Natural Law Theory, Legal Positivism, and the Normativity of Law

Abstract

This essay examines two dominant traditions in legal philosophy, the natural law theory and legal positivism, in terms of how they account for the normativity of law. I argue that, although these two traditions generally take the question of the normativity of law seriously and try to account for it, they are not successful in doing so. This failure in the prevailing literature on the philosophy of law, I suggest, nevertheless has an implicit reconstructive impact: the insights into the failure of natural law theory and legal positivism imply an alternative philosophical framework that may provide a positive answer to the question of the normativity of law.

This essay is part of a two-year research project titled “A Kantian Approach to Current Tensions between Modern Law and Religious Commitments”, funded by a Marie Curie research grant of the European Commission. I am indebted to Dr Sorin Baiasu, the scientist in charge in the foregoing project, for his stimulating comments on the paper from which this essay originates. I would like to thank the School of Politics, International Relations, and Philosophy (SPIRE) at Keele University for being a wonderful host during my research process, and the Department of Political Science and Public Administration at Kocaeli University for permitting me to be away for a long period.

Notes

1. Christine M. Korsgaard, The Sources of Normativity (Cambridge: Cambridge University Press, 2011), 8.

2. Natural law theory and legal positivism are, of course, not the only available approaches. Among others, there are the different versions of legal realism (American, Scandinavian). See, respectively, Brian Leiter, “American Legal Realism,” in The Blackwell Guide to Philosophy of Law and Legal Theory, ed. M. P. Golding and W. A. Edmundson (Oxford: Blackwell, 2005), 50–66; and Geoffrey MacCormack, “Scandinavian Realism,” Juridical Review 11 (1970): 33–55. This approach is irrelevant to my argument as it seeks to explain legal practices in physicalist terms of causalities or probabilities.

3. John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980).

4. For a glimpse of current conflicts within the natural law tradition, see Robert P. George, “Natural Law and Human Nature,” in Natural Law Theory: Contemporary Essays, ed. R. P. George (Oxford: Clarendon Press, 1992), 31–41.

5. Nevertheless, my account may still seem controversial, since it will be identifying the natural law tradition with the rationalist-intuitionist view, thus precluding theological-voluntarism (the divine command theory of normativity). As historians of thought have suggested, theological-voluntarism is perhaps the sole basis of the normativity of law in the natural law theories proposed by Francisco Suárez and Samuel von Pufendorf. See Knud Haakonssen, Natural Law and Moral Philosophy: From Grotius to the Scottish Enlightenment (Cambridge: Cambridge University Press, 1996). Although this voluntarism acted as a stimulus for legal positivism, I will refrain from considering whether these versions represent or deviate from natural law theory. In religiously pluralist societies, natural law theories tend to favour rationalist-intuitionist accounts rather than theological-voluntarism. See, for instance, Robert P. George, “Natural Law,” Harvard Journal of Law & Public Policy 31 (2008):171–96.

6. I do not see the distinction between thick and thin concepts as Bernard Williams does in Ethics and the Limits of Philosophy (London: Routledge, 1985). I recast this distinction by connecting it to Kant’s distinctions in The Metaphysics of Morals, trans. and ed. M. Gregor (New York: Cambridge University Press, 1996) between “duties of right” and “duties of virtue” and between “perfect duties” and “imperfect duties.” I see thick moral conceptions as substantial in shaping private and communal lives. However, there are thin moral concepts (e.g., justice) that can also be action-guiding in that they play a role in regulating public and legal life in which individuals interact not as associates sharing a specific thick conception of life, but simply as persons. The implication of this distinction is that while a good range of flexibility, difference and divergence is plausible on the level of thick conceptions concerning private and associative relations, thin concepts concerning public and legal relations will be strictly universal.

7. In their search for foundational normativity for positive law, the modern natural rights theories, which arose in the seventeenth century and became influential in the eighteenth century, were also legal moralistic and thus resembled ancient natural law, which explains why many have considered them a new version of natural law. See, for example, Brian H. Bix, “Natural Law Theory,” in A Companion to Philosophy of Law and Legal Theory, ed. D. Patterson (Oxford: Blackwell, 2010), 211–27. However, this does not seem plausible, since the modern position radically diverges from the ancient one in its emphasis on subjective freedom and its justification of legal-political normativity by reference to an intersubjective (consensual) ground. Leo Strauss’s Natural Right and History (Chicago, IL: The University of Chicago Press, 1965) remains the essential work on the radical diversity between these two positions, despite its controversial stance on the modern natural rights position.

8. Apart from drawing on Finnis’s Natural Law and Natural Rights, my account is compatible with, and inspired by, John Wild, Plato and His Modern Enemies (Chicago, IL: The University of Chicago Press, 1953); Leo Strauss, Natural Right and History (Chicago, IL: The University of Chicago Press, 1965); Heinrich A. Rommen, Natural Law: A Study in Law and Social History and Philosophy, trans. T. Hanley (Indianapolis, IN: Liberty Fund, 1998); and Howard P. Kainz, Natural Law: A Reevaluation (Chicago, IL: Open Court, 2004).

9. John Finnis, “Natural Law: The Classical Tradition,” in The Oxford Handbook of Jurisprudence and Philosophy of Law, ed. J. Coleman and S. Shapiro (Oxford: Oxford University Press, 2002), 1.

10. Finnis, Natural Law and Natural Rights, 81.

11. Finnis, “Natural Law: The Classical Tradition,” 37.

12. Finnis, “Natural Law: The Classical Tradition,” 38.

13. Bix, “Natural Law Theory,” 217.

14. Michael Smith, “Realism,” in A Companion to Ethics, ed. P. Singer (Oxford: Blackwell, 2012), 402.

15. Korsgaard, The Sources of Normativity, 33.

16. Finnis, Natural Law and Natural Rights, 33–34.

17. Korsgaard, The Sources of Normativity, 28–47, 40, 41. Korsgaard argues that this is a strategy we find in some contemporary realists like Thomas Nagel. It should be clear that Finnis follows a similar strategy in appealing to the self-evident basic goods and nothing else.

18. For a moral-realist response to Korsgaard’s The Sources of Normativity, see William J. FitzPatrick, “The Practical Turn in Ethical Theory: Korsgaard’s Constructivism, Realism, and the Nature of Normativity,” Ethics 115 (2005): 651–91. For a moral-realist criticism of the constitutivist account, see David Enoch, “Agency, Shmagency: Why Normativity Won’t Come from What Is Constitutive of Action,” The Philosophical Review 115 (2006): 169–98.

19. Finnis, “Natural Law: The Classical Tradition,” 19.

20. For Finnis’s Aristotelian theory of four orders, see Finnis, Natural Law and Natural Rights, 136–39, and “Natural Law and Legal Reasoning,” in Natural Law Theory: Contemporary Essays, ed. R. P. George (Oxford: Clarendon Press, 1992), 139–40.

21. Finnis, “Natural Law and Legal Reasoning,” 141.

22. Robert P. George, “Natural Law,” Harvard Journal of Law and Public Policy 31 (2008): 190.

23. Indeed, Finnis’s attempt to reconcile the natural law position with the modern liberal principle of human rights has been a rightful caveat against Leo Strauss’s exposition in Natural Right and History of the fundamental contrast between the two.

24. In arguing that the natural law position cannot account for the distinctive normativity of law, I do not mean that it cannot recognise the concept of legal validity as a quality of legal norms separable from their moral goodness and rightness. As Finnis argues, the natural law position can recognise this “analytic” conception of legal validity on the grounds that it has a good moral purpose (Natural Law and Natural Rights, 25–29).

25. Interestingly, Plato, the natural law philosopher, seems to have realized this when he sketched out the Sophist position on law in the example of Thrasymachus. See, Plato, Republic, trans. R. Waterfield (Oxford: Oxford University Press, 1993), 338c–344d.

26. Thrasymachus argues that “the just” is nothing more than “the legal” in a particular political community and thus the rules of justice are not natural but artificial constructs (Republic, 338c–344d). One may say that Thrasymascus is closer to legal realism than legal positivism, as he sees law merely in terms of power relations and does away with the question of normativity. However, a similar criticism has been directed at Austin’s command theory of law, even by other legal positivists. Thus Thrasymascus may be seen as the ancient precursor of both legal positivism and legal realism.

27. I do not think Hobbes was a legal positivist in the precise sense used here, although, as many have argued, he was pivotal to its development. See Brian H. Bix, “Legal Positivism,” in The Blackwell Guide to Philosophy of Law and Legal Theory, ed. M. P. Golding and W. A. Edmundson (Oxford: Blackwell Publishing, 2005), 29; and Otfried Höffe, Political Justice: Foundations for a Critical Philosophy of Law and the State, trans. J. C. Cohen (Cambridge: Polity Press), 65, 80–86.

28. Jules L. Coleman and Brian Leiter, “Legal Positivism,” in A Companion to Philosophy of Law and Legal Theory, ed. D. Patterson (Oxford: Blackwell Publishing, 2010), 228.

29. Coleman and Leiter, “Legal Positivism,” 230. We may ask whether the inclusive interpretation may still be seen as a version of legal positivism and thus reconcilable with the separability thesis. The answer given is as follows: the fact that a legislative authority decides to identify a set of ethical values as the condition of legal validity for a particular system of positive law does not contradict the positivist argument that law and morals are conceptually separate. That is, what is conceptually separated, law and morality, might contingently be associated in particular situations. From the standpoint of legal theorists, the ground of this association has nothing to do with the righteousness of the ethical values in question, but rather with the fact that there happens to be a convention that recognises them as conditions of legal validity. This implies that the set of values is both conceptually indefinite and that other normative criteria (cultural or religious) can be used as conditions of legal validity.

30. Coleman and Leiter, “Legal Positivism,” 230.

31. The view that law is a normative order is common to all versions of legal positivism. It could be said that the attempt to define the normativity of law is precisely what distinguishes legal positivism from the various forms of legal realism.

32. Kafka’s Trial may be read as an account of the utter bizarreness of the legal system when the question of the normativity of law is no longer raised.

33. Hans Kelsen, The Pure Theory of Law, trans. M. Knight (Berkeley, CA: University of California Press, 1970), 44–48; hereafter page references are cited in the text.

34. H. L. A. Hart, “Positivism and the Separation of Law and Morals,” in The Philosophy of Law, ed. R. M. Dworkin (Oxford: Oxford University Press, 1977), 19; and The Concept of Law (Oxford: Clarendon Press, 1994), 21–25; hereafter page references to these works are cited in the text.

35. Thomas Hobbes, Leviathan, ed. J. C. A. Gaskin (Oxford: Oxford University Press, 2008), 237.

36. Hobbes’s answer can be put as follows: men have an obligation to a superior power because their obedience to it is the soundest way for their self-preservation given the fundamental facts of human nature. Yet legal positivists do not explicitly incorporate the italicised part of his argument into their analysis of the concept of law. For them Hobbes might be better understood as a political-moral theorist advocating legal positivism, rather than as a legal positivist in the strict sense.

37. In Political Justice, Höffe argues that the “naive legal positivism,” which consists in the defence of the command theory of law, presents a “sociological reductionism” precisely because its distinction between law and naked force is founded upon “pre- and extra-legal social facts” (87).

38. Hans Kelsen, General Theory of Law and State, ed. A. Wedberg (Cambridge, MA: Harvard University Press, 1949), 113.

39. Höffe, Political Justice, 99–102.

40. Kelsen, General Theory of Law and State, 21.

41. Kant, Metaphysics of Morals, 25.

42. Höffe, Political Justice, 102–5.

43. As Coleman and Leiter suggest in “Legal Positivism,” the fact that people usually behave in a certain way in a certain situation explains why others to do the same: for example, that people in the UK drive on the left side of the road gives you a prudential reason to do same, or the way people behave in particular situations when they are unsure what the right thing to do is, gives you a morally instrumental reason to do same (234). These considerations, however, are relevant to specific situations and cannot be considered as a justification of ethical conventionalism without further argumentation. For it is easily conceivable that individuals might have prudential or morally relevant reasons to act against established conventions in some other situations.

44. Christine M. Korsgaard, “Self-Constitution in the Ethics of Plato and Kant,” The Journal of Ethics 3 (1999): 14.

45. I am grateful to the anonymous referee who drew my attention to the fact that my argument against legal positivism came close to Gustav Radbruch’s formula, which reads: “Where there is not even an attempt at justice, where equality, the core of justice, is deliberately betrayed in the issuance of positive law, then the statute is not merely ‘flawed law’, it lacks completely the very nature of law. For law, including positive law, cannot be otherwise defined than as a system and an institution whose very meaning is to serve justice.” Gustav Radbruch, “Statutory Lawlessness and Supra-Statutory Law,” Oxford Journal of Legal Studies 26 (2006): 7. Radbruch’s formula expresses the insight that the rationale of law stems from a specific practical purpose, in defiance of which there would be nothing that can be called law. However, it is not an attempt to restore the natural law position or plain legal moralism, since it suggests that the inherently practical-moral purpose of legality is a thin concept not to be confused with thick and broad notions of ethical commitments. Although Radbruch’s formula is helpful in establishing the proper task of legal philosophy, it requires further elaboration before it can be seen as a resolution of the problem, for the “equality” Radbruch defines as the constitutive purpose of legality remains ambiguous, as he does not spell out the philosophical derivation of equality from the form of legality. Some of Kant’s followers, including Julius Ebbinghaus, Ernest Weinrib, and Arthur Ripstein, who considered “persons with rights” as the constitutive-normative ground of the form of legality, may be helpful in moving from the problem of normativity to it solution. See Julius Ebbinghaus, “The Law of Humanity and the Limits of State Power,” The Philosophical Quarterly 3 (1953): 14–22; Ernest Weinrib, “Law as an Idea of Reason,” in Essays on Kant’s Political Philosophy, ed. H. Williams (Cardiff: University of Wales Press, 1992), 15–49; and Arthur Ripstein, Force and Freedom: Kant’s Legal and Political Philosophy (Cambridge, MA: Harvard University Press, 2009).

46. Korsgaard, “Self-Constitution in the Ethics of Plato and Kant,” 29.

47. Hart, The Concept of Law, 207–12, and “Positivism and the Separation of Law and Morals,” 37.

48. Hart, “Positivism and the Separation of Law and Morals,” 36.

Additional information

Funding

European Commission [Grant Number MC-IEF 329268].