The Legal Theory of Ethical Positivism

Tom D. Campbell

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781351886871
• Edition: 1
• Topic: Philosophy
• Subtopic: Ethics & Moral Philosophy

The Legal Theory of Ethical Positivism re-establishes some of the dogmas of classical legal positivism regarding the separation of legizlation and adjudication and the feasibility of institutionalizing the morally neutral application of rules as an ideal capable of significant realization. This is supplemented by an analysis of the formal similarities of the morally and legally adjudicative points of view which offers the prospects of attributing a degree of moral authority to positivistic rule application in particular cases. These theories are worked through in their application to specific problem areas, particularly freedom of communication.

1 Introducing Ethical Positivism

Introduction

In legal theory, Legal Positivism is generally taken to be the view that the concept of law can be elucidated without reference to morality, and that it is the duty of judges to determine the content of and apply the law without recourse to moral judgments. To many people, lawyers and laypersons alike, this seems outrageous. If the law is not deeply imbued with our moral convictions, how can it command our respect? If law can be law without being moral then our legal obligations can be no more than coercion. Nor does it seem that the actual operations of law are intelligible unless they are brought into some sort of supportive relationship to at least part of the morality of the community in question.¹ Legal Positivism must, therefore, be mistaken in theory and perhaps immoral in practice.²

It is the thesis of this book that the belief in the amoralism (and certainly the immoralism) of Legal Positivism is profoundly mistaken, For while it is correct to say that Positivism insists on the practical importance of the distinction between morality and law and equally correct to say that Positivism holds that judges should not themselves normally make moral judgments in the course of their judicial activities, these positions are commended on the basis of foundational moral views about what law and politics should be all about. My purpose is to bring to the fore these ethical aspects of Legal Positivism, to defend them against philosophical and political objections and to illustrate some of their implications in relation to human rights and, more particularly, freedom of expression.³

'Ethical Positivism' is the label chosen to identify the sort of theory that centres on the ethical functions and prerequisities of positivist models of law. The legal theory of Ethical Positivism (hereafter LEP) is not an analytical view about the semantics of 'law' or the deep meaning of legal discourse, nor is it a descriptive/explanatory theory about the best way to understand law and its social functions. Rather, LEP is a moral theory about the exercise of political power which it views as the activity of seeking to control and coordinate in a morally defensible manner the conduct of large numbers of people. The particular focus of LEP within political philosophy is the proper modus operandi of the state as the main institution through which political power is exercised in the modern world. The framework for its analysis is a discussion of the acceptable form of the organised use of collective power over a whole society. LEP is thus essentially a critical (justificatory/condemnatory) theory of the state and contemporary political process.

In brief and highly simplified summary, LEP presents an aspirational model of law according to which it is a presumptive condition of the legitimacy of governments that they function through the medium of specific rules capable of being identified and applied by citizens and officials without recourse to contentious personal or group political presuppositions, beliefs and commitments. LEP depends both on the analytical thesis that law can be conceptually, argumentatively and operationally separated from morality and on the sociological thesis that actual legal systems can approximate to a situation where their laws are administered in a rule-deferential manner. However, the organising and motivating force of LEP is a substantive political view about the moral significance of the positivist vision of what a good legal system looks like and how it contributes to a just, effective and democratic polity.

LEP is a broad approach within legal theory. It covers a variety of ways of unpacking the political ideal that government should be conducted through the creation and (separate) application of specific and objectively operable local rules. LEP emphasises that it should be the task of courts both to express and to limit the legitimated political will of a community via the impartial implementation of its rule-formulated decisions. Courts ought to assist in maximising the effectiveness of constitutionally legitimate government activity but must do so in a way which facilitates control of those failures and abuses which it is part of the function of the positivist model to identify and check. LEP is, therefore, a highly political theory of law, albeit one which concentrates on the legal contribution to political objectives which flow from the form and process of law, rather than its specific contents.

The Ethics of Positivism

The label 'Ethical Positivism' signals that LEP goes beyond what is sometimes called Institutional or Normative Positivism, the view that law consists of a system of rules, where rules are understood in cognitive and institutional terms rather than as reducible to near brute facts, such as sanctions and commands.⁴ The Ethical Positivist endorses the basic ontology of rules which characterises Normative Positivism but argues for this view of law on prescriptive rather than philosophical grounds.

In the terminology of contemporary theory, LEP subscribes to the 'separability thesis', namely the view that law and morality can be separated (in that, for instance, legal decisions need not draw on moral premisses) but rejects the 'separation thesis', if this is construed as the claim that law and morals actually are separate, for LEP acknowledges that this is not generally the case.⁵ Rather, LEP represents what might be called the 'prescriptive separation thesis' according to which the identification and application of law ought to be kept as separate as possible from the moral judgments which go into the making of law. This is to adopt as a prescription, rather than an analysis, the contention of Joseph Raz that the tests for determining the existence and content of a law should be value-free.⁶ It goes further than H.L.A. Hart, whose rule of recognition, which sets out the criteria for identifying first order legal rules, can include moral criteria, a position which has been described by W.J.Waluchow as 'inclusive legal positivism'⁷ and by Hart himself as 'soft positivism'.⁸ However, there is no actual disagreement here as Hart's position is a descriptive one whereas LEP is a prescriptive theory which does not deny that actual legal systems routinely permit the moral judgments of judges a major role in legal process.

The term 'ethical' is preferred to 'moral' because it better connotes a system of second order moral reasons which have bearing on the design of institutionalised practices and the ways in which those entrusted with institutional roles conduct themselves. Somewhat arbitrarily I take the term 'ethical' to point us towards the appraisal of complex institutional patterns and roles, which have to be seen largely in terms of their instrumentality for a range of morally significant human objectives, in contrast to the 'morality' of more direct one to one social interactions. The label 'Ethical Positivism' indicates that law is to be valued as an institutionalised way of doing things which serves important societal purposes.

Further, it is part of the theory that the effective accomplishment of these purposes calls for ethical conduct on the part of participants in their various roles, as judge, as lawyer, as policeman and as citizen, a matter of role morality as distinct from personal morality.⁹ This ethical conduct will standardly involve role occupants presumptively subjugating their own moral beliefs about what would be substantively good law in favour of their moral commitment to obeying formally 'good' law. This requires participating in and fostering a community of understanding, in the legal profession and beyond, which embodies certain types of relatively 'objective' standard as to how legal disputes are to be settled and what counts as a sound legal argument. The main thrust of this ethic is a subordination of personal views to the morality of the role which recognises the moral priority of the overall objectives of the system and the duties of the individual as performing a part within that system.¹⁰

A sub-theme is that, when the pure positivist model is inapplicable or impracticable, or where the legal system in question falls short of the positivist ideal, courts can properly be viewed as having a certain moral authority which derives from their institutionalised impartiality with respect to the parties in dispute and, to a lesser extent, the interest groups whose political differences are manifest in litigation. The impartiality of courts is very limited in relation to value disputes, but to the extent that they are not parties to the conflicts that they are required to resolve courts have a degree of moral legitimacy which can make them appropriate sources of minor changes in the substance of law, provided that these law-making activities are subject to legislative review with respect to their precedential force.¹¹

That the conjunction of 'ethical' with 'positivism' is a somewhat jarring combination is a tribute to the extent to which Natural Law theory has come to be identified with the moral approach to law.¹² Indeed, it is a considerable propaganda blessing for Natural Law theory that it is easy to pillory Legal Positivism as unfeeling and insensitive on account of its efforts to distance law from morality. Assumptions of the amoralism, even the immorality, of Legal Positivism persist despite the evident value commitments of Legal Positivists from Thomas Hobbes to Jeremy Bentham and John Austin to H.L.A. Hart, Neil MacCormick and Joseph Raz.¹³ In this context, the apparent oxymoron, 'Ethical Positivism', has the heuristic merit of expressing in an arresting manner the insight that the justifying grounds of Legal Positivism can be viewed as primarily ethical, rather than analytical, descriptive or explanatory.

In so far as classic Legal Positivism has moral associations these are, of course, generally of a utilitarian variety. Legal Positivists of the English-speaking world trace their ancestry to Thomas Hobbes, who embraced the absolutist state as a way to maximise the fulfilment of desire, particularly pleasure, and minimise that to which people are averse, particularly death.¹⁴ The greatest Legal Positivist of them all, Jeremy Bentham, and his follower John Austin, were part of the reformist movement, Philosophical Radicalism, which taught that law and its sanctions have a particularly important role in directing the selfish actions of individuals towards outcomes which serve the greatest happiness of the greatest number.¹⁵

While such utilitarian explications of the term 'ethical' in 'Ethical Positivism' draw attention to the hoped for beneficial consequences of positive law in the sort of institutional terms that characterise LEP, it is as well at the outset to emphasise that the theory is not tightly bound to such a limited theory as Benthamite utilitarianism. As we will see, the purposes which law may serve are by no means confined to the minimisation of pain (harm) and are rarely extended as far as the maximisation of human happiness (benefit). Other, non-hedonistic, objectives may be involved, such as distributive justice and individual autonomy (whether or not these bring happiness or freedom from harm). Legal process may also be valued simply as fair process, independent of its outcomes. LEP is morally eclectic and politically tolerant. One attraction of LEP as an aspirational model of law is that it can be taken to serve the values of a wide range of particular philosophies, individualistic, communitarian, hedonistic or pluralist.

Certainly, there is an historical association between Ethical Positivism and individualistic or libertarian ideologies in which the self-sufficient individual is all-important and the activities of states are to be kept to the law-and-order minimum. However, Legal Positivism is not tied to the ideology of its origins. Law as a system of rules can serve collective as well as individual ends, and the individuals involved may be constituted in large measure by their social roles, group affiliations and societál environment without undermining the assumptions of LEP. Indeed, respecting the purposes of sovereigns as the source of legal authority can have a distinctly holistic ring, particularly where the sovereign is conceived in democratic terms.¹⁶

In general, the sovereign power aspect of Legal Positivism carries few of the connotations of those liberal forms of the 'rule of law' which present law as a morally neutral framework within which autonomously constituted individuals are free to pursue their private objectives under the umbrella of a non-partisan state. An element of this model will exist and may be welcome to the extent that law embodies rules of mutual convenience which aid social cooperation, but, in most areas of morally justified legal restraint and permissibility, law takes some sort of stand on the allowable range of individual and group activities. What sort of stand should be taken is, for LEP, an open question which is normally best left for independent political determination outside the legal system.

A Positivism of Rules

It is central to LEP that a system of law ought to be a system of rules.¹⁷ Further, the rules in question must be 'real' rules, that is rules which have, in Raz's term, 'exclusionary force' in that they function in decision making partly by excluding considerations which are not indicated by the rule in question, even if such considerations would otherwise have been relevant.18 To adopt the metaphor popularised by Dworkin in relation to rights, for LEP, rules are trumps. No mere 'rules-of-thumb' or general guidelines to aid decision makers will suffice for the decisive role of rules within the state.¹⁹ In addition, if they are to fulfil this role, rules must have considerable specificity, clarity and mutual consistency.²⁰ While rules in a positivist system must be 'general' in the sense of universal as opposed to particular (referring to classes of person and events rather than individual persons and instances), they need not be general in the sense of applying to all persons and must not be general in the sense of being vague or unspecific. Positivistic rules, as we shall see, are as specific as is necessary to capture the perhaps controversial political choices relevant to the conduct in question and must be at a level of abstraction which makes them effective instruments for their social purposes and, at the same time, enables citizens to assess the fairness of the distinctions drawn between types of person an...

Table of contents

• Cover
• Half Title
• Dedication
• Title
• Copyright
• Contents
• Series Preface
• Preface and Acknowledgements
• 1 Introducing Ethical Positivism
• 2 The Tragic Paradox of Politics
• 3 The Roles of Rules
• 4 Positivist Ideals
• 5 The Ethics of Positivism
• 6 Ethical Interpretations
• 7 Humane Rights and Freedom of Expression
• 8 The Political Choices Within Freedom of Speech
• 9 Positivist Defamation Law
• 10 Conclusion: A Unifying Prescription
• Bibliography
• Index