd ideas about political morality. The judge must use his own moral faculties to a degree, in order to get a starting point for interpreting the king’s will, but he can also recognize that the king’s ideas about moral theory are nonstandard. We leave the realm of the conceptual and enter that of political morality when we ask whether the judge should interpret the king ‘faithfully’ or in light of true principles of political morality. The point is that Dworkinians and natural lawyers go too far when they try to leverage much about proper outcomes from the fact that the interpreter must have a prior moral theory to get the interpretive enterprise off the ground in the first place. I set aside Davidson’s startling claim that there are no prior theories of language, as almost no one seems to agree with it.)
Returning to the jurisprudential skepticism with which we began, I confess that I do not see a real difference between positivism and natural law in substance. The positivist thinks that judges should prefer morally good outcomes to morally bad ones. The natural lawyer gives a certain legal force to commands by the sovereign which are morally bad. They will describe these phenomena in different ways, but when one gets below the reification of mere words, there will often be very little at bottom to dispute on a conceptual level. We might have a moral dispute over what judges should do in hard cases where there are significant tensions between what we think is right and what the positive law says, but this is just another way of saying that the ‘concept of law debate’ is not a debate so much as a smokescreen for disagreements about political morality. One says all of this is part of ‘law,’ because he has tinkered with his concept of law to effectuate certain purposes. The other does not find those purposes as important, so he calls it ‘not law, but something sort of like law. Again, it seems to me that the primary way problems will emerge is if we use ‘law’ ambiguously, without keeping in mind which we (and our audience) has in mind, turning stipulative definitions into weapons.