nature of law. Its foundation consists in the pedigree thesis and
separability thesis, which jointly assert that law is manufactured
according to certain social conventions. Also associated with
positivism is the view, called the discretion thesis, that judges make
new law in deciding cases not falling clearly under a legal rule. As
an historical matter, positivism arose in opposition to classical
natural law theory, according to which there are necessary moral
constraints on the content of law. The word "positivism" was probably
first used to draw attention to the idea that law is "positive" or
"posited," as opposed to being "natural" in the sense of being derived
from natural law or morality.
1. The Pedigree Thesis
The pedigree thesis asserts that legal validity is a function of
certain social facts. Borrowing heavily from Jeremy Bentham, John
Austin argues that the principal distinguishing feature of a legal
system is the presence of a sovereign who is habitually obeyed by most
people in the society, but not in the habit of obeying any determinate
human superior (Austin 1995, p. 166). On Austin's view, a rule R is
legally valid (that is, is a law) in a society S if and only if R is
commanded by the sovereign in S and is backed up with the threat of a
sanction. The severity of the threatened sanction is irrelevant; any
general sovereign imperative supported by a threat of even the
smallest harm is a law.
Austin's command theory of law is vulnerable to a number of
criticisms. One problem is that there appears to be no identifiable
sovereign in democratic societies. In the United States, for example,
the ultimate political power seems to belong to the people, who elect
lawmakers to represent their interests. Elected lawmakers have the
power to coerce behavior but are regarded as servants of the people
and not as repositories of sovereign power. The voting population, on
the other hand, seems to be the repository of ultimate political
authority yet lacks the immediate power to coerce behavior. Thus, in
democracies like that of the United States, the ultimate political
authority and the power to coerce behavior seem to reside in different
entities.
A second problem has to do with Austin's view that the sovereign
lawmaking authority is incapable of legal limitation. On Austin's
view, a sovereign cannot be legally constrained because no person (or
body of persons) can coerce herself (or itself). Since constitutional
provisions limit the authority of the legislative body to make laws,
Austin is forced to argue that what we refer to as constitutional law
is really not law at all; rather, it is principally a matter of
"positive morality" (Austin 1977, p. 107).
Austin's view is difficult to reconcile with constitutional law in the
United States. Courts regard the procedural and substantive provisions
of the constitution as constraints on legal validity. The Supreme
Court has held, for example, that "an unconstitutional act is not a
law; it confers no rights; it imposes no duties; it is, in legal
contemplation, as inoperative as though it had never been passed."
(Norton v. Shelby County, 118 U.S. 425 (1886)). Moreover, these
constraints purport to be legal constraints: the Supremacy Clause of
Article VI of the Constitution states that "[t]his Constitution …
shall be the supreme Law of the Land; and the Judges in every State
shall be bound thereby."
The most influential criticisms of Austin's version of the pedigree
thesis, however, owe to H. L. A. Hart's seminal work, The Concept of
Law. Hart points out that Austin's theory provides, at best, a partial
account of legal validity because it focuses on one kind of rule,
namely that which requires citizens "to do or abstain from certain
actions, whether they wish to or not" (Hart 1994, p. 81). While every
legal system must contain so-called primary rules that regulate
citizen behavior, Hart believes a system consisting entirely of the
kind of liberty restrictions found in the criminal law is, at best, a
rudimentary or primitive legal system.
On Hart's view, Austin's emphasis on coercive force leads him to
overlook the presence of a second kind of primary rule that confers
upon citizens the power to create, modify, and extinguish rights and
obligations in other persons. As Hart points out, the rules governing
the creation of contracts and wills cannot plausibly be characterized
as restrictions on freedom that are backed by the threat of a
sanction. These rules empower persons to structure their legal
relations within the coercive framework of the law-a feature that Hart
correctly regards as one of "law's greatest contributions to social
life." The operation of power-conferring primary rules, according to
Hart, indicates the presence of a more sophisticated system for
regulating behavior.
But what ultimately distinguishes societies with full-blown systems of
law from those with only rudimentary or primitive forms of law is that
the former have, in addition to first-order primary rules, secondary
meta-rules that have as their subject matter the primary rules
themselves:
[Secondary rules] may all be said to be on a different level from
the primary rules, for they are all about such rules; in the sense
that while primary rules are concerned with the actions that
individuals must or must not do, these secondary rules are all
concerned with the primary rules themselves. They specify the way in
which the primary rules may be conclusively ascertained, introduced,
eliminated, varied, and the fact of their violation conclusively
determined (Hart 1994, p. 92).
Hart distinguishes three types of secondary rules that mark the
transition from primitive forms of law to full-blown legal systems:
(1) the rule of recognition, which "specifies] some feature or
features possession of which by a suggested rule is taken as a
conclusive affirmative indication that it is a rule of the group to be
supported by the social pressure it exerts" (Hart 1994, p. 92); (2)
the rule of change, which enables a society to add, remove, and modify
valid rules; and (3) the rule of adjudication, which provides a
mechanism for determining whether a valid rule has been violated. On
Hart's view, then, every society with a full-blown legal system
necessarily has a rule of recognition that articulates criteria for
legal validity that include provisions for making, changing and
adjudicating law. Law is, to use Hart's famous phrase, "the union of
primary and secondary rules" (Hart 1994, p. 107). Austin theory fails,
on Hart's view, because it fails to acknowledge the importance of
secondary rules in manufacturing legal validity.
Hart also finds fault with Austin's view that legal obligation is
essentially coercive. According to Hart, there is no difference
between the Austinian sovereign who governs by coercing behavior and
the gunman who orders someone to hand over her money. In both cases,
the subject can plausibly be characterized as being "obliged" to
comply with the commands, but not as being "duty-bound" or "obligated"
to do so (Hart 1994, p. 80). On Hart's view, the application of
coercive force alone can never give rise to an obligation-legal or
otherwise.
Legal rules are obligatory, according to Hart, because people accept
them as standards that justify criticism and, in extreme cases,
punishment of deviations:
What is necessary is that there should be a critical reflective
attitude to certain patterns of behavior as a common standard, and
that this should display itself in criticism (including
self-criticism), demands for conformity, and in acknowledgements that
such criticism and demands are justified, all of which find their
characteristic expression in the normative terminology of 'ought',
'must', and 'should', and 'right' and 'wrong' (Hart 1994, p. 56).
The subject who reflectively accepts the rule as providing a standard
that justifies criticism of deviations is said to take "the internal
point of view" towards it.
On Hart's view, it would be too much to require that the bulk of the
population accept the rule of recognition as the ultimate criteria for
legal validity: "the reality of the situation is that a great
proportion of ordinary citizens-perhaps a majority-have no general
conception of the legal structure or its criteria of validity" (Hart
1994, p. 111). Instead, Hart argues that what is necessary to the
existence of a legal system is that the majority of officials take the
internal point of view towards the rule of recognition and its
criteria of validity. All that is required of citizens is that they
generally obey the primary rules that are legally valid according to
the rule of recognition.
Thus, on Hart's view, there are two minimum conditions sufficient and
necessary for the existence of a legal system: "On the one hand those
rules of behavior which are valid according to the system's ultimate
criteria of validity must be generally obeyed, and, on the other hand,
its rules of recognition specifying the criteria of legal validity and
its rules of change and adjudication must be effectively accepted as
common public standards of official behavior by its officials" (Hart
1994, p. 113).
Hart's view is vulnerable to the same criticism that he levels against
Austin. Hart rejects Austin's view because the institutional
application of coercive force can no more give rise to an obligation
than can the application of coercive force by a gunman. But the
situation is no different if the gunman takes the internal point of
view towards his authority to make such a threat. Despite the gunman's
belief that he is entitled to make the threat, the victim is obliged,
but not obligated, to comply with the gunman's orders. The gunman's
behavior is no less coercive because he believes he is entitled to
make the threat.
And likewise for a minimal legal system where only the officials of
the legal system take the internal point of view towards the rule of
recognition that endows them with authority to make, execute,
adjudicate, and enforce the rules. The mere presence of a belief in
the officials that they are entitled to make law cannot give rise to
an obligation in other people to comply with their enactments any more
than the presence of a belief on the part of a gunman that he is
entitled to issue orders gives rise to an obligation in the victim to
comply with those orders. Hart's minimal legal system is no less
coercive than Austin's legal system.
2. The Separability Thesis
The second thesis comprising the foundation of legal positivism is the
separability thesis. In its most general form, the separability thesis
asserts that law and morality are conceptually distinct. This abstract
formulation can be interpreted in a number of ways. For example, Klaus
Faber (1996) interprets it as making a meta-level claim that the
definition of law must be entirely free of moral notions. This
interpretation implies that any reference to moral considerations in
defining the related notions of law, legal validity, and legal system
is inconsistent with the separability thesis.
More commonly, the separability thesis is interpreted as making only
an object-level claim about the existence conditions for legal
validity. As H.L.A. Hart describes it, the separability thesis is no
more than the "simple contention that it is in no sense a necessary
truth that laws reproduce or satisfy certain demands of morality,
though in fact they have often done so" (Hart 1994, pp. 181-82).
Insofar as the object-level interpretation of the separability thesis
denies it is a necessary truth that there are moral constraints on
legal validity, it implies the existence of a possible legal system in
which there are no moral constraints on legal validity.
a. Inclusive vs. Exclusive Positivism
Though all positivists agree there are possible legal systems without
moral constraints on legal validity, there are conflicting views on
whether there are possible legal systems with such constraints.
According to inclusive positivism (also known as incorporationism and
soft positivism), it is possible for a society's rule of recognition
to incorporate moral constraints on the content of law. Prominent
inclusive positivists include Jules Coleman and H.L.A. Hart, who
maintains that "the rule of recognition may incorporate as criteria of
legal validity conformity with moral principles or substantive values
… such as the Sixteenth or Nineteenth Amendments to the United States
Constitution respecting the establishment of religion or abridgements
of the right to vote" (Hart 1994, p. 250).
In contrast, exclusive positivism (also called hard positivism) denies
that a legal system can incorporate moral constraints on legal
validity. Exclusive positivists like Joseph Raz (1979, p. 47)
subscribe to the source thesis, according to which the existence and
content of law can always be determined by reference to its sources
without recourse to moral argument. On this view, the sources of law
include both the circumstances of its promulgation and relevant
interpretative materials, such as court cases involving its
application.
At first glance, exclusive positivism may seem difficult to reconcile
with what appear to be moral criteria of legal validity in legal
systems like that of the United States. For example, the Fourth
Amendment provides that "[t]he right of the people to be secure in
their persons, houses, papers, and effects against unreasonable
searches and seizures, shall not be violated." Likewise, the First
Amendment prohibits laws abridging the right of free speech. Taken at
face value, these amendments seem to make moral standards part of the
conditions for legal validity.
Exclusive positivists argue that such amendments can require judges to
consider moral standards in certain circumstances, but cannot
incorporate those standards into the law. When a judge makes reference
to moral considerations in deciding a case, she necessarily creates
new law on an issue-and this is so even when the law directs her to
consider moral considerations, as the Bill of Rights does in certain
circumstances. On this view, all law is settled law and questions of
settled law can be resolved without recourse to moral arguments:
The law on a question is settled when legally binding sources
provide its solution. In such cases judges are typically said to apply
the law, and since it is source-based, its application involves
technical, legal skills in reasoning from those sources and does not
call for moral acumen. If a legal question is not answered by
standards deriving from legal sources then it lacks a legal answer-the
law on such questions is unsettled. In deciding such cases courts
inevitably break new (legal) ground and their decision develops the
law…. Naturally, their decisions in such cases rely at least partly on
moral and other extra-legal considerations (Raz 1979, pp. 49-50).
If the judge can resolve an issue involving the First Amendment merely
by applying past court decisions, then the issue is settled by the
law; if not, then the issue is unsettled. Insofar as the judge looks
to controversial moral standards to resolve the issue, she is going
beyond the law because the mere presence of controversy about the law
implies that it is indeterminate. Thus, on Raz's view, references to
moral language in the law, at most, direct judges to consider moral
requirements in resolving certain unsettled questions of law. They
cannot incorporate moral requirements into the law.
3. The Discretion Thesis
third thesis commonly associated with positivism is the discretion
thesis, according to which judges decide difficult cases by making new
law in the exercise of discretion. Ronald Dworkin describes this
thesis as follows:
The set of these valid legal rules is exhaustive of 'the law', so
that if someone's case is not clearly covered by such a rule . . .
then that case cannot be decided by 'applying the law.' It must be
decided by some official, like a judge, 'exercising his discretion,'
which means reaching beyond the law for some other sort of standard to
guide him in manufacturing a fresh legal rule or supplementing an old
one (Dworkin 1977, p. 17).
On this view, a judge cannot decide a case that does not fall clearly
under a valid rule by interpreting or applying the law; she must
decide the case by creating or promulgating a law that did not exist
prior to the adjudication. Thus, the discretion thesis implies that
judges are empowered with a quasi-legislative lawmaking authority in
cases that cannot be decided merely by applying law.
Though often associated with positivism, the discretion thesis does
not belong to positivism's theoretical core. The pedigree and
separability theses purport to be conceptual claims that are true of
every possible legal system. These two claims jointly assert that, in
every possible legal system, propositions of law are valid in virtue
of having been manufactured according to some set of social
conventions. On this view, there are no moral constraints on the
content of law that hold in every possible legal system.
But many positivists regard the discretion thesis as a contingent
claim that is true of some, but not all, possible legal systems. Hart,
for example, believes there will inevitably arise cases that do not
fall clearly under a rule, but concedes a rule of recognition could
deny judges discretion to make law in such cases by requiring judges
"to disclaim jurisdiction or to refer the points not regulated by the
existing law to the legislature to decide" (Hart 1994, p. 272).
Indeed, Hart's inclusive positivism allows him to hold that a rule of
recognition could require judges to decide cases in precisely the
manner that Dworkin advocates (Hart 1994, p. 263; and see Section
IV-2, infra). Thus, at least for inclusive positivists like Hart, the
discretion thesis makes a different kind of claim than the conceptual
claims that form positivism's theoretical core (Himma 1999).
Moreover, the discretion thesis is consistent with some forms of
natural law theory. According to Blackstone's classical naturalism,
conformity with the natural law is a necessary condition for legal
validity in every possible legal system. But insofar as the natural
law is incomplete, there will inevitably arise issues that have
multiple outcomes consistent with the natural law. Since none of the
relevant outcomes in such cases offend the natural law, there is
nothing in the assumption of necessary moral constraints on the
content of law, in and of itself, that precludes Blackstone from
endorsing the discretion thesis in such cases. Of course, if
Blackstone believes the natural law contains a principle denying
discretion to judges, then that commitment is inconsistent with the
discretion thesis. But the assertion there are necessary constraints
on the content of law, in and of itself, is consistent with the
discretion thesis, even construed as a conceptual claim, as long as
there are cases to which the natural law is indifferent.
In any event, Dworkin distinguishes three different senses in which a
judge might be said to have discretion: (1) a judge has discretion
when she exercises judgment in applying a legal standard to a
particular case; (2) a judge has discretion when her decision is not
subject to reversal by any other authority; and (3) a judge has
discretion when her decision is not bound by any legal standards.
According to Dworkin, positivism's discretion thesis is committed to
the third sense of discretion, which he refers to as strong
discretion. On Dworkin's view, the thesis that judges have discretion
only in the sense that they exercise judgment is trivially true, while
the thesis that judges have discretion in the sense that their
decisions are not subject to being reversed by a higher authority is
false. Even the Supreme Court can be reversed by Congress or by
constitutional amendment. Thus, on Dworkin's view, the discretion
thesis implies that judges have discretion to decide hard cases by
what amounts to an act of legislation because the judge is not bound
by any legal standards.
Thus construed, the discretion thesis is inconsistent with ordinary
legal practice. Even in the most difficult of cases where there is no
clearly applicable law, lawyers do not ask that the judge decide the
relevant issue by making new law. Each lawyer cites cases favorable to
her client's position and argues that the judge is bound by those
cases to decide in her client's favor. As a practical matter, lawyers
rarely, if ever, concede there are no legal standards governing a case
and ask the judge to legislate in the exercise of discretion.
Nevertheless, the problem with Dworkin's analysis is that it falsely
presupposes an official cannot make new law unless there are no legal
standards constraining the official's decision. Indeed, lawmaking
authorities in legal systems like the U.S. never have what Dworkin
describes as strong discretion. Even the legislative decisions of
Congress, the highest legislative authority in the nation, are always
constrained by constitutional standards. For example, under the
Fourteenth Amendment, Congress cannot enact a law that sets one speed
limit for male drivers on interstate highways and another for female
drivers.
For his part, Hart concedes that judicial lawmaking authority is
limited in two respects: "not only are the judge's powers subject to
many constraints narrowing his choice from which a legislature may be
quite free, but since the judge's powers are exercised only to dispose
of particular instant cases he cannot use these to introduce
large-scale reforms or new codes" (Hart 1994, p. 273). What explains
the judge's discretion to make new law in a given case, on Hart's
view, is not the absence of legal standards constraining her decision;
rather it is the absence of legal standards that dictate a uniquely
correct answer to the case. The judge cannot decide such a case merely
by applying existing law because there is more than one available
outcome that coheres with existing law. In such instances, it is
impossible to render a substantive decision (as opposed to simply
referring the matter back to the legislature) without creating new
law.
The discretion thesis is vulnerable to one powerful objection. Insofar
as a judge decides a difficult case by making new law in the exercise
of discretion, the case is being decided on the basis of a law that
did not exist at the time the dispute arose. If, for example, a judge
awards damages to a plaintiff by making new law in the exercise of
discretion, it follows that she has held the defendant liable under a
law that did not exist at the time the dispute arose. And, as Dworkin
points out, it seems patently unfair to deprive a defendant of
property for behavior that did not give rise to liability at the time
the behavior occurred.
Nevertheless, Dworkin's view fares no better on this count. While
Dworkin acknowledges the existence of difficult cases that do not fall
clearly under a rule, he believes they are not resolved by an exercise
of judicial discretion. On Dworkin's view, there is always a right
answer to such cases implicit in the pre-existing law. Of course, it
sometimes takes a judge of Herculean intellectual ability to discern
what the right answer is, but it is always there to be found in
pre-existing law. Since the right answer to even hard legal disputes
is always part of pre-existing law, Dworkin believes that a judge can
take property from a defendant in a hard case without unfairness
(Dworkin 1977, pp. 87-130).
But if fairness precludes taking property from a defendant under a law
that did not exist at the time of the relevant behavior, it also
precludes taking property from a defendant under a law that did not
give reasonable notice that the relevant behavior gives rise to
liability. Due process and fundamental fairness require reasonable
notice of which behaviors give rise to liability. As long as Dworkin
acknowledges the existence of cases so difficult that only the best of
judges can solve them, his theory is vulnerable to the same charge of
unfairness that he levels at t he discretion thesis.
4. Classic Criticisms of Positivism
a. Fuller's Internal Morality of Law
In The Morality of Law, Lon L. Fuller argues that law is subject to an
internal morality consisting of eight principles: (P1) the rules must
be expressed in general terms; (P2) the rules must be publicly
promulgated; (P3) the rules must be (for the most part) prospective in
effect; (P4) the rules must be expressed in understandable terms; (P5)
the rules must be consistent with one another; (P6) the rules must not
require conduct beyond the powers of the affected parties; (P7) the
rules must not be changed so frequently that the subject cannot rely
on them; and (P8) the rules must be administered in a manner
consistent with their wording (Fuller 1964, p. 39).
On Fuller's view, no system of rules that fails minimally to satisfy
these principles of legality can achieve law's essential purpose of
achieving social order through the use of rules that guide behavior. A
system of rules that fails to satisfy (P2) or (P4), for example,
cannot guide behavior because people will not be able to determine
what the rules require. Accordingly, Fuller concludes that his eight
principles are "internal" to law in the sense that they are built into
the existence conditions for law: "A total failure in any one of these
eight directions does not simply result in a bad system of law; it
results in something that is not properly called a legal system at
all" (Fuller 1964, p. 39).
These internal principles constitute a morality, according to Fuller,
because law necessarily has positive moral value in two respects: (1)
law conduces to a state of social order and (2) does so by respecting
human autonomy because rules guide behavior. Since no system of rules
can achieve these morally valuable objectives without minimally
complying with the principles of legality, it follows, on Fuller's
view, that they constitute a morality. Since these moral principles
are built into the existence conditions for law, they are internal and
hence represent a conceptual connection between law and morality that
is inconsistent with the separability thesis.
Hart responds by denying Fuller's claim that the principles of
legality constitute an internal morality; on Hart's view, Fuller
confuses the notions of morality and efficacy:
[T]he author's insistence on classifying these principles of
legality as a "morality" is a source of confusion both for him and his
readers…. [T]he crucial objection to the designation of these
principles of good legal craftsmanship as morality, in spite of the
qualification "inner," is that it perpetrates a confusion between two
notions that it is vital to hold apart: the notions of purposive
activity and morality. Poisoning is no doubt a purposive activity, and
reflections on its purpose may show that it has its internal
principles. ("Avoid poisons however lethal if they cause the victim to
vomit"….) But to call these principles of the poisoner's art "the
morality of poisoning" would simply blur the distinction between the
notion of efficiency for a purpose and those final judgments about
activities and purposes with which morality in its various forms is
concerned (Hart 1965, pp. 1285-86).
On Hart's view, all actions, including virtuous acts like lawmaking
and impermissible acts like poisoning, have their own internal
standards of efficacy. But insofar as such standards of efficacy
conflict with morality, as they do in the case of poisoning, it
follows that they are distinct from moral standards. Thus, while Hart
concedes that something like Fuller's eight principles are built into
the existence conditions for law, he concludes that they do not
constitute a conceptual connection between law and morality.
Unfortunately, Hart's response overlooks the fact that most of
Fuller's eight principles double as moral ideals of fairness. For
example, public promulgation in understandable terms may be a
necessary condition for efficacy, but it is also a moral ideal; it is
morally objectionable for a state to enforce rules that have not been
publicly promulgated in terms reasonably calculated to give notice of
what is required. Similarly, we take it for granted that it is wrong
for a state to enact retroactive rules, inconsistent rules, and rules
that require what is impossible. Poisoning may have its internal
standards of efficacy, but such standards are distinguishable from the
principles of legality in that they conflict with moral ideals.
Nevertheless, Fuller's principles operate internally, not as moral
ideals, but merely as principles of efficacy. As Fuller would likely
acknowledge, the existence of a legal system is consistent with
considerable divergence from the principles of legality. Legal
standards, for example, are necessarily promulgated in general terms
that inevitably give rise to problems of vagueness. And officials all
too often fail to administer the laws in a fair and even-handed
manner-even in the best of legal systems. These divergences may always
be prima facie objectionable, but they are inconsistent with a legal
system only when they render a legal system incapable of performing
its essential function of guiding behavior. Insofar as these
principles are built into the existence conditions for law, it is
because they operate as efficacy conditions-and not because they
function as moral ideals.
Fuller's jurisprudential legacy, however, should not be
underestimated. While positivists have long acknowledged that law's
essential purpose is to guide behavior through rules (e.g., John
Austin writes that "[a] law .. may be defined as a rule laid down for
the guidance of an intelligent being by an intelligent being having
power over him" Austin 1977, p. 5), they have not always appreciated
the implications of this purpose. Fuller's lasting contribution to the
theory of law was to flesh out these implications in the form of his
principles of legality.
b. Positivism and Legal Principles
workin argues that, in deciding hard cases, judges often invoke legal
principles that do not derive their authority from an official act of
promulgation (Dworkin 1977, p. 40). These principles, Dworkin
believes, must be characterized as law because judges are bound to
consider them when relevant. But if unpromulgated legal principles
constitute law, then it is false, contra the pedigree thesis, that a
proposition of law is valid only in virtue of having been formally
promulgated.
According to Dworkin, principles and rules differ in the kind of
guidance they provide to judges:
Rules are applicable in an all-or-nothing fashion. If the facts a
rule stipulates are given, then either the rule is valid, in which
case the answer it supplies must be accepted, or it is not, in which
case it contributes nothing to the decision…. But this is not the way
principles operate…. [A principle] states a reason that argues in one
direction, but does not necessitate a particular decision (Dworkin
1977, pp. 24-25).
On Dworkin's view, conflicting principles provide competing reasons
that must be weighed according to the importance of the respective
values they express. Thus, rules are distinguishable from principles
in two related respects: (1) rules necessitate, where principles only
suggest, a particular outcome; and (2) principles have, where rules
lack, the dimension of weight.
Dworkin cites the case of Riggs v. Palmer as representative of how
judges use principles to decide hard cases. In Riggs, the court
considered the question of whether a murderer could take under the
will of his victim. At the time the case was decided, neither the
statutes nor the case law governing wills expressly prohibited a
murderer from taking under his victim's will. Despite this, the court
declined to award the defendant his gift under the will on the ground
that it would be wrong to allow him to profit from such a grievous
wrong. On Dworkin's view, the court decided the case by citing "the
principle that no man may profit from his own wrong as a background
standard against which to read the statute of wills and in this way
justified a new interpretation of that statute" (Dworkin 1977, p. 29).
The positivist might respond that when the Riggs court considered this
principle, it was reaching beyond the law to extralegal standards in
the exercise of judicial discretion. But Dworkin points out that the
Riggs judges would "rightfully" have been criticized had they failed
to consider this principle; if it were merely an extralegal standard,
there would be no rightful grounds to criticize a failure to consider
it (Dworkin 1977, p. 35). Accordingly, Dworkin concludes that the best
explanation for the propriety of such criticism is that principles are
part of the law.
Further, Dworkin maintains that the legal authority of standards like
the Riggs principle cannot derive from promulgation in accordance with
purely formal requirements: "[e]ven though principles draw support
from the official acts of legal institutions, they do not have a
simple or direct enough connection with these acts to frame that
connection in terms of criteria specified by some ultimate master rule
of recognition" (Dworkin 1977, p. 41). Unlike legal rules, legal
principles lack a canonical form and hence cannot be explained by
formal promulgation.
On Dworkin's view, the legal authority of a binding principle derives
from the contribution it makes to the best moral justification for a
society's legal practices considered as a whole. According to Dworkin,
a legal principle maximally contributes to such a justification if and
only if it satisfies two conditions: (1) the principle coheres with
existing legal materials; and (2) the principle is the most morally
attractive standard that satisfies (1). The correct legal principle is
the one that makes the law the moral best it can be. Thus, Dworkin
concludes, "if we treat principles as law we must reject the
positivists' first tenet, that the law of a community is distinguished
from other social standards by some test in the form of a master rule"
(Dworkin 1977, p. 44).
In response, positivists concede that there are legal principles, but
argue that their authority as law can be explained in terms of the
conventions contained in the rule of recognition:
Legal principles, like other laws, can be enacted or repealed by
legislatures and administrative authorities. They can also become
legally binding through establishment by the courts. Many legal
systems recognize that both rules and principles can be made into law
or lose their status as law through precedent (Raz 1972, p. 848).
According to this view, legal principles are like legal rules in that
both derive their authority under the rule of recognition from the
official acts of courts and legislatures. If the Riggs principle that
no person shall profit from her own wrong has legal authority, it is
because that principle was either declared by a court in the course of
adjudicating a dispute or formally promulgated by the appropriate
legislative body.
Further, inclusive positivists argue that Dworkin's account of
principles is itself consistent with the pedigree thesis. As Hart puts
it, "this interpretative test seems not to be an alternative to a
criterion provided by a rule of recognition, but … only a complex
'soft-positivist' form of such a criterion identifying principles by
their content not by their pedigree" (Hart 1994, p. 263). The idea,
familiar from Section II, is that a rule of recognition can
incorporate content-based constraints on legal validity, even those
rooted ultimately in morality.
c. The Semantic Sting
In Law's Empire, Dworkin distinguishes two kinds of disagreement legal
practitioners can have about the law. Lawyers can agree on the
criteria a rule must satisfy to be legally valid, but disagree on
whether those criteria are satisfied by a particular rule. For
example, two lawyers might agree that a rule is valid if enacted by
the state legislature, but disagree on whether the rule at issue was
actually enacted by the state legislature. Such disagreements are
empirical in nature and hence pose no theoretical difficulties for
positivism.
There is, however, a second kind of disagreement that Dworkin believes
is inconsistent with positivism. Lawyers often agree on the facts
about a rule's creation, but disagree on whether those facts are
sufficient to endow the rule with legal authority. Such disagreement
is considerably deeper than empirical disagreement as it concerns the
criteria for legal validity-which, according to positivism, are
exhausted by the rule of recognition. Dworkin calls this second kind
of disagreement theoretical disagreement about the law.
Theoretical disagreement, on Dworkin's view, is inconsistent with the
pedigree thesis because the pedigree thesis explains the concept of
law in terms of shared criteria for creating, changing and
adjudicating law:
If legal argument is mainly or even partly about [the properties
that make a proposition legally valid], then lawyers cannot all be
using the same factual criteria for deciding when propositions of law
are true and false. Their arguments would be mainly or partly about
which criteria they should use. So the project of the semantic
theories, the project of digging out shared rules from a careful study
of what lawyers say and do, would be doomed to fail (Dworkin 1986, p.
43).
If lawyers disagree about the criteria of legal validity, then the
grounds of legal validity cannot be exhausted by the shared criteria
contained in a rule of recognition. The semantic sting, then, implies
that there must be more to the concept of legal validity than can be
explained by promulgation in accordance with shared criteria embodied
in a rule of recognition.
The semantic sting resembles one of Dworkin's earlier criticisms of
Hart's pedigree thesis. Hart believes that the rule of recognition is
a social rule and is hence constituted by the conforming behavior of
people who also accept the rule as a ground for criticizing
deviations. Like all social rules, then, the rule of recognition has
an external and internal aspect. The external aspect of the rule of
recognition consists in general obedience to those rules satisfying
its criteria of validity; the internal aspect is constituted by its
acceptance as a public standard of official behavior. Hart believes it
is this double aspect of the rule of recognition that accounts for its
normativity and enables him to distinguish his theory from Austin's
view of law as a system of coercive commands. For, as Hart points out,
a purely coercive command can oblige, but never obligate, a person to
comply (see Section I, supra).
Dworkin argues that this feature of Hart's theory commits him to the
claim that there cannot be any disagreement about the content of rule
of recognition:
Hart's qualification … that the rule of recognition may be
uncertain at particular points … undermines [his theory]…. If judges
are in fact divided about what they must do if a subsequent Parliament
tries to repeal an entrenched rule, then it is not uncertain whether
any social rule [of recognition] governs that decision; on the
contrary, it is certain that none does (Dworkin 1977, pp. 61-62).
On Dworkin's view, the requirements of a social rule cannot be
uncertain since a social rule is constituted by acceptance and
conforming behavior by most people in the relevant group: "two people
whose rules differ … cannot be appealing to the same social rule, and
at least one of them cannot be appealing to any social rule at all"
(Dworkin 1977, p. 55).
Jules Coleman responds that if the rule of recognition is a social
rule, then Hart's view implies there must be general agreement among
the officials of a legal system about what standards constitute the
rule of recognition, but it does not imply there cannot be
disagreement as to what those standards require in any given instance:
The controversy among judges does not arise over the content of
the rule of recognition itself. It arises over which norms satisfy the
standards set forth in it. The divergence in behavior among officials
as exemplified in their identifying different standards as legal ones
does not establish their failure to accept the same rule of
recognition. On the contrary, judges accept the same truth conditions
for propositions of law…. They disagree about which propositions
satisfy those conditions (Coleman 1982, p. 156).
Coleman, then, distinguishes two kinds of disagreement practitioners
can have about the rule of recognition: (1) disagreement about what
standards constitute the rule of recognition; and (2) disagreement
about what propositions satisfy those standards. On Coleman's view,
Hart's analysis of social rules implies only that (1) is impossible.
Under the U.S. rule of recognition, for example, a federal statute is
legally valid if and only if it has been enacted in accordance with
the procedural requirements described in the body of the Constitution
and is consistent with the first fourteen amendments. Since, on Hart's
view, the U.S. rule of recognition is a social rule, U.S. officials
must agree on the procedures the federal government must follow in
enacting law, the set of sentences constituting the first fourteen
amendments, and the requirement that federal enactments be consistent
with those amendments.
But Hart's view of social rules does not imply there cannot be any
disagreement about whether a given enactment is consistent with the
first fourteen amendments. Legal practitioners can and do disagree on
what Hart calls penumbral (or borderline) issues regarding the various
amendments. While every competent practitioner in the U.S. would
agree, for example, that torturing a person to induce a confession
violates the fifth amendment right against self-incrimination, there
is considerable disagreement about whether compelling a defendant to
undergo a psychiatric examination for the purpose of increasing her
sentence also violates that right. On Coleman's view, there is nothing
in Hart's analysis of social rules that precludes such borderline
disagreements about whether a practice is consistent with the Fifth
Amendment.
Despite its resemblance to this earlier criticism, Dworkin's semantic
sting argument takes aim at a deeper target. The semantic sting
targets all so-called semantic theories of law that articulate the
concept of law in terms of "shared rules … that set out criteria that
supply the word's meaning" (Dworkin 1986, p. 31). Thus, while the
earlier criticism is directed at Hart's extraneous account of social
rules, the semantic sting is directed at what Dworkin takes to be the
very heart of positivism's theoretical core, namely, the claim that
there are shared criteria that exhaust the conditions for the correct
application of the concept of law.
At the root of the problem with semantic theories, on Dworkin's view,
is a flawed theory of what makes disagreement possible. According to
Dworkin, semantic theories mistakenly assume that meaningful
disagreement is impossible unless "we all accept and follow the same
criteria for deciding when our claims are sound, even if we cannot
state exactly, as a philosopher might hope to do, what these criteria
are" (Dworkin 1986, p. 45). On this flawed assumption, two people
whose concepts of law differ cannot be disagreeing about the same
thing.
Perhaps with Coleman's response to his earlier criticism in mind,
Dworkin concedes that semantic theories are consistent with
theoretical disagreements about borderline or penumbral cases: "people
do sometimes speak at cross-purposes in the way the borderline defense
describes" (Dworkin 1986, p. 41). But Dworkin denies semantic theories
are consistent with theoretical disagreement about pivotal (or core)
cases. According to semantic theories, he says,
[Y]ou and I can sensibly discuss how many books I have on my
shelf, for example, only if we both agree, at least roughly, about
what a book is. We can disagree over borderline cases: I may call
something a slim book that you would call a pamphlet. But we cannot
disagree over what I called pivotal cases. If you do not count my copy
of Moby-Dick as a book because in your view novels are not books, any
disagreement is bound to be senseless (Dworkin 1986, p. 45).
The problem, on Dworkin's view, is that many difficult appellate cases
like Riggs involve theoretical disagreement about pivotal cases:
The various judges who argued about our sample cases did not think
they were defending marginal or borderline claims. Their disagreements
about legislation and precedent were fundamental; their arguments
showed that they disagreed not only about whether Elmer should have
his inheritance, but about why any legislative act, even traffic codes
and rates of taxation, impose the rights and obligations everyone
agrees they do…. They disagreed about what makes a proposition of law
true not just at the margin but in the core as well (Dworkin 1986, pp.
42-43).
On Dworkin's view, the judges in Riggs were not having a borderline
dispute about some accepted criterion for the application of the
concept of law. Rather, they were having a disagreement about the
status of some putatively fundamental criterion itself: the majority
believed, while the dissent denied, that courts have power to modify
unambiguous legislative enactments.
Accordingly, theoretical disagreement about pivotal cases like Riggs
is inconsistent with semantic theories of law, on Dworkin's view,
because it shows that shared criteria do not exhaust the proper
conditions for the application of the concept of law. For the majority
and dissenting judges in Riggs were having a sensible disagreement
about law even though it centered on a pivotal case involving the
criteria of legal validity. Thus, Dworkin concludes, the concept of
law cannot be explained by so-called criterial semantics.
In response, Hart denies both that his theory is a semantic theory and
that it assumes such an account of what makes disagreement possible:
[N]othing in my book or in anything else I have written supports
[a semantic account] of my theory. Thus, my doctrine that developed
municipal legal systems contain a rule of recognition specifying the
criteria for the identification of the laws which courts have to apply
may be mistaken, but I nowhere base this doctrine on the mistaken idea
that it is part of the meaning of the word 'law' that there should be
such a rule of recognition in all legal systems, or on the even more
mistaken idea that if the criteria for the identification of the
grounds of law were not uncontroversially fixed, 'law' would mean
different things to different people (Hart 1994, p. 246).
Instead, Hart argues that his theory of law is "a descriptive account
of the distinctive features of law in general as a complex social
phenomenon" (Hart 1994, p. 246). Hart presents his theory, not as an
account of how people apply the concept of law, but rather as an
account of what distinguishes systems of law from other systems of
social rules. On Hart's view, it is the presence of a rule of
recognition establishing criteria of validity that distinguishes law
from other systems of social rules. Thus, according to Hart, Dworkin's
criticism fails because it mischaracterizes positivism as providing a
criterial explanation of the concept of law.
5. References and Further Reading
* Austin, John, Lectures on Jurisprudence and the Philosophy of
Positive Law (St. Clair Shores, MI: Scholarly Press, 1977)
* Austin, John, The Province of Jurisprudence Determined
(Cambridge: Cambridge University Press, 1995)
* Bentham, Jeremy, Of Laws In General (London: Athlone Press, 1970)
* Blackstone, William, Commentaries on the Law of England
(Chicago: The University of Chicago Press, 1979)
* Coleman, Jules, "Negative and Positive Positivism," 11 Journal
of Legal Studies 139 (1982)
* Dworkin, Ronald M., Law's Empire (Cambridge: Harvard University
Press, 1986)
* Dworkin, Ronald M., Taking Rights Seriously (Cambridge: Harvard
University Press, 1977)
* Finnis, John, Natural Law and Natural Rights (Oxford: Clarendon
Press, 1980)
* Fuller, Lon L., The Morality of Law, Revised Edition (New Haven:
Yale University Press, 1969)
* Fuller, Lon L., "Positivism and Fidelity to Law–A Reply to
Professor Hart," 71 Harvard Law Review 630 (1958)
* Faber, Klaus, "Farewell to 'Legal Positivism': The Separation
Thesis Unraveling," in George, Robert P., The Autonomy of Law: Essays
on Legal Positivism (Oxford: Clarendon Press, 1996), 119-162
* George, Robert P., "Natural Law and Positive Law," in George,
Robert P., The Autonomy of Law: Essays on Legal Positivism (Oxford:
Clarendon Press, 1996), 321-334
* Hart, H.L.A., The Concept of Law, Second Edition (Oxford:
Clarendon Press, 1994)
* Hart, H.L.A., "American Jurisprudence through English Eyes: The
Nightmare and the Noble Dream," reprinted in Hart, H.L.A., Essays in
Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983), 123-144.
* Hart, H.L.A., "Book Review of The Morality of Law" 78 Harvard
Law Review 1281 (1965)
* Hart, H.L.A., Essays on Bentham (Oxford: Clarendon Press, 1982)
* Hart, H.L.A., "Positivism and the Separation of Law and Morals,"
71 Harvard Law Review 593 (1958)
* Himma, Kenneth E., "Judicial Discretion and the Concept of Law,"
forthcoming in Oxford Journal of Legal Studies vol. 18, no. 1 (1999)
* Mackie, J.L., "The Third Theory of Law," Philosophy & Public
Affairs, vol. 7, no. 1 (Fall 1977)
* Moore, Michael, "Law as a Functional Kind," in George, Robert P.
(ed.), Natural Law Theory: Contemporary Essays (Oxford: Clarendon
Press, 1992), 188-242
* Raz, Joseph, The Authority of Law: Essays on Law and Morality
(Oxford: Clarendon Press, 1979)
* Raz, Joseph, "Authority, Law and Morality," The Monist, vol. 68, 295-324
* Raz, Joseph, "Legal Principles and the Limits of Law," 81 Yale
Law Review 823 (1972)
* Raz, Joseph, "Two Views of the Nature of the Theory of Law: A
Partial Comparison," Legal Theory, vol. 4, no. 3 (September 1998),
249-282
* Waluchow, W.J., Inclusive Legal Positivism (Oxford: Clarendon Press, 1994)
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