An Analysis of Legal Philosophy

(Challenging, but important and worthwhile)

Legal Philosophy

...one might wonder whether it makes sense to speak of “law” as a self-defined or unity group at all. Brian H. Bix in Jurisprudence: Theory and Context (2019, p. 11)

Alasdair MacIntyre in God, Philosophy, Universities (2009) described the academic fragmentation of knowledge and the absence of any integrated and overall view of things. A biological perspective with a multidimensional understanding of human nature can provide a useful framework of analysis for the fragmented field of philosophy, including the field of legal philosophy.

Most of the disputes in legal theory center around the claims of legal positivism and its critics. Legal positivism doesn’t begin with any moral assertions and, in fact, it does just the opposite. In an attempt to be scientific, legal positivism thinks it is worthwhile to separate a description of law based on just empirical facts from any normative or moral judgments. In this manner the “hard” legal positivists don’t find any universally accepted legal values such as equality, freedom or human rights.

There developed several variations of legal positivism represented in general by John Austin, the most prominent nineteenth century legal theorist and H. L. A. Hart, the most prominent twentieth century legal theorist.

John Austin (1790–1859)

John Austin, an English legal philosopher, had a goal to transform law into a true science. Law, according to Austin, is a social fact and it could be described in strictly empirical terms. Leslie Green, a legal philosopher at Oxford, has stated that earlier positivists such as Hobbes, Bentham and Austin “thought that law is constructed of commands, threats, and obedience. A sovereign is a person or group who enjoys the habitual obedience of most others but does not habitually obey anyone else. Law is a general command of a sovereign backed by force” (Hart, 2012, p. xx).

H. L. A. Hart (1907–1992)

H. L. A. Hart was a Professor of Jurisprudence at Oxford University. In his book Concepts of Law (1961) he began with a critique of John Austin’s theory of law. As an alternative, Hart proposed a “rule of recognition.” Hart’s project was also reductionist, but he also felt that law was too complex for a definition and therefore he described

what turned out to be several concepts of law and several aspects of a rule or rules of recognition. This inverted Austin’s description of law as the command of a sovereign to one of social “rules of recognition.”

All of the proponents of legal positivism agree that it is based on sociology and that law and legal systems are social constructions. When one considers both human nature and society to be multidimensional, however, the different critiques of legal positivism are predictable. One would expect a merely objective social description of law to be criticized from metaphysical, rational, and individual perspectives. The most prominent critics have been Lon Fuller, John Finnis, and Ronald Dworkin.

Lon Fuller and John Finnis both critiqued legal positivism using versions of a Natural Law that can be known by reason. Roman Law based Natural Law on our capacity of reason to know a natural moral order. St. Thomas Aquinas, a medieval theologian, attempted to integrate the two great sources of Western Civilization based on faith and reason by describing Natural Law as that part of Eternal Law that we can also know by reason.

Lon Fuller (1902–1978)

Lon Fuller, an American legal philosopher, in his book The Morality of Law (1964), opposed legal positivism and described a secular and procedural form of Natural Law theory.

Fuller described eight principles of legality that must be met for legal rules to count as genuine laws. These “principles of legality” would assure that all law would embody certain moral standards of fairness and predictability that constitute important aspects of the rule of law.

Fuller also wrote that “Where the morality of aspiration starts at the top of human achievement, the morality of duty starts at the bottom. It lays down the basic rules without which an ordered society is impossible, or without which an ordered society directed toward certain specific goals must fail of its mark. It is the morality of the ‘Ten Commandments’. It speaks in terms of ‘thou shalt not,’ and less frequently, of ‘thou shalt.’ It does not condemn men for failing to embrace opportunities for the fullest realization of their powers. Instead, it condemns them for failing to respect the basic requirements of social living” (Fuller, 1964, pp. 5–6).

Hart, in the very first paragraph of his 1965 book review of Fuller’s The Morality of Law, remarked that it may be “that our starting points and interests in jurisprudence are so different” that he and I “are fated never to understand each other’s works” (Hart, 1965, p. 593).

John Finnis

John Finnis has been one of the most prominent advocates of Natural Law theory, but his newer formulation of Natural Law has been somewhat controversial.

Finnis, in his book Natural Law and Natural Rights (2011), based his opposition to legal positivism on concepts of the human good and practical reason. In describing what is worthwhile, valuable, and desirable in life Finnis describes seven “basic forms of good.” Finnis also describes nine “basic requirements of practical reasonableness” and states that practical reason has direct unmediated apprehension of basic human goods. Finnis appears to have two objectives in his interpretation of a new Natural Law. First, Finnis attempts to avoid what has been called the naturalistic fallacy of deriving an “ought” from and “is.” Secondly, Finnis and the “new Natural Law” philosophers want to avoid any metaphysical, religious, or teleological claims. The good can be known intuitively by practical reason and is self-evident rather than being derived from nature or theism.

In an article entitled “What is the Philosophy of Law?” Finnis (2014) also wrote, “The philosophy of law is not separate from ethics and political philosophy, but dependent on them” (p. 133).

Ronald Dworkin

Ronald Dworkin’s critique of legal positivism has been that it doesn’t take individual human rights seriously. In Taking Rights Seriously (1977), Dworkin, another Oxford legal philosopher, emphasized individual rights as opposed to a descriptive sociology of law. Dworkin also wrote that “in countries with complex legal systems such as the United States and Great Britain “no ultimate distinction can be made between legal and moral standards, as positivism insists” (p. 65).

Together these legal theories represent four different approaches to legal philosophy. The proponents within legal positivism and their critics are addressing different questions and perspectives with different starting points and assumptions in addition to focusing on different aspects of human nature and the world in which we live. A fair assessment would be that each of the legal theorists probably has a valid and valuable point. The critique would not be that they are wrong, but that they are not being inclusive enough. A multidimensional understanding of human nature brings some understanding and cohesion to this fragmentation.

Judge Richard Posner and the Holmes Lectures of 1997

( I attended these lectures at Harvard Law School. Legal Positivism was the prevailing climate of opinion and there was only one challenging question from the audience)

H. L. A. Hart (1958) presented his views in a Holmes Lecture at Harvard Law School in 1959 entitled, “Positivism and the Separation of Law and Morals.” Almost 40 years later, Richard A. Posner, Chief Judge of the United States Court of Appeals for the Seventh Circuit, gave the Holmes Lectures at Harvard Law School in 1997 entitled, “The Problematics of Moral and Legal Theory” (Posner, 1998). Judge Posner, by applying the same descriptive sociology of legal positivism in law to morality, stated that “morality is local” and “There are no interesting moral universals” (p. 1640). This combination of only descriptive positivism in both law and morality results in a position of relativism in moral, political, and legal philosophy.

Posner’s major argument against academic moralism was that even within the United States, “moral theorists are up against the brute fact that there is no consensus on any moral principles from which answers to contested moral questions might actually be derived” (p. 1657). Posner thus recognized academic moral philosophy as being fragmented. Posner stated that “every moral theory takes for granted that a uniform morality is desirable, while what a society like ours needs is moral variety, in fact, we need some immoralists, or at least some amoralists” (p. 1642).

Posner was also provocative in the examples that he used. He stated that morality was local, and the most local was subjectivism. He described the Nuremberg trials of Nazi leaders to be politically right, “But it was not right because a trial could produce proof that the Nazis really were immoralists; they were, but according to our lights, not theirs” (p. 1645). Posner also claimed that inclusiveness, lacking as it does any definite scope of content, has no moral valence. Posner stated that “one reading of Nietzsche is that he was against morality, but another is that he simply preferred, on aesthetic grounds that are impossible to refute, the moral code of a warrior society, a code both cruel and inegalitarian... There is no common ground to appeal to in arbitrating among competing moralities” (p. 1651).

Posner then, on the other hand, also stated that he does not embrace a “vulgar relativism” that teaches that we have a moral duty to tolerate cultures that have moral views different from ours. He also stated that he is not a moral relativist in the “anything goes” sense more accurately described as moral subjectivism (p. 1642). He found no criticism of “moral theory” as a synonym for normative reasoning (p. 1639). He described law and morality as parallel methods of social control for bringing about the kind and degree of cooperation that a society needs in order to survive and flourish (p. 1694).

Posner suggested a type of moral relativism which is an adaptationist conception of morality judged by its contribution to the survival, or other goals, of a society. Posner, however, opposed an originalist interpretation of the law. He also recognized that some

cases can be decided on issues unrelated to morality and the other cases are more appropriately decided by legislative action. He recommended that judges should try to understand the effects of their decisions and he thus recommended pragmatism to create the “best” results for society. Judge Posner (2014) has also written about and promoted an economic analysis of law in Economic Analysis of Law (9th ed.) and in The Economics of Justice (1981).

Any student in philosophy can find fault with any particular singular moral theory. It is sophomoric, however, to discard a moral perspective because it doesn’t apply to all cases without exception due to competing perspectives. Human nature is multidimensional and because a particular perspective doesn’t explain everything doesn’t mean that it is not part of the whole. Posner’s suggestion of an “immoral” or “amoral” position is thus mostly provocative and his endorsement of pragmatism is more inclusive in his economic theory of law.

Legal positivism is a profound change from the opinions of the Founders of United States constitutional democracy. Because it fails to consider moral criteria, legal positivism has been described as “sterile” and “useless” (Hart, 2012, p. 242; Law Page, “Legal Positivism”).