Inclusive Legal Positivism.

• Author: Soper, Philip

INTRODUCTION

Issues in philosophy have life cycles of their own. Problems neglected or forgotten revive -- either in response to the times (witness the renewed interest in political theory during the Vietnam War) or in response to a new and original argument (the revival of Kantian ethics after Rawls). Once revived, these issues often enjoy a brief period of intense flourishing, followed by a gradual return to dormancy -- either because the times move on to make the issue less pressing, or because a point of diminishing originality or interest is reached in academic discussions.

The nature-of-law issue in jurisprudence might seem to be in the late stages of one of these periodic cycles. Revived more than thirty years ago with the appearance of H.L.A. Hart's The Concept of Law(1) and energized by Ronald Dworkin's original reformulation of the "natural law" side of the issue,(2) the entire field flourished over the next quarter century in a way that was both unprecedented and bound to lead to subtle and enlightening refinements.

In view of the extensive interest in this issue in recent years, one understandably might think that we are now close to exhaustion and that little more can be expected until the next turn of the cycle. All the more pleasant to discover Professor Waluchow's(3) fine book. Waluchow's contribution is original and beautifully crafted, and it also provides one of the best overviews of the debate during the past thirty years. The writing style is enviable for its clarity, and the argument is admirably honest, giving fair due to opposing views and anticipating and handling virtually all serious objections to the argument that might occur to any reader. Although the book is pitched at a fairly high level -- one that seems to take for granted reader familiarity with much of the literature in the area -- the result for those who follow this field is a rich and rewarding tour of the landscape. Despite the familiar themes and issues, Waluchow never fails to place his own stamp on them by the way he summarizes, clarifies, or refines the ideas. The book deserves a place on anyone's jurisprudence shelf.

What makes Waluchow's book so intriguing, in part, is that it purports to aim at a very narrow question -- a small gap, one might think, in positivist legal theory. Waluchow indeed is refreshingly, if unnecessarily, modest in confessing to a "fairly narrow scope" and a "lack of novelty" in his thesis (p. 4). But the gap he aims to fill, as is often the case, proves to be a chink through which one sees, with the aid of Waluchow's analysis, deep inside the natural law-positivism debate. As a result, one comes away with a clearer view of the entire field as well as a powerful argument for a new and arguably better form of positivism.

The small gap in the positivist literature results from an interesting twist on the usual question that underlines these debates. The question usually posed is whether there is a necessary (conceptual) connection between law and morality; Waluchow asks instead whether there is a necessary lack of connection between these concepts. This shift in focus reflects developments in legal theory since Hart's book first appeared. Whereas Hart suggested that connections between law and morality were, at best, contingent rather than necessary, subsequent developments in the positivist literature, supported by characterizations of positivism from the natural law side, support a stronger thesis: Far from there being no necessary connection between law and morality, there is a necessary separation of law and morality; moral standards cannot be part of the "law" in legal systems.

Waluchow calls this strong thesis, most clearly associated with the work of Joseph Raz,(4) "exclusive positivism." He sets out, in contrast to Raz, to defend "inclusive positivism" -- the view, originally suggested by Hart, that law may include moral standards, but need not do so. In the course of the argument, Waluchow also presents two other theses: (1) Inclusive positivism is distinguishable from and superior to Dworkin's alternative, nonpositivist account of how moral principles figure in law; and (2) Although it is a contingent question whether a legal system includes moral principles among the legal standards courts are asked to apply, it is in general a good thing for them to do so.

Along the way to establishing these claims, Waluchow develops a number of original distinctions and insights into the current debate -- too many to be summarized usefully here. In this review, I focus on the central argument of the book -- whether and why positivism can or cannot accept moral principles as part of the law and, assuming it can, whether the case for positivism over natural law is thus strengthened. In brief, I argue: (1) that Waluchow does establish a case for viewing inclusive positivism as superior in some respects to exclusive positivism; but (2) that this victory is only partial -- neither version of positivism, exclusive or inclusive, is quite good enough. The central idea of the natural law theorist concerning the conceptual connection between law and morality survives the challenge of both forms of positivism because that connection is of a different -- and more modest -- kind than commonly has been assumed.

1. THE BACKGROUND

   The question about the status of moral principles in legal theory began as a by-product of the debate that followed Dworkin's challenge to Hart.(5) Dworkin stressed that the "right answers" to legal decisions were, in theory, to be found by undertaking a Herculean inquiry in two dimensions: (1) institutional history -- convention and legal norms identified by the ordinary positivist's pedigree (the "fit" dimension); and (2) the political and moral theories that provide the best justification for using those conventions as the basis for state coercion (the "moral" dimension). Dworkin's theory encountered two initial responses designed to suggested that the theory might, after all, be just another form of positivism. First, because the requirement of "fit" seemed to restrict Dworkin's moral principles to the conventions of the particular society in which judges found themselves (conventional morality, not true morality), some claimed that Dworkin had advanced only a more refined version of positivism: conventional moral principles should be added to the positivist's conventional rules as part of the "pedigree" or test for determining legal norms.(6) Second, even if Dworkin was right that the moral dimension required a judge to reach beyond conventional morality into true principles of political morality, that fact was itself the result of social conventions authorizing or requiring judges to adopt this particular method of adjudication. Thus, just as Hart had suggested that legal systems contingently could include moral standards (as in the Due Process Clause of the United States Constitution), so Dworkin's theory could be viewed as reflecting an assignment to judges in Anglo-American jurisdictions to test laws by reference to political morality -- a contingent fact about Anglo-American jurisprudence rather than a necessary feature of all legal systems.(7)

   It was Dworkin's response to this suggestion for putting a positivist gloss on his theory that led to the first explicit statement of the thesis that Waluchow calls "exclusive positivism." Positivism, according to Dworkin, could not invite judges simply to use moral standards to decide cases and still remain positivism. That is because positivism

   is connected to a more general theory of law -- in particular to a picture of law's function. This is the theory that law provides a settled, public and dependable set of standards for private and official conduct, standards whose force cannot be called into question by some individual official's perception of policy or morality.(8)

   Two features about morality, according to Dworkin, prevent a positivist from counting moral standards as part of the law: first, because moral standards are inherently controversial, they could count as "law" only by abandoning the positivist's central thesis about law's essential function; second, even if one thinks moral standards rest on objectively determinable "moral facts," that claim about the status of moral judgments is itself controversial; the whole point of positivism, according to Dworkin, is to provide a theory of law that is "independent of any controversial theory either of metaethics or of moral ontology."(9)

   As noted, Dworkin's claim about the legal status of moral standards under positivism initially was tendered simply as a response to critics of his theory; it was not the result of a full-fledged argument about the "essence" of positivism. But, then, neither was Hart's contrary suggestion. Hart's remark that legal norms could incorporate moral standards seemed almost an offhand, casual way of responding indirectly to some of the arguments of his main antagonist at the time, Lon Fuller. Fuller's emphasis on the role of purpose and reason in the interpretation and application to legal rules would be consistent with the denial of a necessary connection between law and morality if the appeal to such standards were simply the result of a contingent incorporation of morality in legal provisions.(10)

   In his later work, Dworkin repeated his claim about the essence of positivism. By now the version of positivism that Dworkin thought inconsistent with the "essence" of positivism had assumed a new name -- "soft conventionalism." "[S]oft conventionalism instructs judges to decide according to their own interpretation of the concrete requirements of legislation and precedent, even though this may be controversial . . . . [S]oft conventionalism is not really a form of conventionalism at all . . . . It is, rather, a very abstract, underdeveloped form of law as integrity."(11) Despite the new name, Dworkin's defense of the view that soft...