Jurisprudence Essay - Topics 1-3 PDF

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Are there necessary connections between law and morality? Does this matter? The core of the positivist thesis is twofold: firstly, that the law is a set of social rules, and is something that can be observed and proved as any other social phenomena, and secondly, that there are no necessary connections between law and morality. It is quite clear that both arguments derive their strength, in part, from one another; but for the sake of space I shall not delve too far into the first taking lead from the question which directs towards us to the separability thesis (Coleman 1982). The position of legal positivists is complex and varied, but ultimately boils down to the fact that law and morality are distinct, that questions of what is are distinct from questions of what ought to be, where the former is a matter of legal validity and the latter a matter for political/moral judgement (Hart 1962). Within the positivist tradition, a line can be drawn between those who argue that even if there are no necessary connections between law and morality, there may well be contingent connections rendered naturally necessary due to the current state of human existence (Hart, Kramer), whereas others who argue that as a matter of logic there is simply no necessary connection at all (Raz, Shapiro). This approach is to be contrasted with natural lawyers (e.g. Finnis) and critics of positivism (Dworkin and Fuller) who argue that positivists have either conceded too much to the natural law camp and hence have fundamentally undermined their position by showing that there is indeed a necessary connection or that positivists fail to fully appreciate what the law represents in a society. My argument is simple: the answer to the question depends on how we define morality (and law), and that there is some force in Soper’s suggestion that it ultimately makes no difference either way, but I further contend that one should not push Soper’s argument too far. Does it Matter I start with the latter of the two questions: is there any meaningful, concrete impact that would be felt within a legal system if it were a system of either the positivist tradition or the natural law tradition? The core of this contention stems from the Hart-Fuller debate (1958), where Fuller launched a sharp attack against positivism, arguing in support of the Radbruch thesis, that German positivism essentially encouraged compliance with the Nazi regime, that positivism, when unchecked, essentially ensured that citizens would comply with wicked laws. But this critique does not convince, as Hart himself noted, it is precisely because law does not entail any moral understandings that Fuller’s criticism misses the mark: if in a system law and morality are seen as distinct, then positivism cannot explain why the citizens in Germany would defer to the law rather than their own assessment of the morality of their actions. This is to say that the law in and of itself does not entail any binding moral authority to determine a course of action, and clearly does not offer any concession to the natural law camp. Fuller’s riposte to this was that even if this might be true, positivism allowed those bent on doing evil to use a legal system to achieve their own ends. Kramer’s response to this is satisfactory in my view, who argues that it is precisely because a legal system can be used to achieve wicked goals as well as good goals which suggests that there is no prima facie moral bindingness of the law on the morality of the citizens. But then there is a further point to be noted, as Soper rightly acknowledges: Fuller’s argument stems from the assumption that we are discussing an evil judge in an evil regime. If we were to have an evil judge in a good regime (i.e. one that enshrines

fairness/justice etc in its ROR/constitution) we would still be under threat of having the law being utilized for an evil purpose. This stems from the primary assertion that law is a set of rules and without more, most innocent people tend to follow rules, largely without question, either out of laziness or deference to authority. The core point here is perhaps this (one that Soper does not make explicit): there is a difference between individual morality and institutional morality. Individual morality is fact-specific, what we would think as being the right or wrong thing to do; institutional morality is general, what we would think as being generally the right or generally the wrong thing to do. I concede that this assumes pluralism and can well be argued against, but in today’s era of proportionality and of weighing of ‘rights’ I believe the assertion to be at least well founded in practice, if not in concept. If we do not have a body like the ECtHR that can undertake a process by which to determine whether another body has acted in accordance with the law (whether or not it is infused with natural law rights) then the whole debate falls flat and is meaningless. This is because if there is not such regulatory body, then what we would then depend upon is the individual evaluation of the law, and if by extension one could choose to ignore the law if it did not fit with one’s moral theory then we would devolve into chaos and defeat the very purpose of the law (Raz). In sum, the existence of an official to oversee and regulate the enforcement/practice of the law is beyond the scope of either positivism and natural law theory. This conclusion seems to reach an impasse: that it is strictly whether our legal system is one of a positivist tradition or a natural law tradition. But this conclusion must be misguided, since the whole argument revolves around the concept of law, not just what works best in practice. This is Simmond’s contention: that law should not be used as an external label, but rather to be viewed from the inside, what Hart called the internal point of view: when law provides a reason for action/inaction. If there are logically necessary connections between the law and morality, then it also remains to be seen what those connections are. If one were to agree with Finnis for example, the taking of an innocent life is always unlawful, not just in the UK, but in any state that has a legal framework, because such an act fundamentally goes against the purpose and the aim of the law. The real point is therefore not whether there are necessary or contingent connections, but rather what is the purpose and aim of the law, and this question cannot be answered without answering the antecedent questions: what is law and how it relates to morality. Law vs Morality Campbell (1998) argues that prescriptions regarding the content of law can be distinguished from the prescriptions regarding the form of law: that legal positivism is a normative theory which seeks to determine what law ought to be, not with respect to its content, but with respect to its form. And indeed this seems to be the basis of (though arguably not the same as) Kramer’s position: that certain highly-desirable effects can only be achieved by law, and the co-ordination and securitypromoting functions are only formally moral (i.e. good in so far as they produce a structured and orderly society). So, one who argues that a structure is inherently moral since it envisages a flourishing society (for example Finnis, or even Fuller) will fundamentally disagree with the positivist when he/she states that a law can be amoral, but I suggest that the difference here is one of terminology not of substance. Hart himself conceded the minimum natural content of law, that due to certain factors like limited altruism and limited resources, there will always be certain form that the law takes to ensure the survival of the human race. It is not logically necessary to have survival as the goal or purpose of law, but it is naturally so in light of our goals as human beings.

Commentators vehemently disagree on what the purpose of law is. If it is merely to guide society (Shapiro) then one could say there are no necessary connections, but if it is to lead a flourishing life or set a standard for excellence (Finnis/Fuller) then it must be infused with some moral ideas. Priel (2006) argues that if the law ensures protection of the principles of the rule of law, and hence gives people a greater ability to plan their lives, maintenance of the rule of law is inherently morally valuable and hence Kramer cannot deny the necessary connections between law and morality. However, I suggest that this argument is misguided in so far as it conflates the principles of the rule of law and law itself. My point is this: either all laws must be inherently morally valuable, or none are. Now it cannot be reasonably said that all laws are morally valuable (for example Quia Emptores 1290 in England prevents subinfeudation, and this seems perfectly neutral as to moral worthiness) and hence the suggestion that no laws are inherently morally valuable must be considered. But this stands at odds with common sense: the law that prevents murder is clearly intended to be moral in nature. We can extricate ourselves by stating that the status of one law as morally valuable or not bears no relation to whether the framework itself is moral or not - and this leads us back to the aim and purpose of law. I conclude with the suggestion that morality should be defined as ‘what ought to be’. What is and what ought to be cannot be deduced from one another, and the latter must rest on some of our own empirical understanding of the world and our own desires. Ultimately therefore, the necessary connection between morality and law debate boils down to the Humeian is-ought gap, and is far too complex to be resolved in such a short space....