One of the supposed virtues of legal positivism, tracing back a half-century into the foundational debates of Anglophone analytical jurisprudence, is the conceptual simplicity of the doctrine. The law is one thing. Positive morality is something else entirely. The law is a matter of fact—what legislatures, courts, and other salient officials have done in the past, including the enactment of legal texts, such as statutes and written judicial opinions. If positive law is to mean anything, and, particularly, if we are to respect the division of labor inherent in a rule-of-law system, we must keep separate the questions of what the law is and what we think it should be.
Thus, in some versions of this argument, the intermixing of law and morality is primarily a philosophical sin, a matter of conceptual confusion which no serious scholar should make. In other versions, it is a political sin, one of failing to respect the line between those components of the state which are responsible for making direct judgements regarding matters of political morality and which are not. In either scenario, however, the conceptual separation between law and morals—between what the positive law says, and, what, in an ideal world, it would say, is fundamental.
The separation thesis cannot, of course, be completely dispensed with, at least in a certain sense. To argue that there’s no line whatsoever, not even a fuzzy one, between law and morality would be to dispense with the idea that positive legal sources matter at all, to interpret the law as a matter of positive morality no matter what the legal texts say and what the legislature has done. But, if I and certain other legal theorists are right, there is another sense in which it must be dispensed with. The line between law and morality is never quite as clear as the positivists suggest.
One way to leverage this argument is to focus on what a positive legal enactment can and cannot be. Let us pretend that the entire positive law of our legal system is embodied in a clear and consistent legal code, promulgated by the legislature. (The simplifying device is intended to get us past whatever complexities emerge when we focus on the hierarchy of norms which results from having a ‘system’ of law which is made up of constitutional enactments, statutes, administrative regulations, court decisions, and other positive sources which, in the real world, inevitably conflict with one another in various ways.) We could posit that our legal code is both sound and complete, in a sense roughly akin of formal logic—that it will supply, essentially, a formal function into which we can throw any conflictual fact pattern which might emerge in society—any situation in which, say, A asserts that he has a right to do X unencumbered by B—and which will tell us whether A or B is in the right. On such a stipulation, the court’s job would never be to supply anything akin to a moral reading of the law in the context of litigation; the judge could be fully replaced by a computer algorithm.
Here, in the real world, our legal code will never be quite so neat. Questions about the legal relationship between A and B will emerge which were never contemplated by the legislature and which the legal code was never intended to answer. (The legal code will fail the completeness criterion.) Or, different parts of the legal code will seem to provide different answers to a question, depending on which part of the code you believe is meant to apply. The more we relax our assumption of the absolutely perfect legal code, the more complete will be the breakdown of our judge-as-algorithm model. Crude legal formalism will become silly long before we reach anything like the complexities of the real world.
In such situations, both the positivist and the anti-positivist will tend to say that the judge should consult moral criteria to decide the dispute between A and B. If the legal sources, narrowly understood, do not provide an answer (but positive morality does), there would be something arbitrary, irrational from the point of view of practical reason, to not decide the case as mandated by morality itself. One way of understanding the dispute between positivists and anti-positivists is to ask whether what the judge does in this case is part of the game of law itself or is extra-legal.
One might ask whether anything is really at stake in the dispute between positivists and anti-positivists here. If the social world necessarily contains both X and Y, does it really matter whether we say X and Y are completely separate things or, instead, if X and Y are both necessarily subcomponents of Z? Does it matter whether we say positive law and positive morality are both part of ‘Law’ as such or if, instead, they are separate spheres?
For there to be a real dispute, the answer to this question has to be ‘Yes.’ The Dworkinian argument is that there is something fundamental to the practice of law—to the doing of law through making what judges and lawyers understand to be ‘legal’ arguments—which legal positivism leaves out of the picture. To talk about law in contested cases is to talk about morality, full stop, and we’re merely adding epicycles onto a sociological theory which has lost its explanatory power if we deny this reality. The positivists have their own arguments in this domain, perhaps the most famous being Raz’s argument that the essence of ‘law’ is to claim a certain sort of dispositive authority in settling questions of practical reason.
My sympathies in this dispute are Dworkinian, but not exactly on the same line of argumentation that Dworkin himself laid out. My primary concern is how, precisely, law serves to mitigate the conflicts which emerge when people live together in a society, and, equally importantly, what an analysis of positive law alone will here leave out of the picture. Suppose we have an isolated community living on, say, an island in the middle of the ocean, cut off entirely from the rest of the world for centuries. Let us further suppose that this community has absolutely no written positive law. For the most part, the people have a shared conception of how things should be done—how barter exchanges should be conducted, how arrangements for marriage, hired labor, and other interpersonal affairs should occur, and so forth. There may be a judge or island chief who resolves comparatively minor disputes as they occur. But, in our made-up political community, at no time did anyone ever seek to authoritatively create law. The people have merely governed themselves according to their shared customs, institutions, and practices as they have been passed down from prehistory to the present day, with whatever modifications have organically emerged over time. We could easily flesh out the narrative such that any distinction whatsoever between those practices which are merely part of the conventional morality of our island community and which are part of its customary legal system would be completely arbitrary. Indeed, the question of whether our community has law at all might be pedantic.
The idyllic society I have described does not need law in a very specific sense. It does not need legislation, the purposive enactment of positive legal rules. This is because, by hypothesis, it already has all the ‘legal’ rules it needs as a matter of social conventions which are universally understood by each member of our community. I have already suggested that we may need adjudication insofar as the application of these conventional rules to specific controversies is in doubt.
But now let us suppose the social harmony I have posited is disrupted. Say, a large boat filled with inhabitants of a far-off island blows onto our island’s shores. It cannot get home. Its passengers must be integrated into our closed community. Our island society tries to proceed as before, but it finds new problems. Our ‘new’ citizens have their own ideas about how society should be organized. They had their own institutions and customs, their own body of conventional norms by which they once lived. Our judges now need to think harder in the context of adjudication when disputes arise between ‘new’ and ‘old’ citizens. Practices which were before left fully unarticulated and undefended must be explained to the newcomers. Some of these may strike the newcomers as somehow unfair—say rules of property acquisition and transfer which made sense for a closed community, but which will now, the newcomers argue, leave them as part of a permanent inferior caste. The community must decide if it is time to intentionally abandon the old rules and create new ones. The judge’s job has been greatly complicated; the legislator’s job has been created where it did not previously exist.
Here's the important point: Our composite society will see no need to create a comprehensive legal code of the sort we discussed earlier. On many points, perhaps most of them, perhaps almost all of the fundamental ones, the views of our ‘new’ and ‘old’ citizens will not differ from one another. For those affairs with regard to which our immigrants’ old society was identical to that of our community, things will proceed as before. The old practices will continue, and they will continue unquestioned. It will be like the rules of grammar of one’s native tongue, where it will never occur to the speaker to articulate the rules until he must explain them to someone who does not already know them. And, even when he is called on to articulate the rule, he may prove unable to do so, even if he can apply the rule in practice with near perfect success.
Our society’s rules of morality and/or law—we have already toyed with the idea that it may be arbitrary to specify which we are dealing with—will work much like grammar in this way to the extent controversy does not emerge. The judges and legislators will get involved in interpreting, and perhaps creating, rules of positive law only insofar as it occurs to them to do so, and it will occur to them to do so only insofar as rendered necessary in the context of specific disputes between citizens with different conceptions of how society should be organized. Positive law will emerge to settle disputes; it will not develop where there are no disputes to settle.
This sociological picture, to the extent that it is plausible, shows one thing: that the nexus of law and morality which work together to create the framework through which society organizes its shared existence is somewhat like an iceberg. Assuming that our ‘new’ and ‘old’ islanders came from pre-merger societies which were much like one another in terms of their ancestral customary ‘law,’ the positive law which will begin to emerge as a product of our merger will be only the tip of the iceberg. It will represent only those matters which are highly visible because they have served as the basis for controversy, controversy regarding how the people of our merged society ought to relate to one another as citizens and as human beings. However, the overwhelming majority of the norms of our community will likely rest beneath the surface, unseen because unquestioned. (This was the case for all our 'legal' norms, by hypothesis, before the newcomers arrived.) From these universally shared norms will emerge common pictures of fundamental rights, of the benefits and burdens of citizenship, of how the individuals of our society should relate to one another as a matter of justice. Our citizens will have trouble articulating this shared picture of society precisely because, like the rules of a shared grammar, they are universally understood. Our merged society may enact a positive constitution, but there will be reason to put things in it to settle disputes above the iceberg's waterline, not to excavate that which lies below it. The fundamental constitution of our island society will remain a body of social, moral, and quasi-moral norms which it would never occur to anyone to put into the written constitution or to litigate about in a court of law. A positive law will stand, if anything, as a marker in the social history of our society, representing a point of fissure in the life of the community and an attempt to resolve it through the organized force of nascent legal authorities. The existence of a legal source, in shortest terms, is the monument of a past abnormal situation in the life of our political community, not as the paradigm of the normal situation. The law, as Carl Schmitt stressed in his own arguments against legal positivism, will be written against the background of and intended to apply only to the normal situation which rests below the water’s surface, so that to analyze the positive law as an expression of the ‘law’ of the society will always be fundamentally incomplete.
Social conventions are, of course, things that exist in the world. Our hypothetical island community is no argument that legal positivism is incoherent. But we have seen that there may be something misplaced about a focus on the positive sources created by a legal community as a sign of what that community’s law is; to do so is to gaze upon the tip of the iceberg and pretend it is the entire thing. The question is thus whether the positivist's picture is so incomplete as to be unattractive, aesthetically or as a social scientific construct. This has important ramifications for certain applications of legal positivism, such as, I have argued, for the crude form of positivism needed to make most popular versions of originalist constitutional jurisprudence complete. And it also suggests that, if we are to limit ‘law’ to a matter of articulable social facts and extant legal sources, that law may be a comparatively trivial matter in the organization of the social life of the political community when compared against that which the positivistic framework insists on calling extra-legal. We may be led to ask ourselves what good reasons we have to limit law’s scope to the fulfillment of a set of aims, Raz reminds us, it cannot effectuate. And, if we are led to ask ourselves what the members of our island community are arguing about when they ask not what the norms of the society should be but what they already are, we might find the Dworkinian picture of legal discourse irresistible.