Jusletter IT

Legal positivism may be defined by the set of theses that are necessary and sufficient to take an author as legal positivist. Let us consider four theses that have been proposed for that by Hart¹ and Ross² . I am choosing Hart and Ross because they focussed on the question of the definition of legal positivism thereby being the last of the greatest legal positivists, following Bentham, Austin and Kelsen, who should be regarded as the antecedent classics of this line of thought. They represent also within legal positivism the two major philosophical schools that nurtured most contemporary legal positivists: neopositivism as to Ross, where for example Bobbio³ and Bulygin⁴ are to be included, and the late Wittgensteinian analytical philosophy as to Hart, where his disciples Raz⁵ , Coleman⁶ and Gardner⁷ are to be included. Theses should not be defining, however, for the simple fact that they generally admitted, but because they are important and indispensable for the system of legal positivism. A thesis that implies the exclusion of any of the above mentioned classics will be deemed unacceptable.

We have four theses to examine:

• The thesis of the conceptual separation of law and morals. Law neither depends nor is determined by morals. There is no implication or conceptual necessity from law to morals or from morals to law, the law can be unjust or immoral.
  
  
• The thesis of the social sources of law. The validity and the content of law depend solely from social facts. The content of the law is determined by the content of some social facts, the social sources of law.
  
  
• The thesis of judicial discretion. Whenever to fill a gap it is possible to conceive of different rules compatible with the legal criteria to fill gaps of the law, the judge has discretion in choosing the rule to apply.
  
  
• The thesis of the inexistence of natural law. There is no other law but positive law. There is no natural law, because there is no objective morality.

Let me discuss first the two last ones to discard them.

Hart thinks that in any legal system there are legally unregulated cases or gaps in the law. To fill them the law provides some criteria, such as analogy and the general principles of law. From the application of such criteria it can result that only one norm is applicable to the case, or that more than one norm is compatible with the accepted criteria. If the just has a duty to decide such a case and is not allowed to defer the decision to a legislative body, he creates new law according to his discretion within the limits set by law. Against this thesis Dworkin holds that also in such hard cases there is only one right answer, although admittedly only a Hercules-judge can be certain of it. Apparently the discretion thesis derives from the social sources thesis, since the norm applied to the case was never posited or expressed by any organ of the legal system. From the later fact however derives only that the norm is new, not that the judge had the power to apply another norm at his discretion. The existence of only one right answer is compatible with the primacy of the social sources – the thesis that they only determine the content of the law – , even if the right answer is only revealed by the posterior recognition and the fact that it was not reversed by later jurisprudence. It is also confirmed by the fact that the parties and the judge behave in the process under the presupposition of one right answer. To subscribe to the discretion thesis is not therefore a necessary condition to be a legal positivist. It would make it more difficult to defend legal positivism. And a theory is only defeated if it is defeated in its strongest form.

Ross thought that one should depart from the way the term «positivism» is defined in general philosophy to define afterwards «legal positivism». It would be an approach to the problems of legal theory based on an empiricist and anti-metaphysical philosophy. This would imply for Ross that ethical and legal principles and conclusions are not the expression of truths that can be discovered or established objectively by a cognitive procedure. There is no objectively valid natural law for the same reason why there is no objective morality, because there is no truth in law or in morals. This conception of legal positivism that applies to Ross’s and to Kelsen’s theories is however neither applicable to Bentham and to Austin, for whom utilitarianism is ethics with objective validity, nor to Hart, who did not share neo-empiricism and practiced a political and moral philosophy with material content. Ross would say that they defend a kind of natural law. These authors however deny the existence of natural for other reasons, since they are positivist in general philosophy. Against Rawls, non-positivists may too espouse the theses of legal positivism and legal positivism and natural law theories do not exhaust all possible positions in legal philosophy. Some critics of legal positivism as Dworkin do abhor also natural law. That is enough to refute the thesis of Ross that the negation of objectivity in morals is essential to legal positivism.

The thesis of the conceptual separation of law and morals has been formulated by Bentham and by Austin as a thesis about the criteria to determine what the lawis : the conformity to morals is no such criterion. One thing is to ask what the law is, another to ask what the law ought to be, the answer to the first question does not depend on the answer given to the second one. The law can be as it should be, if it conformed to morals, or not. There is morally good law and morally bad law, bad or unjust law is nevertheless law. Both Bentham and Austin would say that the existence of a law is one thing; its merit or demerit is another.

Hart prefers to say that there are contingent connexions, but no necessary connection between law and morals, a legal rule can have content identical to a moral rule, but that is a contingent coincidence and such identity never is a necessary condition of its validity.

Ross agrees with that, but stresses that validity here does not mean obligatory force in the sense of being made obligatory by morals or by natural law, a view certainly supported by Hart. According to Ross validity here can only mean the existence of law as an empirical fact, such as the probability of the existence of judicial decisions with certain content. In so far he distances himself from Hart and Kelsen.

In spite of such disagreement about the essence of law all these classics of legal positivism support the thesis that content identity with morals is no necessary condition for a rule to be part of law, and agree that such thesis is ultimately grounded in the social sources thesis. For them the only necessary condition for a rule to be part of law is the existence of certain social facts – although they disagree about the precise identification of these – and content identity with morals is not such condition. Therefore, even if conformity with morals may be a necessary condition for a certain rule to be a legal rule, as Hart admits, such a requisite does not apply to every legal rule. It is not a conceptual connection. When it applies, it does so because of social facts – for Hart those facts are the decisions of the judges that recognize such a condition –, that in respect of such a rule require conformity with morals.

I am finalizing with Kelsen, because Kelsen says the same thing in a more complicated manner. For Kelsen the validity of a legal norm depends initially of the norm permitting its creation, but afterwards to remain valid the legal norm depends also of its own efficacy and ultimately of the validity of the basic norm, that again is conditioned by the efficacy of all the norms of the system. This efficacy is measured by the existence of the coercive acts applying sanctions.

The thesis of the conceptual separation of law and morals is therefore essential to legal positivism, although dispensable in its definition since it is implied by the social sources thesis.

Coleman pretends to embrace legal positivism and to reject the conceptual separability of law and morality. For that he distinguishes between a narrow and a broader formulation of the separability thesis. The narrowest formulation is Hart’s. Coleman says that it is beyond reproach, since to be true is enough that there is a logically possible world in which morality is not a condition of legality. «If the 'necessity' expressed in Hart's formulation is conceptual – says Coleman –, then the separability thesis stands provided expressions like 'morally bad, wrong or unacceptable law' are conceptually coherent, and to the naked ear they clearly are»⁸ . But then the thesis appears compatible with natural law theory. I think that goes further than Coleman supposes. The thesis says that there is no necessary connection and therefore, not only that the expression «morally bad law» is coherent, what natural law theorists easily accept, but that the expression «morally wholly unbearable law» is coherent, what they almost certainly deny.

The broader formulation says that there is no necessary connection between ruling by law (Coleman speaks ofgovernance by law as a «a distinctive and systematic mode of regulating human affairs, the nature and contours of which are the subject matter of jurisprudence») and morality. With such a meaning, he says, the separability thesis should be rejected, because «the fact that the law directs us to act in such and such way makes it the case that the content of the law is correctly describable as a moral requirement (or moral authorization as the case may be)». According to Coleman, if I understand him well, there is «a moral semantics of legal content», by which virtue when the law imposes a legal duty ( or gives a legal authorization), it obliges or authorizes morally in so far it implies that there is a kind of moral reason to act in such a way. «From the law's point of view – he says –, law warrants redescription of legal content as moral directives or authorizations. This is the law's point of view, but the law can be mistaken». If the law is mistaken, I would say, it is because there are contrary moral reasons that prevail. One thing is to give necessarily one moral reason to act, another is to pretend to give the moral reason to act as the result of the correct weighing of all concurrent reasons for acting. In the first case there is no implication from law to morals, in the second it is difficult not to admit that when the content of the law is morally unsustainable it can not give the moral reason to act in such a way. In this case it can not be correctly described as a moral formulation, it not coherent to call it law. Coleman would then reject legal positivism.

Let us now pass from the ways in which legal argument is related to ethical argument to the relations between legal argument and statements about facts. Legal positivism has been telling us that positive law exists, that propositions about positive law are true or false according to the facts, and that the true ones are the basis of a descriptive science of law. It is a main thesis of legal positivism that the law has social sources⁹ , in the sense that in order to say that a particular law exist, i.e., is valid, or that a legal system exists, i.e., is valid, all you need is to ascertain certain social facts. Shall we say now that legal positivism derives «ought» from «is», and so violates Hume’s law, which prohibits such a move? Let us see more closely how positivists deal with our problem. I shall concentrate on Bentham and Kelsen, who hold the most distinctive positions about the consequences of Hume's Law for legal theory.

Bentham was certainly eager to point out the facts that lie behind the law. These were to him the truth of the law. They allow us to reduce the sentences we find in the law and about the law to meaningful factual propositions, or to repudiate the irreducible sentences as meaningless. The relevant facts are the commands of the legislator, the decisions, i.e., the individual commands of judges, the sanctions of punishment and reward, the acts of obedience to the sovereign and the corresponding habit of the people. In theFragment on Government Bentham gives us two alternative analyses of legal «ought» sentences. He says one time that an action is a point of duty (or obligation) if it is the subject of a command of the legislator (or of a quasi-command of the common law), and another time that an action is a point of duty if is probably followed by punishment. A rational reconstruction of Bentham's thought has to accommodate these definitions with further developments: that namely there are laws backed by rewards and laws without political sanction, i.e., pain or pleasure at the hands of a political superior, such as the laws limiting the supreme powers within a state. However, if the probability of a specific sanction is not necessary to the existence of a legal obligation, a system of sanctions backed by force and reinforced by obedience is needed to explain the superiority of the sovereign implied in the notion of a command.¹⁰ It may be disputed if Bentham reduces after all the law to propositions about the will of the legislator or of the judge, as he was able to notice that «the use of a mandate is determined by the nature of the act or mode of conduct which is the object of it: and where can be no difference in the conduct of the subject it is no purpose to mark out any difference in the mind of the legislator».¹¹ Nevertheless, Bentham did not see the full significance of his own words, as he continued apparently attached to a theory of language which considered commands to be complex propositions of the type: «it is the will ofs (a superior person), thatx does A.» He expressively equates «to express something» and «to assert something about the mind of the speaker».¹² He remains therefore a psychologist and misses the point of Hume's law. However, his sharp distinction between what the law is and what the lawought to be is untouched: the facts on which positive law depends are clearly distinct from the prospective pleasure and pains which should allow him to calculate the contribution of the best possible law to general happiness. The argument does not rely upon a correct view of the nature of the relation between the law and the facts which determine its content.

Kelsen was the first legal positivist to retire all the consequences of Hume's law. That is why he does not use the is-ought distinction to separate law from social morality or from natural law. All three are normative systems, systems of «ought» sentences, which are only to be differentiated because they have a different source of validity, a different basic norm. The is-ought distinction marks in Kelsen the difference between such normative systems and causal laws and as a consequence, between the theory of law and both natural science and sociology of law. In his posthumous book on theGeneral Theory of Norms Kelsen, whose thought was originally not directly influenced by Hume, but certainly influenced by Kant, is happy to notice his full accordance with Hume's views. He says: «in respect to the relation between «is» and «ought» is Hume more consequent than Kant. For him there is no practical reason».¹³

Kelsen would not have been a positivist if he had not made the content of the law depend on facts. He does: «in being so established and in...the efficacy as a condition of validity lies the positive character of morals and of law.»¹⁴ These are the two matters of fact(«Seins-Tatsachen») , which are conditions of the validity of a norm. The efficacy consists in that the norm is in most cases followed and if not followed is in most cases applied, i.e., in most cases either one does what the law intends one to do or the sanction for non-compliance is applied. But Kelsen also says that the validity of each norm depends on the efficacy of all other norms which constitute the normative system.¹⁵ I take these conditions together to give an alternative formulation for Kelsen's basic norm: if the norms which have been established in a normative system are efficacious, then each norm of the system is valid. As every norm established in a certain legal system derives its validity from the first historical constitution, the basic norm also reads: If the norms originated by the first historical constitution are efficacious, the first historical constitution is valid. Would Kelsen have understood what we are now able to understand in Hume, he would have said, I think, that the basic norm is the meaning rule that explains the meaning of the «ought» sentences of an institutional fact like law or social morality. The institutional difference between law and social morality is explained by the different kinds of sanctions from which the efficacy also depends: coercive acts or social approval and disapproval.

This could be and should be Kelsen but it is not. Kelsen says that the meaning of «ought» (and of «is») cannot be explained further. So he is not able to see how theGrundnorm is his own definition of law. As a positivist, however, he cannot dispense with it. So he finishes in his last writings by saying that it is a feigned norm, a norm of an authority which does not exist, a self-contradiction: «the admission of a basic norm - e.g. the basic norm of a religious moral system: 'one ought to obey God's commandments' or the basic norm of a legal system: 'one ought to do as the first historical constitution says'- contradicts not only reality, because there is no such norm as the meaning of a real act of the will, but it is self-contradictory, because it empowers a highest moral or legal authority, and so originates in an authority which is above even the last one – however only feigned.»¹⁶

In this way, Kelsen not only finishes saying absurdities, but he forgets his own conditions of validity, forgetting positivism for a while. He cannot explain how the same sentence «A ought to marry B» (to use one of his examples) means different norms as the consequence of a promise, as a moral conclusion and as a legal obligation. Finally, he does not see the different relation to facts that holds for the law and other institutional facts on one hand, and the natural law or philosophical morals or ethics on the other hand.

Kelsen lacks an acceptable theory of meaning. So he could not conceive the real nature of theGrundnorm upon which he constructed his whole system. He has rightly seen that the validity of the norms of the legal system depends on theGrundnorm but was unable to identify the nature of the later. Such a nature is that of the constitutive rules of the legal system.

Constitutive rules put into being what they are about, whereas regulative rules guide conduct so that it puts into being what they are about. I am following a line of thought that was initiated by Wittgenstein, who showed that the rules constitute the game. The finest groundwork after Wittgenstein was done by John L. Austin and Paul Grice in their William James lectures in Harvard¹⁷ . Such rules do not allow a passing from anis to anought against Hume's law, that is, as a logical deduction of ought from is. The facts that constitute the law do not imply logically the law: they are just the condition for the validity of the law: since they exist, the norms exist, i.e., ought to be applied. But against Kelsen the validity depends on facts according to the recognition by the judges and other law applying agents of the constitutive rules of law, not according to the external efficacy of the rules (or only partially according to efficacy, because of a corresponding content of the recognition).

Also against Kelsen, the validity depends not only on facts, including efficacy, but also on correctness, that is, on the morality or rationality of the law. How much? That depends on recognition, which allows for the complex pattern of relations between legal and moral arguments that we have described earlier. The constitutive rules of law evolved from a system of recognised subjection – arguably always limited by some kind of «natural law» – to a system of recognised rationality. Therefore, the definition of law is also not fixed but evolving with the constitutive rules that define what is law. In a rule of law state the validity of a legal norm not only depends on such facts as the social facts of its creation according to the legal sources and also the facts of its efficacy – without which it is revoked by derogatory custom – and of the efficacy of the whole legal system, but depends on its content as well. It depends certainly on the content of the norms superior in hierarchy, since it has to conform to them. It depends however equally on the rationality of its content and therefore on its conformity with ethics or at least with a minimal ethical standard. It is so because of the constitutive rules that are recognized in the legal system. We have seen that the law incorporates ethical concepts as «human dignity» and «culpability», which have enormous consequences that are integrated in systems of legal doctrine such as the theory of human rights or the general part of criminal law. These systems aspire to a rational or ethical foundation and are developed or criticised through ethical reasoning. When positive law recognizes legal validity to criteria that are discovered by reason, recognition itself is suspended as a criterion for validity. In the so created sphere of rationality the rules and principles of ethical reason shall eventually contradict and then prevail over positive law. They are logically and normatively superior, so that even constitutional rules may become unconstitutional. Therefore, recognition self-effaces partially in the rule of law state. Since legal positivism is based on recognition, it has equally to suspend itself there. It does not contradict itself in a self-defeating manner. It is simply self-effacing in a coherent way.

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José de Sousa e Brito (born 1939) is a Justice (emeritus) of the Constitutional Court, Lisbon, Portugal, and also a Professor at Universidade Nova, Lisbon. He studied law and philosophy in Lisbon, Vienna (with Alfred Verdross and Günther Winkler), Freiburg in Breisgau (with Erik Wolf, Eugen Fink and Martin Heidegger), Heidelberg (with Hans-Georg Gadamer, Dieter Henrich and Ernst Tugendhat) and Oxford (with Herbert Hart). Formerly visiting Professor at the University of Munich, President of the European Consortium of Church and State Research, President of the Committee for the Reform of the Law of Religious Liberty of Portugal, and President of the International Society for Utilitarian Studies, he is since 1977 the Portuguese expert at the Committee of Experts for the Development of Human Rights of the Council of Europe and since 2008 the President of the Portuguese Society for Legal Theory, Philosophy of Law and Social Philosophy. He has published in English, German, French and Portuguese on ethics, philosophy of law, criminal law, constitutional law, and law on religion.

josesousabrito@yahoo.com

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