Legal Positivism and Faith in Law

1 LEGAL POSITIVISM AND FAITH IN LAW 1 Thom Brooks Durham University John Gardner, Law as a Leap of Faith, Oxford: Oxford UP, 2012, 314 pp, hb £39.99. Introduction Robert Nozick famously says that since John Rawls’s work on justice ‘political philosophers now must either work within Rawls’s theory or explain why not’.2 H. L. A. Hart’s The Concept of Law 3 has exercised a similarly dominating presence for legal philosophers. Much work has blossomed as a result and the latest significant contribution is Law as a Leap of Faith by John Gardner which seeks to reimagine Hart’s influential work on legal positivism in new ways with an exciting collection of fifteen essays, including some previously unpublished work. Gardner is rather modest about his project’s philosophical ambitions. In his preface, he writes that previous attempts to draft a general introduction for this collection were unsatisfactory and ultimately abandoned. This is ‘because there is no bigger picture. I don’t have a theory of law’.4 Instead, he provides us with ‘quite a lot of thoughts about law in general and I can only hope that they turn out to be consistent with each other’.5 Gardner claims that philosophy is not about ‘compiling as many little thoughts as possible into as few big thoughts as possible, but the art of wearing every thought down to its rightful little size and then keeping it in its rightful little place’.6 Law as a Leap of Faith is a collection of 1 Forthcoming in Modern Law Review. 2 Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974) 183. 3 H. L. A. Hart, The Concept of Law, 2 nd edition (Oxford: Clarendon, 1994). 4 John Gardner, Law as a Leap of Faith (Oxford: Oxford UP, 2012) v. 5 Ibid, v. 6 Ibid., v. 2 comments about the law rather than a complete theory about law where Gardner claims to be engaged in a project of ‘unbundling’ where the aim is to clarify our understanding of law through a re-evaluation of Hart’s legacy and how it might be improved further. Gardner’s modesty is misplaced. He advises his readers ‘you will struggle to find any conspicuously novel ideas about law in the book’.7 I disagree: this is not a mere assembly of interesting, but disconnected thoughts spread across idiosyncratic themes. Instead, this is an impressive body of work that gives expression to a powerful vision about the aims and limited ambitions of legal positivism. While Gardner does unbundle muddled arguments and help us reassess a more compelling view about Hart’s legacy, this is more than a critique of where others have gone wrong and it is best considered as essays that challenge some fundamental tenets about the commitments and limits of legal positivism as well as the relation of law and morality more broadly. I will address Gardner’s contributions in these areas focussing on the relevance of a belief in law, morality for positivists and a comment on the Fuller-Hart debate before concluding with some critical remarks about Garner’s understanding of morality and normativity. The Philosophers’ Belief The title essay, ‘Law as a Leap of Faith’, has been seen as both ‘the most interesting’ and ‘also the most obscure’ piece in the book.8 This is not without good reason. Gardner begins with a brief passage from Plato’s Euthyphro where Socrates addresses the problem of ‘whether the holy is beloved of the gods because it is holy, or holy because it is beloved of the gods’.9 Gardner translates this into Judeo-Christian terms as a puzzle about an all- powerful and all-knowing God: 7 Ibid., vi. 8 Kevin Toh, ‘Book Review’, Notre Dame Philosophical Reviews (29 April 2013) (url: http://ndpr.nd.edu/news/39497-law-as-a-leap-of-faith/). 9 Gardner Law n 3 above 1. 3 On the one hand, we are told that whatever this God commands is the right thing to do by virtue of God commanding it. This is an aspect of God’s omnipotence. On the other hand, we are reassured that whatever this God commands is commanded because it is the right thing to do. This is an aspect of God’s omniscience. But these propositions about God and His commands cannot be true at once. Either this God makes a constitutive difference to what we should do or He does not. So which is it to be? 10 For Gardner, the puzzle is this: either God’s commands, as His commands, make activities right that would be wrong otherwise or God’s commands merely indicate what is right already. If the former, then there may not be any rational justification for why activities are right independently of God’s commands. If the latter, then it is unclear what is added by the fact something is commanded by God because we might discern what is right independently of any such instruction. So either what is right because it is commanded and no more or because it right independently of whether it is commanded. The puzzle, for Gardner, is it cannot be both at the same time. Either God’s commands, as His commands, makes a constitutive difference or it does not. Our way out might be to say, in his words, that ‘reasoned argument is useless in the sight of God; only faith will do’.11 The problem with such a solution is that ‘faith cannot lend its justifications to the faithless’.12 This discussion is meant to provide an insight into longstanding debates between legal positivism and natural law about the relation between law and morality. Gardner argues: ‘In the tradition of legal positivism, law is binding because it is posited. In the natural law 10 Gardner Law n 3 above 1. 11 Gardner Law n 3 above 3. 12 Gardner Law n 3 above 7. 4 tradition, on the other hand, law is posited because it is binding. Surely it cannot be both, one must choose between positivism and natural law’.13 So how to choose? Do we require a leap of faith to recognise law’s commands as commands or not? Gardner turns to Hans Kelsen’s theory of law. Whereas Søren Kierkegaard argues we must make a leap of faith because of the limitations of rationality for theology, Gardner claims that Kelsen – the Kierkegaard of jurisprudence? – argues for a leap of faith about the nature of law. Gardner says: Therefore, just as a theist may dissolve the Socratic dilemma of theism by holding that God just is goodness personified, so a Kelsenian resolves the structurally identical dilemma of positivism and natural law by holding that law is rightness institutionalized. The question of whether legal rules are posited because right, or right because posited, thus ultimately evaporates. 14 For Kelsen, the ultimate source of validity for any legal system is its basic norm, or Grundnorm. 15 This basic norm is a ‘fusion, in the juristic consciousness, of authorization and rightness. The Grundnorm is, in this sense, the juristic God’.16 This is because it, like God, can make right, through its demands, what might be wrong otherwise. The importance of the Grundnorm is its attempt at reconciling legal positivism and natural law through an act of faith concerning our allegiance to it. There are many different kinds of reasons, including non-moral reasons, for supporting the Grundnorm not unlike the variety of reason that may persuade us to believe in God. 13 Gardner Law n 3 above 7. 14 Gardner Law n 3 above 9. 15 See Hans Kelsen, Introduction to the Problems of Legal Theory (Oxford: Clarendon, 1934) 55-64 and Joseph Raz, ‘Kelsen’s Theory of the Basic Norm’ in The Authority of Law: Essays on Law and Morality (Oxford: Clarendon: 1979) 122-45.. 16 Gardner Law n 3 above 10. 5 These arguments about the similarities between theistic and ‘legalistic belief’ are not meant to show they lack important differences. But there is an interesting, and perhaps arresting, thought arising from this somewhat strained analogy that Gardner attributes to Ronald Dworkin: ‘we cannot hypothesize the presuppositions of lawyers without endorsing them. So not only lawyers but also legal theorists can only talk about law while being committed to it’.17 Gardner disagrees and he denies that lawyers need be ‘true believers’.18 But why? Specifically, why do we not require a leap of faith in law? This title piece is fascinating and somewhat frustrating because we must look elsewhere to piece together a more complete picture about Gardner’s views concerning law and faith. In a later piece, Gardner explores the nature of law’s claims. ‘The law’ does not make claims on us per se. Instead, only law-applying officials make claims for law: ‘the claims of law are identical to certain claims of its officials’.19 Legal claims, such as a legal obligation or right, are claims about what law claims: they are second-order claims. 20 One implication is that errors about law’s claims are not errors of law, but rather errors attributable to the law-applying officials who express those claims. 21 The sphere of legal claims is not a realm of beliefs, but rather a world of everyday practices. The legal claims made by law-applying officials are also moral claims and we will consider how Gardner understands the relation of law with morality in the following sections below. Nonetheless, the moral claims often implicit in legal claims need not require any belief from officials. This is because they do not, or at least need not, speak for themselves. Gardner says: ‘Librarians advocate literacy but they may be TV-loving philistines. Recycling officers agitate to reduce waste but they may be gas-guzzling slobs. Judges make moral claims for law but they may be anarchist subversives who are trying to bring law down from 17 See Gardner Law n 3 above 18 and Ronald Dworkin, Law’s Empire (Oxford: Hart, 1986) 11-15. 18 Gardner Law n 3 above 18. 19 Gardner Law n 3 above 131. 20 Gardner Law n 3 above 133. 21 Gardner Law n 3 above 133. 6 the inside’.22 Our faith in law, if we have any, need not be a faith in its morality even though law’s claims have a moral character.23 ‘Morality has no officials and cannot make claims’, but law-applying officials making legal claims create moral claims concurrently. 24 There ‘can be immoral laws’ as valid law may lack moral merit.25 But the moral merits of law’s claims are expressed by the claims of officials and may not reflect their individual view about moral claims more generally. 26 So the legal claims are moral claims, but do not represent any comprehensively ‘thick’ conception about morality and these claims do not require moral merit to be legally valid. More importantly the law can create moral obligations that are legally recognized ‘whether or not it took the morally correct path in doing so’.27 Law and morality are linked as part of what Gardner calls ‘the inescapable morality thesis’.28 Interestingly, the link law and morality share does not require we assess law’s validity in terms of its merits without our discounting the central place of morality in our engagement with legal claims. Let us bring back Gardner’s earlier discussion of theistic commands. In his essay ‘Of the Difference between a Genius and an Apostle’, Kierkegaard argues that a parent or Christ possesses authority not because either can provide a reasonable justification for their commands we might accept, but rather because of their authority as a parent or Christ. Kierkegaard says: ‘To be prepared to obey a government if it can be clever is really to make a fool of it. To honour one’s father because he is intelligent is impiety’.29 Their authority derives from our belief and a leap of faith: reason can only get us so far. But this is not to argue that there are no reasons to justify our accepting the authority of their commands. Of 22 Gardner Law n 3 above 138. 23 Gardner Law n 3 above 138-39. 24 Gardner Law n 3 above 144. 25 Gardner Law n 3 above 144. 26 Gardner Law n 3 above 144. 27 Gardner Law n 3 above 147. 28 Gardner Law n 3 above 150. 29 Søren Kierkeggard, ‘Of the Difference between a Genius and an Apostle’ in The Present Age (New York: Torchbook, 1962) 100 7 course, Kierkegaard is providing arguments aimed at convincing us to make a leap of faith after all. The validity of their authority is distinctly separate from a consideration of its merits—and not unlike a legal positivist understanding of law. Now let us return to where this section began and reconsider the possible obscurity of this first, title essay. What is its relevance to the other essays? Gardner’s project is to shake up our widely held beliefs about the law and especially legal positivism to convert us to a more promising and clear view of law. Law requires a leap of faith, but not without reasons which will require our revising commonplace, almost dogmatic, beliefs about the nature of law we would recognise as problematic if only we could see the light. Law as a Leap of Faith is much more about fundamental challenges to our beliefs about the law than providing a new religion. Positivist Morality Perhaps the best known previously published essay in this collection is ‘Legal Positivism: 5 ½ Myths’.30 One particular myth that receives much attention from Gardner concerns the relation of law and morality for legal positivism. Legal positivism is a broad church encompassing a diversity of perspectives. They are thought to adhere to a common core belief about the nature of law summarised by Gardner as LP*: (LP*) In any legal system, whether a given norm is legally value, and hence whether it forms part of the law of that system, depends on its sources, not its merits (where its merits, in the relevant sense, include the merits of its sources). 31 30 See John Gardner, ‘Legal Positivism: 5 ½ Myths’, (2001) 46 American Journal of Jurisprudence 199. 31 Gardner Law n 3 above 21. 8 LP* does not deny that the fact Rex is a noble king may speak to why his subjects understand his word as law, ‘but it is his word that they regard as law’.32 Law is valid dependent on its sources alone. One of the myths Gardner attempts to overcome is that LP* is a proposition about what might make norms valid as legal norms (and thus part of the law). The value or merit of legal norms is a separate matter from their importance for law. But one implication is that we can accept a legal norm as a legal norm without denying the relevance of its merits in the evaluation of law. Gardner emphasizes that LP* is ‘normatively inert’ and value-neutral rather than value-hostile. 33 Legal positivists endorse LP*, but it does not commit them to accepting the so-called ‘separability thesis’.34 The view that legal positivists accept this thesis—the claim that ‘there is no necessary connection between law and morality’—is perhaps the biggest myth of them all with one popular textbook in jurisprudence claiming this thesis is, in fact, ‘the quintessence of legal positivism’.35 Gardner claims the thesis is ‘absurd and no legal philosopher of note has ever endorsed it as it stands’.36 That we have a legal obligation is a question of validity and not its merits. But it is an intrinsically moral question as well because ‘moral issues’ are raised by law ‘even if the law is not advertised or enforced’ because its bare existence can and often does influence how we act and relate to others. 37 Gardner says: ‘Every legal issue, however superficially technical, is a moral issue, for its resolution inevitably has important consequences for someone’.38 The difference between legal systems and games is that while each has rules only the rules in 32 Gardner Law n 3 above 21. 33 Gardner Law n 3 above 36. 34 See Matthew H. Kramer, In Defense of Legal Positivism: Law Without Trimmings (Oxford: Oxford UP, 1999). 35 Howard Davies and David Holdcroft, Jurisprudence: Texts and Commentary (London 1991) 3 cited in Gardner Law n 3 above 48 n 45. 36 Gardner Law n 3 above 48. See 144. 37 Gardner Law n 3 above 135. 38 Gardner Law n 3 above 135-36. 9 legal systems can be moral claims with potentially important consequences. 39 In a later essay, he argues ‘To change the law is inevitably to change the position of some people in morally important ways . . . Every legal issue, however superficially technical, is a moral issue, for its resolution inevitably has morally important consequences for someone’.40 A legal norm is like a ‘putative (or purported or supposed) moral norm’: a legally valid proposal for addressing moral problems. 41 Implicit is the idea that legal obligations possess a moral character which we will return to in the conclusion below. Nevertheless, it is easy to locate the historical genealogy behind the modern origins of this myth. Famously, John Austin argued ‘the existence of law is one thing; its merit or demerit is another’.42 Gardner claims that Hart incorrectly takes this ‘ringing endorsement’ by Austin of LP* as an endorsement of a very different thesis about the separability of law and morality when determining legal validity. 43 For Gardner, Hart should not, and need not, have made this mistake. Of course, if Gardner is correct, it appears that Hart must bear some of the blame for perpetuating this particular myth about legal positivism. Hart is critical of legal theories that offer a ‘close assimilation of law to morality’ because they ‘seem, in the end, often to confuse one kind of obligatory conduct with another’ and they fail to provide sufficient room for differences ‘between legal and moral rules and for divergences in their requirements’.44 Furthermore, Hart defines legal positivism as ‘the simple contention that it is in no sense a necessary truth that laws reproduce or satisfy demands of morality, though in fact they have often done so’.45 Hart then gives us passages that suggest some support for the 39 Gardner Law n 3 above 136. Gardner accepts Raz’s view that any norms arising in games relate to us in ‘a detached way’ unlike norms arising in legal systems. See 156-57 and Raz, ‘Legal Validity’ The Authority of Law n 14 above 153-57. 40 Gardner Law n 3 above 161. 41 Gardner Law n 3 above 162. 42 Cited in Gardner Law n 3 above 48. 43 Gardner Law n 3 above 48. See H. L. A. Hart, ‘Positivism and the Inseparability of Law and Morals’, (1958) 71 Harvard Law Review 593. 44 Hart, The Concept of Law n 2 above 8. 45 Hart, The Concept of Law n 2 above 186. 10 separability thesis. While this support may be illusory, like most myths this one has at least some basis in facts. Nonetheless, Gardner’s claim is that Hart need not have understood legal positivism as requiring a belief about a necessary separation of law and morality. Instead, Hart is only committed to LP* which is a claim about legal validity that denies laws are valid because of their moral merits. Gardner notes that ‘they do not deny the converse proposition that laws might be morally meritorious because of their validity’.46 So while Hart’s claim might appear to defend a particular view about the nature of law, it should only be understood as a claim about legal validity if we view it in its best light. 47 This reading