Natural Law, Legal Positivism, The Morality of Law
Dworkin's "Third Theory of Law"
Legal Realism and Critical Legal Studies
So, for example, he did not define "sovereign," for instance, as someone who had a "right to rule." Nor did he ever argue that the use of force by a sovereign to back up his commands had to be "legitimate." The "sovereign," according to Austin, was simply that person or entity whom most people living within a given territory happen to obey but who does not himself obey anyone else. The "sovereign" is simply the fellow (or fellows) who is (who are) obeyed rather than the one (ones) doing the obeying; the sovereign is the "unobeying obeyed." The sovereign, for Austin, is not that person who exercises a legitimate use of force within a given territory. He is simply the person whose threats of punishment the people who live in that territory find credible. His threats merely need to be credible or convincing to the people who live in the territory. The matter of legitimacy, of the legitimate exercise of force, is a moral issue, a separate issue, and Austin was eager to establish a way of speaking about "the law" that was value-neutral. It is not that Austin did not believe that we could not evaluate a legal system in moral terms, or that we could not pass moral judgment on this or that legal ruling within a given territory. We could and, of course, we do make these sorts of judgments all the time but he believed that it was important to identify the law itself in non-moral terms, that legality was separable from morality. The great advantage of Austin's definition lies its simplicity, but in its simplicity it may simultaneously fail to capture certain features of the law that we intuitively suspect are intimately bound up with it. In its simplicity too Austin's definition is seemingly open to several knock-down objections.
Austin might try to deal with this sort of objection by saying that in a case such as this my mother is (after all) being threatened. She is threatened with the sanction of nullity. If she fails to conform to the law of wills, whether by failing to make out a will or failing to fill it out properly, she is threatened by the sovereign's lack of support. If she fails to make out a will or fills it out improperly, the sovereign will not give effect to her "will.". The sculpture may have to sit in her back yard after she dies and continue to rust away, perhaps becoming part of the estate and (in the absence of a will) going (Heaven forbid!) to me and my brother. So she is "punished" after all.
But what then about the constitution? Does constitutional law fit Austin's model? In one sense the Constitution is law about law. It frames the practices of legislation, saying, in effect, what laws can and cannot be made, or more accurately what laws are valid and which are not. The Constitution, you might say, lists a set of conditions that legislation must meet. But are legislators being commanded and by whom? As in the instance of the law of wills, doesn't it make more sense to describe Constitutional law as a system of relative powers and competencies designed to give effect to the fundamental assumptions and basic understandings of a people living within a given territory? And what if we, most of the citizens, say, of the United States, decided one day to reject the Constitution? Would we be punished? By whom? Who would punish us?
These questions raise another question about Austin's command theory of law. Who, after all, is the sovereign? Do all systems of law have sovereigns in the Austinian sense. Think of our own constitutional democracy. Do we have a sovereign? Where is she? In the sense that we think of ourselves as being subject to a sovereign, it is we ourselves (we, the people) who are the sovereign. We are in charge and so supposedly obey no one but ourselves. We are, in this sense, both obeyer and obeyed. Insofar as Austin can make sense of our legal system in light of his model, it loses (Austin's model begins to lose) its simplicity, begins to lose the very thing that made it attractive as a model in the first place. But worse it may in the case of our limited government not only become more complicated but incoherent. Given our system of limited government, Austin would have to say that we, the people as sovereign limit ourselves. But the sovereign, the one doing the commanding, is meant to be distinguishable from the people, i.e., from the ones doing the obeying.
One way, of course, to make the necessary distinction and so to preserve Austin's picture is to distinguish ourselves in light of different roles and capacities. So we command in our capacity (role) as guardians of the public will ourselves in our capacity (role) as private citizens. We speak out of both sides of our mouths at once, but in different voices, expressing different aspects (sides) of ourselves, a public and private side. The public voice commands and says, for example, "we shall have more public schools," and the private voice obeys, saying "I shall pay more taxes." But now to distinguish clearly between these two sides of the sovereign coin, as it were, we need to be able to distinguish the two different sides of ourselves, to be able to distinguish when we are acting in a private capacity and when we are acting in our public capacity.
And to make this distinction, we need to bring in some notion of official capacity but there is nothing in Austin's model of the law that allows us to make this distinction. Imagine that the House of Representatives and the Senate got together in a joint session of Congress and passed a law that made each member of both Houses "King (and the few instances where it would be appropriate 'Queen') for a day." Say, too, that the legislation they pass states that each member will return to his or her constituency on a specified day and the constituents will, on that day, serve their Representative and Senators, i.e, by bringing them gifts, kissing their feet, etc.. Few of us would be inclined to say that this vote in Congress had made "law," since the members of both houses would not have been acting in their "official" capacity. Austin's theory, however, has no room for official capacity. His theory only sees the people who happen on this occasion to be commanding and who might on some other occasion be obeying. If he relies exclusively upon his model and he relies on nothing else, he will not be able to explain or understand why this decision by the Congress was not law.
Hart offers a more convincing response. He argues that it is not necessary to rush to moral judgment to answer either of these questions. Judges can resolve these questions by looking at broader social policies as well as at the purposes of the rule. Relying on social policy and the purposes of the legislation does not necessarily require judges to make moral judgments or to insert their own opinion into the outcome. Hart further argues that the "hard" cases, the "fuzzy" ones, the "penumbral" ones, can be resolved by turning to accepted social policies and purposes and that this can be done without our having to bring morality in. Ronald Dworkin disagrees with Hart on this point, but Hart - in this - takes Austin's view another step. Legal positivism can take a variety of forms. Austin's view is one of them. For positivists, law is that which has been "posited," i.e., "made," "enacted," or "laid down" in some prescribed fashion. In this regard, it is a deeply human product, an invention, "artificial" rather than "natural." It is neither given nor discovered, but made. On Austin's view, for instance, law is best understood as a system of orders, rules, or commands enforced by power. On this view, a rule of law need have no connection whatsoever with what is morally right or wrong in order to count (in order to qualify) as law. There is no necessary connection between what law is and what it ought to be. In contrast to the positivist position, naturalism holds that what we call "law" can only be adequately understood in light of certain moral standards and judgments. What we regard as law, what we respect as law is essentially bound up with and grounded in "a natural moral order." This "natural moral order" is not made up by any particular group of individuals or something concocted at some convention. But "out there," as it were, to be discovered. Naturalism holds that social and political practices and institutions are to be measured against these "higher" standards and where a rule of law falls short, i.e., fails to measure up to these "higher" standards, it also fails in some fundamental sense to qualify as law.
On the positivist view it does follow from the fact that something (some rule) is a rule of law that it is also morally good and right. It may be morally good and then again it may not. But if it isn't morally good, it is still a law nevertheless so long as it was enacted according to the prescribed procedures. There are also many rules that are rules of law that do not appear to have anything remotely to do with what is morally right and wrong. Take, for example, the traffic regulation which states that cars must drive (in this country) on the left-hand side of the road. Now a further objection to the positivist thesis has come from those who have had to live under an evil regime such as the regime which came into being under the National Socialists in Germany in 1933. These critics complain that the positivist position that a rule can be a rule of law even if it is immoral can have pernicious effects. If one insists that laws can remain valid even if immoral, this can be exploited by evil regimes to their advantage. Indeed this position was exploited by those convicted of war crimes at Nuremberg when defendants at the Trials claimed to have just been following orders, insisting that their actions were "within the law."
Dworkin argues that Hart's view is both descriptively inaccurate and morally unattractive. It is inaccurate because courts do, Dworkin claims, invoke principles and background rights in making decisions; and unattractive because it leaves judges free to exercise their discretion in other ways, i.e., by invoking policy considerations and ignoring a defendant's background rights. Dworkin has also tried to fit his theory of law into a context of other theories of interpretation, in particular theories of interpretation directed at literary texts. What makes one interpretation "right" or "better" than some other? Is all interpretation merely a "subjective" process in which the interpreter of a text merely imposes whatever meaning he or she chooses? Is there a sense in which the interpretation of a text can be said to be "objective?" Are there meaningful constraints on interpretive activity, distinct from political decision making? Dworkin argues that a conception of judicial interpretation must follow from a more general interpretation of what it means to interpret anything, be it a text or a work of art. In these latter cases, interpretation proceeds "from the inside out." To grasp the meaning of a play, for instance, one must understand what it means not only to the author but to the actors, director, audience, and critics, whose play it is. So, too, to understand a social practice such as the law involves the attempt to understand it as a way of life created and sustained by its members, people who see themselves as part of a larger community ("a community of principle," "an interpretive community") held together by a commitment to the rule of law. Ands this means, Dworkin believes, that interpretation must involve more than discovering the intent of the author of a play or the drafters of a statute. Interpretation must be constructive. Interpreters must see the play or the law in its best light, as the coherent embodiment of some theme or point.
For judges seeking to make sense of a series of earlier precedents they must seek to find the best constructive interpretation of the legal doctrine as it is expressed in those precedents. A judge is, in this respect, like a contributor to a "chain novel." He must take into account what has come before in such a way as to find some thread, some narrative line to continue, and he must think creatively in order to tell the story beyond the point that it has so far been told. When two interpretations conflict, judges must decide which reading fits best with the fundamental features of our law as well as which reading presents our law as something coherent and worthwhile, as something of value. The law is the product of that interpretation which most faithfully sums up the texts, principles, background rights, and values of a given community into a coherent and morally attractive whole. This is a naturalism, if it is a naturalist theory at all, of a very different sort than that expressed by Aquinas or Martin Luther King. Judges, on Dworkin's view, are not free to appeal to any moral principle nor do the principles to which they do appeal derive their validity from some natural moral order. Dworkin's judges are permitted to acknowledge only those principles and values which reside, explicitly or implicitly, in the legal history and tradition of their community.
So, Holmes argued, a contract is not a moral commitment that the law wants me to keep; it is not, as it were, simply, a promise in writing, but a transaction which offers each party to the arrangement a choice: either give what is required by the contract and take what is offered or take what is offered, fail to give what is asked, and pay the penalty. In order to understand the nature of contracts, to understand the nature of contract law, you have to see it from the "bad man's" perspective. Contract law is designed with this "bad guy" in mind; its provisions are "triggered" by what this "bad guy" might do. Thus, contract law exhibits the prudence of distrust and presupposes that the parties are held together by combinations of self-interest and calculation rather than mutual affection and love, that each party is out to get what is best for himself without regard to the welfare of the other. The law presumes that the parties do not "care" for each other. Holmes argued that the best way to understand the law is to be able to predict when and under what circumstances one's conduct will trigger the power of the state. By washing the law in this "cynical acid," Holmes sought to boil law down to its essence. Realists also take exception to the picture of law as a self-contained deductive system of rules, accompanied by the belief in a method of arriving at determinate solutions to problems of legal choice. This is what might be called the realist's rule-skepticism: "The law consists of decisions, not of rules." The law is not a rigid body of fixed and unchanging rules but a shifting and flexible social institution, with sufficient play, sufficient give-and-take, to accommodate the balancing of competing interests within a society.
So, too, legal realists take issue with the doctrine of precedent, the idea that a court's decision in one case can serve as a guide to future cases that are similar in relevant ways. Realists emphasize the indeterminacy and looseness of the use of precedent by pointing out that a ruling in one case never binds a decision maker in any future case because the decision maker can always find some feature of the later case that can serve as a ground for differentiating it from the earlier one. Many legal realists also argue that an understanding of the law is not reached by a method of deduction but is (rather) best understood as a matter of prediction. To understand the law you must concentrate on the patterns of decisions by judges in actual cases, whether those decisions happen to be logical or not, for these patterns of decision making are the most reliable guides to predicting what future courts will do.
Unger and others have argued that the very conditions that give rise to the need for the rule of law undermine the possibility for its success. The content of statutes are invariably colored by the value biases of those who have sufficient political power to get them passed into law and the interpretations of the law are invariably colored by the subjective views and biases of judges. These biases are often not merely personal but ideological, that is, systematically distorted interpretations that reflect the prevailing cultural ethos rather than simply a particular individual's personal point of view. So there is something guiding a judge's decision in this or that case, only it is not some value-free, abstract conception of the "law," but a reflection of the ideological commitments of the age (or period) in which a judge may happen to live or be born. Since there is neither a neutral process for enacting nor for interpreting the law, legality is fraught with paradox and contradiction.
Prepared April 22, 2005 - 5:02:29 PM
Edited and Updated, April 24, 2005
Philosophy of Law