*On Legal Positivism and Natural Law - Does it really matter?*
(This is modified somewhat from the essay I handed in for my Intro to Legal Theory. The footnotes have been omitted.)
The issues are stated thus. Firstly, does separating law and morality (and the confusion that ensues) serve as a bulwark against unjust laws, hold? Secondly, if not, then would a theory of law that insists that there is a nexus between law and morality ensure that unjust laws are not promulgated?
It is suggested that there needs to be a distinction between Morality on the one hand i.e. ethics and morality as exists within a certain society i.e. ethos, what that society perceives to be good.
The necessary link or lack thereof between Law and Morality is what separates the Natural Lawyers from the Legal Positivists. The Separation Thesis is stated thus: There is no necessary connection between Law and Morality, that what Law is and what it ought to be are two separate issues though they might link. Or as Hart puts it, "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."
Logically then the law can be bad. Austin states clearly that, "The existence of law is one thing: its merit or demerit is another. Whether it be or not be is one enquiry; whether it be or be not conformable to an assumed standard is a different enquiry." Historical examples abound including slavery in USA, apartheid in South Africa and the Nuremberg Laws of Nazi Germany.
Natural Lawyers will claim on the other hand that because of the nexus between law and morality: Lex Injusta non est Lex, an unjust law is not law because it has no moral force and ought not be obeyed. However, the caveat as stated by Aquinas is this, that there might be an obligation to obey an unjust law, if by opposing it would create 'scandal and greater harm' and thereby creating a greater injustice. If everyone felt at liberty to disobey the law, it undermines the legal system and social order, paving the way to anarchy. So essentially then, both sides do agree that law can serve both good and evil ends and still be valid.
However, Legal Positivist would then assert that, if one does not confuse Law with Morality, it prevents an automatic blind acceptance that the Law is Good and hence would cause citizens to subject laws to greater scrutiny and thereby providing a bulwark against Unjust Laws. Its critique comes in two forms; one questions its underlying assumptions, the other claiming that it allows for such an occurrence in the first place.
The first critique questions whether the behavioral patterns of citizens would change simply because they now learn that the Separation Thesis exists. Raz makes the point that a conscientious person (Ghandi) would continue in his previous vein and subject all laws to critical analysis whether or not he learns of the Separation Thesis. On the other hand, an unconscientious person (Eichmmer) would similarly act the way he always has and obey the law regardless. But Raz himself grants that most people fall within these two extremes. Hence the question is, are those on the margins more likely than not to critically evaluate the law if they learn that it does not carry an automatic moral stamp and the Legal Positivist position then does seem logically tentable.
The second critique comes via the way of Natural Law. They would argue that Legal Positivism disarms the populace (and judges) by denying them a conceptual weapon (the law must be moral to be law and hence creating an obligation to obey) in which to wield against unjust laws. Fuller further asserts that Natural Law would engender a respect for law's Morality and thus provide a mechanism to resist unjust laws where applicable. Similarly, Dworkin's theory of adjudication claims to prevent a blind application of laws (rules) through the use of legal principles, and also ensures 'integrity' in law by constraining, through the requirement of 'fit', unfair legislation and the extent to which their own values can make law.
The counter-arguments come on two levels, the meta argument about the broader implications on morality in and of society and the examination on the role and ability of judges.
Just because something has societal acceptance (moral) does not automatically make it Moral. Sharia Law claims to be Morality but many would disagree with its morality seeing as it advocates the stoning of adulterers and its evidentiary requirements regarding 4 male witnesses to a rape. Furthermore, given the plethora of valid moral viewpoints premised on religion or natural rights, it results in an inherent subjectivity. So even where there is a general consensus on what is 'right' or even a minimum content of morality, it nevertheless does not satisfactory establish what is or is not Moral. The general prohibition against killing (murder) does not establish its scope and generates opposing viewpoints on stem-cell research, abortion, euthanasia and capital punishment.
Moreover, a viewpoint that then uses objective criteria to solidify its claim to universality does not escape choice (personal bias) in moral values. Fuller's attempt to create an objective secular Morality via his seven basic human goods automatically runs into the above charge. And neither does 'practical reasonableness' resolve tenacious moral issues. Finnis' 'inner morality' of law seems to confuse procedural efficiency with Morality, allowing Hart with his example of the 'Inner Morality of Poisoning' to point out that efficiency is no bar to injustice. In fact as Public Law students are no doubt painfully aware now, this so-called 'thin' Rule of Law must be coupled with a substantive notion of fairness/fundamental liberties/Morality if one wants to prevent law that is procedurally fair but produces substantive injustice.
Secondly, as a result, when one starts to argue as Dworkin does, that judges when adjudicating are guided by morality, it nevertheless still does not necessarily make those laws Moral. As such, regardless of whether one insists on whether there is a necessary connection between law and morality, the separation thesis still holds. Furthermore, it is questionable whether judges can resist the Legislature intent upon stifling their ability to determine law by morality or to determine it at all e.g. Zimbabwe. Without a robust view of Constitutional Supremacy, judicial independence, real judicial review or the use of administrative law in the alternative, one must pray that the government does not abuse its powers, or hope that the people take to the streets in revolution if they do.
In conclusion, all laws ought to be critically evaluated for its morality and citizens ought not to be beholden to whatever the theory in vogue to determine that for them. For as long as distinctions exists between morality and Morality (as they must), critical evaluation is a necessity.