John Austin’s blueprint of legal positivism, contains what is perhaps the most influential premise in legal philosophy.
‘The existence of a law is one thing, and its merits or demerits are another.’
Austin’s refreshingly simple phrase sums up the separation thesis, the concept upon which legal positivism rests, that there is no necessary connection between legal validity and morality.
The essence of law has no dependence on ethical codes, and the law can exist as it is, without being what it ‘ought’ to be. Instead of moral evaluations, the recognition of legal validity requires in short, two questions to be asked. First, whether the correct authority created the law and second, whether the correct authority followed the correct procedure to make the law. If the answer to both questions is yes, the law is valid, and should be followed.
Naturally, one may consider this to be a tyrant’s dream- a legal theory that both dispels a necessary dependence of law on morality and outlines a fundamental duty to obey the law.
But jurisprudence is associated with detachment, and with ideas that rarely burst through the academic bubble in which they cultivate. While positivism is certainly one of the bubble-bursting ideas, the observation that theory is scarcely translated to reality holds true.
Positivism and tyranny do not go hand in hand.
Nazi laws serve as an example which highlights the implications, and the controversy, of legal positivism on the nature of law. In 1940s Germany, a woman handed her husband in to the state for critiquing the Fuhrer – a crime that resulted in him being sent to the front. Having survived the war, he instituted legal action against his wife after the fall of the Nazi government. The wife’s defence was such that she had not committed a crime as she, and indeed the court, had acted in accordance with the statute of her time. However, she was found to have acted in breach of the Penal code, remaining law throughout this period, stating that it was a crime to ‘illegally deprive someone of their freedom’.
Implicit in this ruling, is the end of the legal validity of the statute that she cited in her defence, otherwise the deprivation of freedom, in this case, would’ve been legal and wholly compliant with the penal code. The court, in their summary, also described the Nazi laws as contrary to the conscience and sense of justice in all decent human beings. The German courts, in a show of disgust and apology for the actions of the previous regime, took the natural law approach. Convicting the wife was a clear display that laws are made illicit and invalid when they fail to give morality its due. In a way, this satisfies the very natural emotional tendency to say that there would be some laws – so abhorrent and adverse to our intuitive moral understandings – that they could not be deemed valid.
There are surely some higher moral rules we ought to abide by that transcend borders, culture, and importantly, man-made statute. The positivist’s approach, however, would hold that the court’s decision was wrong. The woman acted with respect to valid law that had been codified in accordance with the Enabling Act passed by the Reichstag. This satisfies the two earlier questions determining validity, or what Hart would call the ‘rule of recognition’: the correct authority followed the correct legislative procedure to create the law. In the positivist’s view, the integrity of a legal system rests in a common-sense acceptance of what the law is: a socially constructed set of commands, or true to its name ‘posits’, based on a posteriori social fact (derived from observed facts).
To not recognise this would be to undermine the integrity of legal procedure and nature, just as the Nazi Kangaroo courts did through intentionally overlooking evidentiary and procedural standards. Therein lies the controversy. To the unacquainted eye, legal positivism prioritises the integrity of a legal system and its law-making-method over the integrity of ‘moral truths’. To that same eye, the premise of legal positivism that removes any necessity of moral satisfaction in legal validity creates an infrastructure through which tyranny will thrive.
However, to stick with the case of Nazi laws, the positivist does not deprive us of retribution. All that is asked, is that in the name of legal consistency, predictability, pedigree, and respect for the true nature of law, the laws are repealed, and a new statute is passed enabling the prosecution of those who complied with them. In this way, the same outcome is reached - the wife is convicted - all while legal validity is not stripped on moral grounds, which would beg the question of where the line is drawn.
Beyond this case study, there are defences of positivism which reduce the fear of tyranny to an argument reliant of the most slippery of slopes. A separation of law and morality does not follow from the lack of a necessary connection between law and morality. Positivism simply makes the claim that law can be enacted without that law complying with set of established moral or theological rules, not that the enactment of law must not involve compliance with those same moral or theological rules.
Any suggestion that the law and morality are not closely linked is mistaken. Revolt by revolt, the hereditary tradition which has historically guided law-making was democratised, and the rule of law established. The mandate to rule derived not from the divine or from one’s family, but from the people. Consequently, the power-cementing tendencies found in leaders became tamed by the people and their moral desires and sentiments. Indeed, one could say that power became more effectively cemented through democratic re-election and thus the continued satisfaction of the electorate’s moral desires, than through typical authoritarian methods. This is perhaps why the modern power-cementer wears a populist disguise, undesirable but nonetheless subject to the democratic will.
The other causal direction, of course, is from law to morality. Law establishes habits that trickle unconsciously throughout society, forming moral biases on both the personal, and later the macro level. Moreover, there is merit in the argument that if the law’s function is to create social order, and the law’s legitimacy is democratically derived, then the obligations proscribed in law itself adds to the aggregate of moral standards and rules.
The positivist, then, does not call for a separation of law and morality. Rather, they recognise that the law may be linked, not inextricably however, to morality.
Distinctively, a separation of legal validity and morality does not follow from the lack of a necessary connection between legal validity and morality. Positivism dismisses the notion that, by default and by necessity, legal validity must comply with moral codes. In this assertion, there is still room for a necessary connection between legal validity and morality, if it exists voluntarily within the confines of a particular legal system.
Hart’s positivist theory was challenged by Dworkin, a notable natural law theorist, on the grounds that his notion of a ‘rule of recognition’ – the meta-rule that recognises when all future laws gain validity - failed to accommodate moral principles which commonly guide legislative and adjudicative processes. Simply, the positivist’s rule-based approach arguably does not leave scope for the legal and moral principles that are present in legal systems. For the natural law theorist, this, albeit on a technicality of a prominent conception of positivism, disproves it.
In disagreement, a rule of recognition can, and often will, incorporate, and respect moral principles in legislative processes. In the United States of America, for instance, the bill of rights, which is in essence the codification of moral principles, must be respected in every aspect of the legislative process. In the United Kingdom, Judicial Review will swiftly follow allegations of executive infringement on individual rights. In this way, there is almost a ‘contingently-necessary’ relationship between legal validity and moral principles. The USA and UK legislatures could plausibly devise a law abolishing the dependence of statute on moral codes and pass a morally abdominal law, and it would still be a law. But until that day, ‘opt-in necessity’, so to speak, will govern law-making.
Finally, beginning this analysis, I spoke of the academic bubble or greenhouse where great legal minds reside and engage in intellectual ping-pong. I also spoke of how the produce of this academic greenhouse rarely fills shelves in the real world. In other words, it is one thing for jurists, lawmakers, and judges to accept a conception of legal validity, and another for the people who that law effects to accept that same conception.
Legal theorists are frustratingly familiar with this, and due that positivists accompany their ideas of the nature of the law, with an account of how individuals should interact with the law.
For Bentham, the tutor of Austin, we are to ‘obey punctually and censure freely’, expressing a basic obligation to obey the law, but also an obligation to scrutinise the law. Scrutiny, of course, can manifest in many ways, most notably perhaps through vocal moral opposition.
For Hart, a gay man who stressed the importance of privacy in one’s sexual affairs, all while dominating the positivist school of thought in a time where homosexuality was criminalised, laws lose their validity at the point where society disagrees extensively with the rule governing the legislative process, or in his terms, the rule of recognition. Linking this to tyranny, the abolitionist Fredrick Douglas’ made the assertion that ‘the limits of tyrant are prescribed by the endurance of those whom they oppress’.
To conclude, positivism and tyranny do not go hand in hand. ‘On paper’, it may appear easier for the tyrant to dissect and restructure law under positivism, which is a social construct of social facts, than it would be for the tyrant to dissect and restructure law under the naturalist conception, where laws are inextricable tied to abstract and eternal moral understandings. Indeed, the theory of legal positivism may seem accommodating to the characteristics of despotism, particularly when defined in opposition to natural law theory.
However, there are numerous assumptions that must be made for the appearance of compatibility ‘on paper’, or in theory, to translate to apparent truth in reality. One prominent assumption, as discussed, is the inference of a necessary separation from the lack of a default necessary connection. This applies to both law and morality, and legal validity and morality.
The final, and perhaps the most significant barrier to tyranny that can exist harmoniously with the positivist’s account of legal validity, is the barrier of electoral sentiment. Positivism, then, has been a renowned influence in both jurisprudence, and the structure of legal systems. From the erections of stone manuscripts etched with Mesopotamian law, establishing, and extending its jurisdiction through the simple process of enacting, then inscribing rules, to the UK Parliamentary system where rules become law at the point of royal assent, and are, at the most, precariously structurally bound by moral codes. But however great positivism’s influence may be, it does not extend to the ignition of a slippery slope to tyranny.
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