LEGAL POSITIVISM: 5V4 MYTHS
JOHN GARDNER1
I. ISOLATING LEGAL POSITIVISM
The label "legal positivism" is sometimes attached to a broad intellectual
tradition, distinguished by an emphasis on certain aspects of legal thought and
experience (namely the empirical aspects). This way of using the label is wellsuited
to work in the history of ideas, in which the object of the exercise is to
trace the ways in which philosophical themes were reprised and reworked as
they were handed down from one generation to the next. In such work there
is no need to identify any distinctive proposition that was advanced or
accepted by all those designated as "legal positivists," for the label attaches
by virtue of common themes rather than common theses. But things are
different when the label "legal positivism" is used in philosophical argument.
In philosophical debate our interest is in the truth of propositions, and we
always need to know which proposition we are supposed to be debating. So
there is nothing philosophical to say about "legal positivists" as a group unless
there is some distinctive proposition or set of propositions that was advanced
or assumed by all of them. In philosophical argument, to put it another way,
"legal positivists" stand or fall together only if they are united by thesis rather
than merely by theme. There is neither guilt by association nor redemption by
association in philosophy.
In this paper, I intend to treat one and only one proposition as the
distinctive proposition of "legal positivism," and to designate as "legal
positivists" all and only those who advance or endorse this proposition. The
proposition is:
(LP) In any legal system, whether a given norm is legally valid, and hence
whether it forms part of the law of that system, depends on its sources, not its
merits.
In philosophical argument it matters not which proposition is given which
name; it matters only which is true. On the other hand, I obviously did not
choose this proposition (LP) atrandom to carry the famous "legal positivism"
branding. In the first place, I wanted to bring my use of the label into a
tolerable extensional alignment with the use of the label familiar from the
history of ideas. Those commonly said to constitute the dominant historical
1. This is a revised version of a lecture delivered at Notre Dame Law School on 10 April
2001.
199
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200 THE AMERICAN JOURNAL OF JURISPRUDENCE Vol.46
figures of the "legal positivist tradition"— Thomas Hobbes, Jeremy Bentham,
John Austin, Hans Kelsen, and Herbert Hart—do not converge on many
propositions about law. But subject to some differences of interpretation, they
do converge unanimously on proposition (LP). Secondly, proposition (LP) is
the one that contemporary self-styled "legal positivists"—such as Joseph Raz
and Jules Coleman—bill themselves as subscribing to qua legal positivists,
and the correct interpretation of which they debate when they debate among
themselves qua legal positivists. Finally, my use of the label makes literal
sense of the label itself. What should a "legal positivist" believe if not that
laws are positedl And this, roughly, is what (LP) says of laws. It says, to be
more exact, that in any legal system, a norm is valid as a norm of that system
solely in virtue of the fact that at some relevant time and place some relevant
agent or agents announced it, practiced it, invoked it, enforced it, endorsed it,
or otherwise engaged with it. It is no objection to its counting as a law that it
was an appalling norm that those agents should never have engaged with.
Conversely, if it was never engaged with by any relevant agents, then it does
not count as a law even though it may be an excellent norm that all the
relevant agents should have engaged with unreservedly. As Austin famously
(if perhaps too brashly) expressed the point, "the existence of law is one thing;
its merit or demerit is another."2
We see here how the contrast between "sources" and "merits" in (LP) is
meant to be read. "Source" is to be read broadly such that any intelligible
argument for the validity of a norm counts as source-based if it is not meritsbased.
The two categories, in other words, are jointly exhaustive of the
possible conditions of validity for any norm. But are they also mutually
exclusive? You may say that there is a problem of overlap which prevents us
from classifying some arguments for the validity of a norm as either sourcebased
or merits-based, for they mention conditions of both types. On the one
hand (i) we have arguments that attempt to validate certain norms by relying
on merit-based tests of their sources, e.g. by relying on the fact that they were
announced or practiced by Rex, together with the fact that Rex is a noble king.
On the other hand (ii) we have arguments that attempt to validate certain
norms by relying on source-based tests of their merits, e.g. by relying on the
fact that they are reasonable norms, together with the fact that some other
norm (validated only by its source) instructs us to apply all and only
reasonable norms.
The legal positivist tradition has been united in regarding arguments of type
(i) as invoking merit conditions of a type which cannot possibly be among the
2. Austin, The Province of Jurisprudence Determined (1832; ed. W.E. Rumble,
Cambridge: Cambridge University Press, 1995), 157.
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2001 JOHN GARDNER 201
conditions of a norm's legal validity. The question of whether Rex is a noble
king (or whether the regime in Lilliput is a just one, etc.) obviously bears on
the moral significance of his (its) pronouncements and practices, but the
answer to such questions cannot, according to legal positivists, affect the legal
status of those pronouncements and practices. This is not to deny, of course,
that they can make a merely causal difference to legal status: maybe the fact
that Rex is a noble King explains why his subjects, orhis officials, have come
to regard his word as law. But it is his word that they regard as law. For his
word to be regarded as law it must be possible to regard his word as law
without reopening the question, when his word is heard, of whether he is a
noble king. Thus Rex's nobility, according to legal positivists, cannot make
a constitutive difference to Rex's ability to affect legal validity. So our
approximation (LP) should be reformulated more exactly to read:
(LP*) In any legal system, whether a given norm is legally valid, 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).
As far as arguments of type (ii) are concerned, the tradition has been more
divided. Those who have come to be known as "soft" or "inclusive" legal
positivists allow that in some legal systems norms may be legally valid in
virtue of their merits (e.g. their reasonableness), but only if other legally valid
norms happen to pick out those merits as relevant to legal validity.3
Others,
known correspondingly as "hard" or "exclusive" legal positivists, deny this.
They hold that a law which declares that (say) all and only reasonable laws
shall be valid does not legally validate any further norms, in spite of
appearances. Rather, it delegates to some official (say, a judge) the task of
validating further norms himself or herself by declaring them reasonable. On
this "hard legal positivist" view, the validity of the further laws in question
comes not of their reasonableness (their merit) but rather of the fact that some
relevant agent declared them reasonable (their source).4
3. This possibility was clearly envisaged by Hart in The Concept of Law (Oxford:
Clarendon Press, 1961), 204, and was relied upon in the postscript to the book's second edition
(Oxford: Clarendon Press, 1994) at 250. (Subsequent references are to the first edition unless
otherwise specified.) In themeantime "soft" legal positivismhadbeen proposed byPhilip Soper
in "Legal Theory and the Obligation of a Judge: The Hart/Dworkin Dispute," Michigan Law
Review 75 (1977) 473; David Lyons, "Principles, Positivism, and Legal Theory," Yale Law
Journal 87 (1977) 415; and perhaps most influentially by Jules Coleman in "Negative and
Positive Positivism," Journal of Legal Studies 11 (1982) 139.
4. This was clearly Kelsen's view: see The General Theory of Law and State (New York:
Russell and Russell 1961), e.g. at 134-6. The most influential contemporary exponent of the
"hard" legal positivist view is Joseph Raz: see his "Authority, Law and Morality," The Monist
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202 THE AMERICAN JOURNAL OF JURISPRUDENCE Vol.46
In what follows, I will for the most part bracket the internecine debate
between "hard" and "soft" legal positivists and leave (LP*) ambiguous in
respect of it. Where necessary, I will default to the "hard" version, since that
is the version I support myself. I will leave it to the reader to make the
modifications needed to accommodate the soft version, where relevant. These
modifications should not alter much what I have to say. That is because the
problems I will be surveying—and it will largely be a secondhand survey—are
apt to afflict hard and soft legal positivists alike. In general, they are not
problems of legal positivism's own making. They are problems of systematic
misrepresentation by others. Have the members of any tradition of thought
ever had their actual philosophical commitments so comprehensively mauled,
twisted, second-guessed, crudelypsychoanalyzed, and absurdly reinvented by
ill-informed gossip and hearsay, as the legal positivists? Has any other thesis
in the history of philosophy been so widely and so contemptuously misstated,
misinterpreted, misapplied, and misappropriated as (LP*)? Well, actually, I
can think of a few. Something like this is apt to happen whenever a label is
used in both philosophy and, relatedly, in the history of ideas. "Natural
lawyers" will feel some sympathy, as they often suffer similar indignities.
Nevertheless, there are special and interesting lessons to be learnt from the
catalog of myths about legal positivism that have gradually built up to give it
a whipping-boy status in so much legally-related literature.5
Some of these
lessons, not surprisingly, are lessons about law itself.
n. WHY So MISUNDERSTOOD?
But before we come to the myths, let's just stop to ask ourselves what it is
about legal positivism that made it so ripe for misrepresentation. I think there
are two principal factors.
First: Proposition (LP*), although a proposition about the conditions of
validity of certain norms that may be used in practical reasoning, is itself
normatively inert. It does not provide any guidance at all on what anyone
should do about anything on any occasion. Sometimes, like any proposition,
it does of course serve as the minor (or informational) premise in a practical
syllogism. If someone happens to acquire a duty to determine what the law of
Indiana says on some subject on some occasion, then the truth of (LP*) affects
how she should proceed. According to (LP*), she should look for sources of
Indiana law, not ask herself what it would be most meritorious for people in
68 (1985) 295, further defended in Scott Shapiro, "On Hart's Way Out," Legal Theory 4 (1998)
469.
5. See Fred Schauer, "Positivism as Pariah" in Robert P. George (ed.), The Autonomy of
Law (Oxford: Clarendon Press, 1996).
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2001 JOHN GARDNER 203
Indiana to do. On the other hand, (LP*) is never a major (or operative)
premise of any practical syllogism. That means that by itself it does not point
in favor of or against doing anything at all. I don't just mean that it provides
no moral guidance. It provides no legal guidance either. It merely states one
feature that all legal guidance necessarily has, viz. that if valid qua legal it is
valid in virtue of its sources, not its merits.6
Lawyers and law teachers find
this comprehensive normative inertness in (LP*) hard to swallow. They think
(rightly) that legal practice is a practical business, and they expect the
philosophy of law to be the backroom activity of telling front-line practitioners
how to do it well, with their heads held high. When a philosopher of law
asserts aproposition that neither endorses nor criticizes what they do, but only
identifies some necessary feature of what they do, lawyers and law teachers
are often frustrated. They automatically start to search for hidden notes of
endorsement or criticism, secret norms that they are being asked to follow.
They refuse to believe that there are none.7
They cannot accept that legal
philosophy is not wholly (or even mainly) the backroom activity of identifying
what is good or bad about legal practice, and hence of laying on practical
proposals for its improvement (or failing that, abandonment). In this
fundamentally anti-philosophical climate, a thesis like (LP*), which is inertly
informative, is bound to become egregiously distorted.
Second: To make (LP*) a revealing proposition about law one has to
believe that there is some alternative to validating norms according to their
sources. One has to believe that some norms are valid depending on their
merits, or else one won't see the contrastive purchase of (LP*). Instead, (LP*)
will just strike one as rehearsing a general truth about norms—that all norms
are made valid by somebody's engagement with them—and hence as revealing
nothing special about law. All the torchbearers for the legal positivist tradition
that were mentioned above agreed that, by default, the validity of a norm
depends on its merits: the fact that a norm would be a good one to follow is,
by default, what makes it valid. All agreed, for instance, that this is true of
6. Dworkin's talk of "the grounds of law" in Law's Empire (Cambridge, Mass.: Harvard
University Press, 1986), at 4ff, intentionally elides the distinction I am drawing here. Both the
claim that legal norms are valid on their sources and the claim that legislation constitutes a
source of valid legal norms are treated by Dworkin as legal claims. But only the second is a
legal claim. The first is a claim about what makes the second a legal claim. To be exact,
"legislation is a source of valid legal norms" is a legal claim only if the norm it mentions (viz.
the norm of legislation-following) is itself being held out as valid on the strength of its sources
rather than its merits (e.g. on the strength of the fact that legislation is identified as a source of
law in a constitutional document or judicial practice.)
7. For aparticularly clearexpression ofthis refusal, seeGeraldJ. Postema, "Jurisprudence
as Practical Philosophy," Legal Theory 4 (1998) 329.
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204 THE AMERICAN JOURNAL OF JURISPRUDENCE Vol.46
moral norms.8
Legal norms, they agreed, are special (although not unique) in
defying this default logic of norm-validation. How on earth do they defy it?
It is a matter of deep wonderment to many philosophers.9
Alas, many lawyers
and law teachers and students do not share the wonderment. For many in these
lines of work think—being especially affected by a feature they see every day
and take for granted in legal norms—that whether any norm is valid can
depend only on its sources. They assume that moral and aesthetic norms are
the same: just like legal norms, they can only be validated by the beliefs or
endorsements of their users, or by social conventions or practices, etc. When
one proposes a moral or aesthetic norm, such people often react in classic
positivist fashion by asking "Who says?" or "On whose authority?" (as if the
validity of a moral or aesthetic norm would depend on somebody saying it or
authorizing it) rather that by asking what is the merit of the norm. Such
general normative positivists—and they have always dominated the Critical
Legal Studies movement and similar pseudo-radical camps—naturally cannot
see what (LP*) has to offer in illuminating the distinctive nature of law.10
So
if legal positivism is to illuminate the distinctive nature of law, the thinking
goes, (LP*) cannot be all there is to it. There must be more. And there begins
the myth-spinning.
HI. THE MYTHS
A. The value ofpositivity
My title says I will cover 5Vi myths about legal positivism, and I will begin
with the half-myth. At the inception of the legal positivist tradition—in the
work of Hobbes and arguably that of Bentham—we find an (LP*)-inspired
optimism about the value of law. Insofar as legal norms are valid on their
8. Kelsen is an apparent exception. He normally reserved the label "morality" for a
specialized order of posited (conventionally- or ecclesiastically-validated) norms rivaling law.
Nevertheless, his workalways presupposed thepossibility of genuine moral norms valid on their
merits. I have defended this reading of Kelsen in "Law as a Leap of Faith," in Peter Oliver,
Sionaidh Douglas Scott and Victor Tadros (eds.), Faith in Law (Oxford: HartPublishing, 2000).
9. As Hart expressed the wonderment: "How are the creation, imposition, modification
and extinction of obligations and other operations on other legal entities such as rights possible?
How can such things be done?" See Hart "Legal and Moral Obligation" in Melden (ed.), Essays
in Moral Philosophy (Seattle: University of Washington Press, 1958), 82 at 86.
10. When legal positivists are labeled simply as "positivists," or it is otherwise insinuated
that they tend to share the broader philosophical positions of e.g. Comte or Ayer—beware! It
is usually the pot calling the kettle black. And nowhere more spectacularly than in the work of
Stanley Fish: e.g. "Wrong Again," Texas Law Review 62 (1983) 299 at 309ff, especially note
31.
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2001 JOHN GARDNER 205
sources rather than their merits, this fact alone is held to endow legal norms
with some redeeming merit even when they are (in every other respect)
unmeritorious norms." Their redeeming merit is their special ability to settle
matters that cannot be settled one way or the other on their merits. Believers
in this claim are sometimes known as "normative legal positivists" but here
I will call them "positivity-welcomers."12
That is because they need not
endorse (LP*) and hence need not be legal positivists in the sense I am
exploring. As positivity-welcomers they merely endorse
(PW) To the extent that (LP*) is sound, it identifies something not only true
about legal norms, but meritorious about legal norms as well.
Those who are both legal positivists and positivity-welcomers are less
frustrating to lawyers and law-school-dwellers than other legal positivists. For
such people give (LP*) some immediate and invariant practical significance
of a kind that warms our legal hearts. They tell us that the positivity of law is
not only something we have to live with, but also something we can be proud
of. Thanks to the truth of (LP*) combined with the truth of (PW), they say, it
is always in one respect meritorious-—and hence ceteris paribus justifiable—to
advance a legal solution (however otherwise unmeritorious) to a
moral or economic problem that would be intractable on its merits alone.
This rather self-congratulatory conclusion has not been common ground
among the leading figures of the legal positivist tradition, and in particular the
philosophical maturing of the tradition in the twentieth century led to its
abandonment by the tradition's most important modern torchbearers, among
them Kelsen, Hart, and Raz. Hartis an especially interesting case. Hart agreed
with those who say that all laws have a redeeming merit which comes of their
very nature as laws. However, he did not trace this redeeming merit of all laws
to their positivity. He traced it instead to the fact that, in his view, laws are not
merely norms but rules, i.e. norms capable of repeated application from case
to case. This fact of their normative generality, he thought, means that
11. See e.g. Hobbes, "Questions Concerning Liberty, Necessity, and Chance" in W.
Molesworth (ed.), The English Works of Thomas Hobbes (London: Bohn, 1839-1845), vol. v,
at 194. For thorough documentation of Bentham's complex views on the built-in merit of law,
see Gerald Postema, Bentham and the Common Law Tradition (Oxford: Clarendon Press,
1986).
12. Prominent examples of positivity-welcomers today: Neil MacCormick, "A Moralistic
Case for A-moralistic Law," Valparaiso Law Review 20 (1985) 1; Tom Campbell, The Legal
Theory of Ethical Positivism (Aldershot: Dartmouth, 1996); Jeremy Waldron, "Normative (or
Ethical) Positivism" inJules Coleman (ed.), Hart's Postscript (Oxford: Oxford University Press,
2001), 410.1 erred on the side of excess in the list of legal positivists I classified as positivitywelcomers
in my review of Campbell's book in King's College Law Journal 9 (1998) 180.
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206 THE AMERICAN JOURNAL OF JURISPRUDENCE Vol. 46
wherever laws go a kind of justice (and hence a kind of merit) automatically
follows, for the correct re-application of any law entails that like cases are
treated alike.13
My own view, contrary to Hart's, is that there is nojustice (and
more generally no merit) to be found in the mere fact that like cases are
treated alike.14
But be that as it may, Hart's belief that all laws have some
redeeming merit has everything to do with the fact that in his view laws are
general norms and nothing to do with the fact that in his view they are posited
norms. These two qualities are unconnected.15
Notice that as it stands, (LP*)
is not a proposition specifically about laws. It is a proposition about what
makes norms valid as legal norms, and hence as part of the law. It includes
within its scope nongeneral legal norms such as the ruling that Tice must pay
$50 to Summers in damages. This too is valid as a legal norm on its sources,
according to (LP*), even though it is not a norm capable of repeated
application and hence would not be a law, according to Hart—and hence
would not share in the value that Hart ascribes to all laws.
Some legal positivists go further, as Raz does, and deny that there is any
built-in merit in all laws, let alone in all legal norms.16
Observers of such
debates often ask: If legal positivists disagree among themselves about
whether the positivity of legal norms lends them any value, why is it that they
all mysteriously agree in making such a fuss about the positivity of law?
Doesn't it reveal that they all think it important that legal norms are posited
norms? True enough. Philosophers who defend (LP*), like all other philosophers,
are offering an interpretation of their subject matter that plays up the
true and important and plays down the true but unimportant.17
But what is
important about legal norms, even what is important for their evaluation, need
not be something that lends value or merit to them. Notice that the positivity
13. See Hart's 1958 essay "Positivism and the Separation ofLaw and Morals" in his Essays
in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983), 49 at 81; also The Concept
of Law, supra, note 3, chapter 8.
14. See my lecture "The Virtue of Justice and the Character of Law" in Current Legal
Problems 53 (2000)1.
15. Some of Bentham's remarks cited by Postema, note 11, supra, suggest that for him the
only built-in merit of laws lies in their combination of generality and positivity, which is why
I said that he was only arguably a supporter of (PW).
16. See Raz's assembled arguments in chapters 12 and 13of TheAuthority ofLaw (Oxfoid:
Clarendon Press, 1979). These add up to a rebuttal not only of law's built-in rational appeal but
also (by the same token) of its built-in merit.
17. Which shows that it is a mistake to follow Ronald Dworkin in contrasting "interpretive"
accounts of law's nature with "descriptive" ones, unless one happens to share Dworkin's
idiosyncratic "constructive" view of interpretation. Cf. Dworkin, "Legal Theory and the
Problem of Sense" in Ruth Gavison (ed.), Issues in Contemporary Legal Philosophy (Oxford:
Clarendon Press, 1987), 9 at 13-14.
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2001 JOHN GARDNER 207
of law could also be evaluatively important as a ground of abhorrence for law,
as something that automatically drains merit out of each legal norm rather than
adding merit to it. Anarchists, for example, can turn their arguments against
submission to authority into arguments against respect for law only by
endorsing (LP*) as a stepping stone. Only if legal norms are posited by
someone do they count as exercises of authority. Anarchists who do not
endorse (LP*) therefore should not have a blanket opposition to respecting
legal norms qua legal. That anarchists do typically have a blanket opposition
to respecting legal norms qua legal shows that they are typically legal
positivists. Would one suppose that this in turn showed a secret belief, on the
part of all such anarchists, that all legal norms, or all laws, have a built-in
redeeming merit?
If not, then one should not jump to that conclusion regarding nonanarchistic
legal positivists either. It is open to them to hold, for example, that
the truth of (LP*) is evaluatively important precisely because (LP*) brings out
a single feature of legal norms that leads anarchists to find laws invariably (in
one respect) repugnant and some of their opponents to find laws invariably (in
one respect) attractive. Nor are these—invariable repugnance and invariable
attraction—the only possible evaluative reactions to law's positivity. Perhaps
the positivity of law sometimes makes law more repugnant and sometimes
makes it more attractive and sometimes makes no difference at all to law's
value, depending on what other conditions hold. Only if a law is meritorious
in some other ways, say, does its positivity lend it additional merit. I am not
advocating this position. I am only saying that the truth of (LP*) must be
granted, at least arguendo, before the argument over this position can even
begin. This shows why philosophers of law might regard the positivity of legal
norms as evaluatively important without thereby being predisposed to the
(LP*)-inspired but not (LP*)-entailed thesis (PW).
B. The rule of law
Legal positivists are sometimes identified as placing a particular emphasis
on the ideal of the rule of law (or Rechtstaai) as opposed to other ideals of
government. No doubt on some occasions this is just another way of saying
that legal positivists are relative enthusiasts for law, in that they see some
built-in redeeming merit in legal norms qua posited. This is the half-myth that
we already considered underheading (A), involving the extra thesis (PW). But
on at least some occasions the association of legal positivism with the rule of
law is clearly supposed to suggest a different point not implicating (PW). It is
supposed to suggest that legal positivists insist on the evaluation of laws
according to their form (e.g. their clarity, certainty, prospectivity, generality,
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208 THE AMERICAN JOURNAL OF JURISPRUDENCE Vol.46
and openness) as opposed to their content (e.g. what income tax rate they set,
or what limits on freedom of speech they authorize). The label "rule of law"
is used to designate the former clutch of "content-independent" evaluative
criteria.18
It is hard to disentangle the various confusions that underlie this myth. The
simplest and commonest confusion seems to be this one. Thanks to the sloppy
multi-purpose way in which the word "formal" is bandied around by lawyers,
the distinction just drawn between the form of a law and its content is often
conflated with the distinction drawn in (LP*) between source-based criteria
of normative validity and merits-based criteria. Thus, those who think that
norms are legally valid according to their sources and not their merits are then
herded together with those who think that norms are legally valid according
to their form rather than their content.19
This herding-together is muddled.
While the former position is the legal positivist one captured in (LP*), the
latter is a classic anfi-legal-positivist position often associated (fairly or
unfairly) with Lon Fuller.20
To hold a norm legally valid according to its
formal merits rather than according to the merits of its content is still to hold
it valid according to its merits, and this puts one on a collision course with
(LP*).
This point is spelled out by Hart in a passage towards the end of The
Concept of Law.21
Alas, Hart later went on to court confusion on the same
point by suggesting that legal reasons (including legal norms) are distinctive
in being reasons of a content-independent type.22
Unlike moral and economic
norms, their validity cannot be affected by their content. In saying this, Hart
cooked up a red herring the scent of which still lingers.23
The validity of legal
18. See e.g. Hugh Collins, "Democracy and Adjudication" in Neil MacCormick and Peter
Birks (eds.), The Legal Mind (Oxford: Clarendon Press, 1986), 67 at 68; Kenneth Winston,
"Constructing Law's Mandate" in David Dyzenhaus (ed.), Recrafting the Rule ofLaw (Oxford:
Hart Publishing, 1999), 290ff.
19. See e.g. Dworkin, Taking Rights Seriously (London: Duckworth, 1977), 17: legal
positivists' criteria of legal validity have to do "not with [the] content [of norms] but with ...
the manner in which they were adopted or developed."
20. "Positivism and Fidelity to Law: A Reply to Professor Hart" Harvard Law Review 71
(1958) 630.1 say "fairly or unfairly" because arguably Fuller is not talking about the conditions
of legal validity at all, and so is not engaging with (LP*). Arguably he is talking about the
conditions under which (admittedly valid) law deserves no respect among legal officials.
21. In The Concept of Law, supra, note 3, 202-7.
22. "Commands and Authoritative Legal Reasons" in his Essays on Bentham (Oxford:
Clarendon Press, 1982), 243 at 254-5.
23. I am not doubting the value of the idea of content-independence in framing or solving
otherphilosophical problems. Forexample, the notion does help to illuminate (as Hart observes)
the difference between norms and other reasons. For more sweeping (although I think
unsuccessful) objections to the philosophical value of the idea of content-independence, see P.
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2001 JOHN GARDNER 209
norms can depend on their content so long as it does not depend on the merits
of their content. That a certain authority has legal jurisdiction only to change
the criminal law means that, by virtue of their content, its measures purporting
to create new causes of action in tort do not create valid legal reasons.
Conversely, and by the same token, the validity of legal norms cannot depend
on their merits even if their merit does not lie in their content but lies rather
in their form, e.g. in the extent of their compliance with rule-of-law standards.
Hart should have said, to get to the real point, that legal reasons (including
legal norms) are reasons of a distinctively mer/Mndependent type. They take
their legal validity from their sources, not from their merits, and their merits
for these purposes include not only the merits of their content but also the
merits of their form (as well as the merits of the person or people who
purported to make them or the merits of the system within which they were
purportedly made etc.). Thus, as Hart had correctly explained in his earlier
engagements with Fuller, a legal norm that is retroactive, radically uncertain,
and devoid of all generality, and hence dramatically deficient relative to the
ideal of the rule of law, is no less valid qua legal, than one that is prospective,
admirably certain, and perfectly general.24
The conflation of the form-content distinction with the source-merit
distinction is compounded, in many discussions of the relationship between
legal positivism and the rule of law, by numerous other confusions. In the
background of such discussions seems often to lurk the further assumption
that the apt ways of evaluating any norm are dictated by the conditions of its
validity. Thus, if we suppose that all conditions of legal validity are sourcebased,
we are limited to source-based criticisms of the law; if we endorse
"formal" conditions of legal validity, we are limited to "formal" criticisms of
the law, and so forth. Why should this be so? It implies that the only criticism
one can properly make of a supposed legal norm is that it is legally invalid.
But far from being the only proper criticism of a supposed legal norm, this
need not be any criticism at all. Agreeing that a norm is legally valid is not
Markwick, "Law and Content-Independent Reasons," Oxford Journal of Legal Studies 20
(2000) 579.
24. But isn't this insistence on the possibility of legal validity without conformity to the rule
of law at odds with Hart's view, already mentioned at note 13, supra, that all laws (being not
only norms but rules) have a built-in element of generality? No, it isn't. For the absence of this
element of generality, as we saw, does not affect the legal validity of any norm, in Hart's view.
It only affects whether it is a valid law as opposed to a legally valid norm of a nongeneral type
(e.g. Tice must pay $50 to Summers). Either way, its legal validity turns on its source not its
generality. Apart from which, the minimal generality required to achieve "rulishness" clearly
falls well short of the measure of generality expected by any credible version of the rule-of-law
ideal. One cannot congratulate oneself on having conformed to the generality clause of the rule
of law merely by virtue of the fact that the norm one made was a rule.
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210 THE AMERICAN JOURNAL OF JURISPRUDENCE Vol. 46
incompatible with holding that it is entirely worthless and should be
universally attacked, shunned, ignored, or derided. There are substantive
moral debates to be had—independently of the normative inert (LP*)—about
the attitude one should have to legally valid norms. In these debates the whole
gamut of possible attitudes is on the table. Remember the anarchists we
encountered above, who went as far as to regard the fact that a norm is posited
is actually part of the case for attacking it, shunning it, ignoring it, or deriding
it? Even for positivity-welcoming legal positivists, who combine (LP*) and
(PW) and conclude that legally valid norms necessarily have some redeeming
merit, this is still only a redeeming merit. It does not affect the possibility of
attacking, shunning, ignoring, or deriding the same legal norm on the ground
of its many more striking and important demerits. Those demerits may
obviously include the demerits of its content (e.g. what income tax rate it sets
or what limits on freedom of speech it authorizes) as well as the demerits of
its form (e.g. its unclarity, uncertainty, retroactivity, ungenerality, and
obscurity).
And why, to bring out one final confusion under this heading, should these
last two dimensions of criticism be regarded as rivals? That one believes that
unclarity, uncertainty, retroactivity, ungenerality, obscurity and so forth are
demerits of a legal norm does not entail that one denies that there are further
demerits in the same norm's content (e.g. that it sets a too-low rate of income
tax or a too-high protection for freedom of speech). Nor does it suggest that
one regards the former demerits as more important than the latter. One may
well think, to be sure, that the former demerits are in a sense more peculiarly
legal demerits than the others. As a believer in (LP*), one is committed to
agreeing with Hart that the law's living up to the rule-of-law values that Fuller
called the "inner morality of law" cannot be among the conditions for the legal
validity of any norm. But so long as they are not held to be among the
conditions for the legal validity of any norm, one is not debarred from
agreeing with Fuller that these values constitute law's special inner morality,
endowing law with its own distinctive objectives and imperatives.25
Legal
positivism is not a whole theory of law's nature, after all. It is a thesis about
legal validity, which is compatible with any number of further theses about
law's nature, including the thesis that all valid law is by its nature subject to
special moral objectives and imperatives of its own. It is a long way from this
thesis, however, to the conclusion that valid law answers only to its own
special objectives and imperatives, and not to the rest of morality. A more
credible assumption is that law's inner morality, if it has one, adds extra moral
objectives and imperatives for legal norms to live up to, on top o/the regular
25. Hart, The Concept of Law, supra, note 3, 202.
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2001 JOHN GARDNER 211
moral objectives and imperatives (e.g. avoiding the infliction of pain, not
deceiving its addressees) that every practice or activity should live up to as a
matter of course. Naturally, this addition of extra moral objectives and
imperatives can give rise to extra conflicts. Sometimes laws that have
meritorious content can accordingly be made morally questionable by the fact
that there is no way to make them sufficiently clear, certain, prospective,
general, or open. Thus—true enough—the pursuit of some other sound
governmental ideals may sometimes be slowed down by adherence to the ideal
of the rule of law.
But this is no reason to imagine that those who subscribe to the ideal of the
rule of law have no commitment to any potentially conflicting ideals of
government, or that they automatically regard potentially conflicting ideals as
subordinate, or that they do not regard the law as answering to any ideals apart
from the specialized ideal of the rule of law.26
In particular, none of the
leading figures of the legal positivist tradition subscribed to any views
resembling any of these. And even if they had, for the reasons I have given,
this could have had no philosophical connection with their being legal
positivists.
C. Positivistic adjudication
In some quarters legal positivists are thought to be committed to a
distinctive view about the proper way of adjudicating cases, according to
which judges should not have regard to the merits of cases when deciding
them. This conclusion generally comes of combining an endorsement of (LP*)
with the widespread assumption that judges are under a professional (i.e. a
role-based moral) obligation to decide cases only by applying valid legal
norms to them.27
But the latter assumption is not shared by legal positivists in
general and is directly challenged by several of the tradition's leading figures.
The simplest way to challenge it is to rely on its systematic and unavoidable
collision with anotherpressing professional obligation ofjudges, namely their
obligation not to refuse to decide any case that is brought before them and that
lies within theirjurisdiction. Ifjudges are professionally bound to decide cases
only by applying valid legal norms to them, the argument goes, then there are
necessarily some cases that they should refuse to decide, for there are
necessarily some cases not decidable only by applying valid legal norms. This
26. Friedrich Hayek did much to encourage the view that allegiance to the rule of law
requires a suppression of all other ideals for government and law: cf. The Road to Serfdom
(London: George Routledge, 1944), 54ff. However, Hayek's arguments to this effect were
uniformly fallacious.
27. Cf. Dworkin, Law's Empire, supra, note 6, 6-8.
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212 THE AMERICAN JOURNAL OF JURISPRUDENCE Vol. 46
in turn is so precisely because of the positivity of legal norms. There are
inherent limitations on the ability of agents to anticipate future cases in which
the norms they create may be relied upon, and to shape the norms they create
in such a way as to settle across the board which cases they apply to.28
Insofar
as legal norms are the creations of agents—i.e. insofar as they are the posited
norms that (LP*) tells us they are—these inherent limitations inevitably give
rise to some gaps in the law.
When I speak of "gaps" here, I do not mean that the law is silent regarding
some cases. Closure rules (such as "everything not forbidden by law is
permitted by law") are perfectly capable of preventing legal silence.29
Rather,
the gaps I have in mind arise (i) in cases in which a given legal norm is neither
applicable nor inapplicable, butrather indeterminate in its application, and (ii)
in cases in which valid legal norms conflict so that two rivals (e.g. one
forbidding a certain action and the other requiring the same action) are both
applicable at once and there exists no third legal norm that resolves the
conflict. No closure rule, however ingenious, can guarantee to eliminate these
latter types of gaps.30
They are endemic to law, in all legal systems, thanks to
the positivity of law. This makes it inevitable that if judges are to decide all
cases validly brought before them, they will sometimes have to go beyond the
mere application of posited (including legal) norms. And once they have
exhausted all the normative resources of posited norms, what else is there for
them to rely on but the merits of the case and hence of the various norms that
might now be posited in order to resolve it?
The picture presented here—which is mainly attributable to the work of
Hart and Raz, but also owes something to Kelsen— makes legal positivists the
natural enemies of the mythological "legal positivist" view thatjudges should
not have regard to the merits of cases when deciding them. Except by
withdrawing fromjudges the requirement to decide every case validly brought
before them, legal positivists cannot but ascribe to judges the role of
determining at least some cases at least partly on their merits, and hence
cannot but expect of them that they will go beyond the task of merely applying
valid law. This brings out the important fact that, in dealing with the full
28. As explained at length by Hart in The Concept of Law, supra, note 3, 121-132.
29. Cf. Kelsen's denial of the possibility of legal gaps in the sense of silences in "On the
Theory of Interpretation," Legal Studies 10 (1990) 127 at 132. As Kelsen rightly observes,
deontic logic supplies automatic closure rules for cases in which the law fails to do so. Since
these defaults are not valid on their sources but are necessary truths they are not valid as legal
norms according to (LP*). This reminds us that the view according to whichjudges should only
apply legal norms is in one respect absurd. At the very least, they also need to apply the norms
of logic, which are valid on their (intellectual) merits.
30. Joseph Raz, The Authority of Law, supra, note 16, 70ff.
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2001 JOHN GARDNER 213
gamut of human decision, source-based and merit-based norms are apt to call
upon each other's services at frequent intervals. At least sometimes, relying
on source-based norms is warranted because it provides one way of resolving
cases that cannot be completely resolved on their merits. On any view, this
provides at least part of the justification (such as it is) for having legal
systems. It is this fact, you will recall, that positivity-welcomers inflate to
yield their conclusion that all laws have some redeeming merit just in virtue
of their positivity. What they less often notice, however, is that the reverse
point also holds with similar force and on similar grounds. At least sometimes
relying on some or all of the merits of a case is warranted because it provides
a way of resolving cases that cannot be completely resolved according to the
applicable source-based norms. This does not necessarily turn into a constant
buck-passing exercise. The source-based norms may obviously narrow the
issue such that it can now be resolved on the merits even though, without the
intervention of source-based norms, it would not have been resolvable on the
merits.
This proposal invites a modification of the myth under consideration. Are
legal positivists at the very least committed to the view that judges should, if
possible, decide cases by applying source-based norms? Shouldjudges resort
to deciding on the merits only as a fallback, when legal norms cannot settle the
matter? This idea has some moral appeal. But it is still not one that has any
natural affinity with legal positivism. As I explained, (LP*) is normatively
inert. It only tells us that, insofar as judges should apply legal norms when
they decide cases, the norms they should apply are source-based norms. But
that leaves completely open the vexed questions of whether and when judges
should only apply legal norms. Some legal positivists—one thinks particularly
of Bentham—happen to be enthusiasts for limiting the role of judges in
developing the law.31
It would be better, on this Benthamite view, if judges
stuck to merely applying the law, so far as possible, and left law-making
activities by and large to the legislature. Is (LP*) implicated in this view in
any way? No. Bentham's preference for the legislature to make the law and
judges to apply it is in fact totally independent of his legal positivism. One
could equally be a legal positivist enthusiast for judges to be the main
lawmakers. Moreover, endorsing (PW) changes nothing on this front. Unlike
(LP*), (PW) is obviously not normatively inert. It does have some implications,
even taken on its own, for what some people should sometimes do. But
it still does not bring us any closer to the conclusion that legislatures should
31. See Postema, supra, note 11, at 197, citing Bentham's manuscript remark that "[no]
degree of wisdom ... can render it expedient for a judge ... to depart from pre-established
rules."
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214 THE AMERICAN JOURNAL OF JURISPRUDENCE Vol. 46
make the law andjudges should so far as possible only apply it. For (PW), like
(LP*), is completely indifferent as between legislative andjudicial sources.32
It holds that the positivity of legal norms endows them with some redeeming
merit, whatever their demerits. If it is truly the positivity of legal norms that
supposedly endows them with this redeeming merit (and not some other
feature), then the merit in question necessarily remains constant as between
enacted andjudge-made legal norms. Forjudge-made legal norms are no less
posited than their enacted counterparts. This is acknowledged in the very idea
thatjudge-made law isjudge-made, i.e. is legally valid because somejudge or
judges at some relevant time and place announced it, practiced it, invoked it,
enforced it, endorsed it, accepted it, or otherwise engaged with it.
D. Judicial legislation
Legal positivism militates against the assumption that judges should only
and always apply valid legal norms. This is sometimes held to be a reason to
abandon legal positivism. This suggestion lay at the heart of Ronald
Dworkin's first critique of Hart's work. Dworkin agreed with Hart thatjudges
cannot but decide some cases at least partly on their merits. However, he
refused to concede that this could possibly involve judges in doing anything
other than applying valid legal norms. If they did anything other than applying
valid legal norms they would be part-time legislators, Dworkin said, and that
would lay to waste the important doctrine of the separation of powers between
the legislature and the judiciary. It would also condemn the law to violations
of the rule-of-law ban on retroactive legislation, for the law made by judges
would necessarily be applied by them retroactively to the cases before them.
On these twin grounds Dworkin felt impelled to reject (LP*). He famously
concluded that the validity of some legal norms depends on their merits rather
than their sources. It depends, in his view, on their merits as moral
justifications for other (source-based) legal norms.33
32. This remains true when it is formulated as the thesis that "the law ought to be such that
legal decisions can be made without the exercise of moral judgment": Jeremy Waldron, "The
Irrelevance of Moral Objectivity" in Robert George (ed.), Natural Law Theory (Oxford:
Clarendon Press, 1992). Judges can help to make the law like this no less than legislatures.
33. Taking Rights Seriously, supra, note 19, chapter 2.1 omit the further and independent
claim that source-based legal norms are "rules" and merit-based ones are "principles." Hartused
the word "rule" in its ordinary sense simply to mean "general norm." Principles are general
norms and hence count as rules in Hart's sense. Dworkin, on the other hand, gave "rules" a
special technical meaning: they are general norms that cannot be either more or less weighty.
His claim that all source-based norms must be rules in this special technical sense is mistaken.
Source-based norms are more or less weighty in proportion to the importance of their source:
one owed to the Supreme Court has greater weight than one owed to the Court of Appeals, etc.
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2001 JOHN GARDNER 215
Even if we grant the premises, we may marvel at the conclusion. Why
should the fact that the law would inevitably fail to live up to certain ideals if
(LP*) were true be a reason to deny (LP*), rather than a reason to admit that
law inevitably fails to live up to certain ideals, or perhaps a reason to wonder
whether one has exaggerated the ideals themselves?34
But never mind that
familiar challenge to Dworkin's conclusion. Instead, I want to focus on
Dworkin's premise according to which (LP*), at least in Hart's hands, turns
judges into part-time legislators. Here we see a fresh myth that is sometimes
wheeled out, in combination with the mythjust considered under heading (C),
to effect a kind of pincer movement against legal positivists as a group. Either
legal positivists agree that judges should not decide cases on their merits
(absurd!), or they become committed to the view that judges are part-time
legislators (intolerable!).
The latter myth—Dworkin's myth—has at its source the mistaken
assumption that all law-making is necessarily legislative law-making. It is fair
to point out that Hart accidentally encouraged this mistaken assumption. He
said that, in cases in which a case cannot be decided by applying only valid
legal norms, the judge has "discretion" to decide the case either way.35
Technically this is correct. The case is ex hypothesi unregulated by law in
respect of its result and that makes the result legally discretionary. But talk of
"discretion" is also misleading here. It suggests a judge who is entitled,
consistently with his orherprofessional obligations, to give up legal reasoning
and instead simply to reason morally or economically or aesthetically, or
maybe even not to reason at all any more but simply go with his or her gut
instinct, the toss of a coin, etc. But giving up legal reasoning in this way, at
least at this early stage in the game, would admittedly be a violation of a
judge's professional obligations. For judges admittedly have a professional
obligation to reach their decisions by legal reasoning. And even in a case
which cannot be decided by applying only existing legal norms it is possible
to use legal reasoning to arrive at a new norm that enables (or constitutes) a
decision in the case, and this norm is validated as a new legal norm in the
process.
Obviously, legal reasoning, in this sense, is not simply reasoning about
what legal norms already apply to the case. It is reasoning that has already-
34. For (LP*)-independent reasons to think that law inevitably fails to live up to the ideal
of the rule of law, properly understood, see my "Rationality and the Rule of Law in Offences
Against the Person," Cambridge Law Journal 53 (1994) 502. For (LP*)-independent reasons
to think that some people exaggerate the ideal of the rule of law, and so read conformity as
violation, see Timothy Endicott, "The Impossibility of the Rule of Law," Oxford Journal of
Legal Studies 19 (1999) 1.
35. The Concept of Law, supra, note 3, 128.
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216 THE AMERICAN JOURNAL OF JURISPRUDENCE Vol.46
valid legal norms among its major or operative premises, but combines them
nonredundantly in the same argument with moral or other merit-based
premises. To forge a (legally simplified) example: (1) the Civil Rights Act of
1964 gives everyone the legal right not to be discriminated against in respect
of employment on the ground of his or her sex (source-based legal norm); (2)
denying a woman a job on the ground of her pregnancy is morally on a par
with discriminating against her on the ground of her sex, even though there is
no exact male comparator to a pregnant woman that would allow the denial to
count as sex-discriminatory in the technical sense (merits-based moral claim);
thus (3) women have a legal right not to be denied ajob on the ground of their
pregnancies (new legal norm); now (4) this woman P has been denied ajob by
D on the ground of her pregnancy (proven fact); thus (5) D owes P a job (a
further new legal norm, but a nongeneral one).
This is a classic example of legal reasoning. Naturally, I have sidelined
some possible complications. In particular I have ignored conflicting legal
norms that may inhibit judicial delivery of new legal norms by this kind of
reasoning. If a previous judicial decision establishes norms inconsistent with
(3), then the rules of stare decisis applicable in the legal system in question
may affect what a judge faced with the facts in (4) has the legal power to do.
Perhaps she may overrule the earlier decision. Or perhaps she has scope to
distinguish the earlier decision, i.e. to rely on and hence validate a norm
narrower than (3) which is consistent with the earlier decision, but which still
reflects the moral force of (2), and which still yields (5). Or perhaps not.
These questions depend on the local legal norms establishing her powers as
a judge. These norms set source-based constraints on the judge's use of
merits-based legal reasoning. If the judge violates these constraints, different
legal systems cope differently with the violation. Some may have a per
incuriam doctrine similar to the common law one that eliminates the legal
validity of norm (3) but leaves norm (5) legally valid until the case is
appealed. Others may have different solutions. The possibilities are endless.
But none of this detracts from the main point. The main point is that the
reasoning from (1) to (5) is an example of specifically legal reasoning—
reasoning according to law—because the existing legal norm in premise (1)
plays a nonredundant but also nondecisive role in the argument. Because the
existing law is not decisive the judge necessarily ends up announcing,
practicing, invoking, enforcing, or otherwise engaging with some new norm
or norms (which may of course be modifications of existing legal norms), in
this case the norms in (3) and (5). In virtue of (and subject to) thejudge's legal
powers to decide cases on this subject, these new norms become legally valid
in the process, at least for the purposes of the present case. If thejudge sits in
a sufficiently elevated court, then, depending on the workings of the local
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2001 JOHN GARDNER 217
stare decisis doctrine, the new norms may also become legally valid for the
purposes of future cases, subject always to future judicial powers of
overruling and distinguishing. But that future validity does not turn these new
norms into legislated norms even if they have exactly the same legal effects
as legislated norms. In creating new legal norms by legal reasoning, or
according to law, thejudge plays a different role from that of a legislature. For
a legislature is entitled to make new legal norms on entirely nonlegal grounds,
i.e. without having any existing legal norms operative in its reasoning. A
legislature is entitled to think about a problem purely on its merits. Thus, it
can enact laws against pregnancy-related denials of employment without
having to rely on the existing norms of the Civil Rights Act (or other
specifically legal materials) to do so. But not so a judge. Barring special
circumstances, ajudge may only create this new legal norm on legal grounds,
i.e. by relying on already valid legal norms in creating new ones.
This is not the only difference between legislative andjudicial law-making,
but for our purposes it is the most important.36
Dworkin may object that it is
a merely verbal quibble. His arguments were directed against judicial lawmaking,
he may say, whether we bless it with the name of "legislation" or not.
But that is not true. Dworkin's arguments were based respectively on the
moral importance of the separation of powers, and the rule of law's ban on
retroactivity. What is really morally important under the heading of the
separation of powers is not the separation of law-making powers from lawapplyingpowers,
butrather the separation of legislative powers of law-making
(i.e. powers to make legally unprecedented laws) fromjudicial powers of lawmaking
(i.e. powers to develop the law gradually using existing legal
resources). Similarly, the only morally credible rule-of-law ban on retroactive
legislation isjust that, namely a ban on retroactive legislation, not a ban on the
retroactive change of legal norms even when that change is made in
accordance with law. In short, the distinction I drew between legislation and
judicial law-making, far from being a merely verbal one, is a distinction of
great significance in many moral (and some legal) arguments—notably the
classic moral arguments based on the separation of powers and the rule of law
that Dworkin himself invokes.
It is also entirely consistent with (LP*). According to (LP*), norms are
made legally valid by someone's having engaged with them. A judge's
engagement with norms by mounting a defense of them partly in terms of
other legal norms is one such type of engagement. It differs in deeply
important ways from the legislative engagement that consists in the norm's
36. It is explored most fully in Raz, Ethics in the Public Domain (Oxford: Clarendon Press,
1994), chapters 11 and 13 (chapters 12 and 14 in the paper edition).
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218 THE AMERICAN JOURNAL OF JURISPRUDENCE Vol.46
straightforward (legally undefended) pronouncement. So it is a myth that legal
positivists must become believers injudicial legislation as soon as they agree
that legal norms do not settle every case.
E. Interpretation
It is sometimes hinted by critics, and widely believed by students, that legal
positivists must favor particular methods of legal interpretation. They must be
supporters of interpretation using only the resources of the legal text itself.37
Or maybe believers in interpretation according to the original intention of the
law-maker.38
Why these particular methods of interpretation? Because
presumably the act of positing that legally validates a norm under (LP*) must
also identify the norm that it validates. And it may seem that there are only
two aspects of the positing act that are suitable candidates for this
identificatory role: the text in which the norm is posited and the intention of
the agent who posits it. So presumably legal positivists have to choose
between the rock of "textualism" and the hard place of "originalism." Or so
the popular mythology goes.
A preliminary but telling objection to confronting legal positivists with this
Hobson's choice is that it already assumes that the legally valid norms
mentioned in (LP*) must be posited articulately (i.e. in words) and
intentionally (i.e. with a view to positing a norm). But that is by no means the
shared assumption of believers in (LP*). The "command" versions of (LP*)
espoused by Bentham and Austin admittedly did embrace this assumption. But
Hart went to great pains to distance himself from it. He argued (I think
successfully) that in all legal systems at least some valid legal norms are
posited and hence validated by being practiced or used rather than by being
articulated, and that the relevant uses of these norms need not be regarded or
intended as norm-positing acts by the relevant users.39
Yet presumably these
norms often need to be interpreted too. When that is so, what would it mean
to interpret them "using only the resources of the text itself or "according to
original intention"? Neither proposal makes sense. So presumably there are
other proposals for the interpretation of practice-validated norms that do make
37. See e.g. Fish, "Wrong Again," supra, note 10, 309-10. Cf. Dworkin, A Matter of
Principle (Cambridge, Mass.: Harvard University Press, 1986), who kindly observes at 37 that
"not even" legal positivists sign up to this "textualist" view—even though they "seem the most
likely" to do so!
38. See e.g. Michael Freeman, "Positivism and Statutory Construction: An Essay in the
Retrieval of Democracy" in Stephen Guest (ed.), Positivism Today (Aldershot: Dartmouth,
1996), 11 at 21.
39. The Concept of Law, supra, note 3, e.g. 113, 149-150.
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2001 JOHN GARDNER 219
sense. Why not apply these other proposals, whatever they may be, to
articulate and intentional acts of law-making, such as legislation, too? Why
not, for example, interpret all these acts, in their norm-creating aspect, just as
they were interpreted by others at the time when they were performed (which
need neither be a textualist nor an originalist interpretation)? That meets the
condition that the act of positing that legally validates a norm under (LP*)
must also identify the norm that it validates. The norm is identified as the
norm that certain others, observing the acts of positing in question, took those
acts to be creating.
The reason why this won't do regarding legislation and other acts of
intentional law-making, it may be said, is this. To have the power to make law
intentionally—as it is sometimes put, to be an authority—one must surely
have the power intentionally to determine what law one makes, at least up to
a point.40
And that surely requires interpreters to give credence to what one
meant (originalism) or, alternatively, to limit attention to the words one chose
to convey what one meant (textualism). It will not do to give the power to
determine what norm one created entirely to others who observed one's normpositing
act, by making their interpretation authoritative rather than one's
own. But why will this not do? So long as one can work out more or less how
the relevant others will read what one says or does, one can also adapt what
one says or does to anticipate their readings. If one can work out that the
relevant others are perverse types who will always read "cat" to mean "dog,"
one can make the dog-regulating laws one means to make by passing a Cat
Regulation Act. By this feedback route, one has the power intentionally to
determine what law one makes even though the norm for interpreting that law
does not refer to one's intentions (i.e. is not originalist), and gives one's text
a quirky meaning (i.e. is not textualist). All of this depends, to be sure, on the
assumption that one can work out more or less how the relevant others will
read what one said or did. But in a legal system this condition can normally
be met by having (source-based) legal rules of interpretation. These rules will
be used by interpreters (e.g. by judges) and can therefore be relied upon in
advance by legislators and other lawmakers to work out, backwards, how they
should speak or behave in order to be held to have made the law that they are
trying to make.
So the widely different norms of interpretation adopted and practiced in
different legal systems need not differ in the measure of ability they give to
lawmakers intentionally to shape the laws that they make. So long as the local
norms of interpretation can be grasped by the lawmakers (or by those drafting
40. Raz, "Intention in Interpretation" in The Autonomy of Law, supra, note 5,249 at 256-
260.
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220 THE AMERICAN JOURNAL OF JURISPRUDENCE Vol. 46
statutes orjudgments on their behalf), the laws can be intentionally shaped by
anticipating how they will be interpreted by others and drafting them
accordingly. It does not follow, of course, that we should be indifferent as
between different possible norms of interpretation—that we should not care,
for example, whether traditional British strict construction in reading statutes
prevails over the more relaxed American approach. Possibly one of these
approaches makes for all-round better judicial decisions than the other, or
possibly neither is as good as some third approach, or possibly a mixture of
approaches would be best of all, etc. My point is only that this
desideratum—the achievement of all-round better judicial decision—is the
proper basis for selecting (and legally validating) norms of interpretation. In
selecting such norms one need not be inhibited by the need to build in a
special respect for the law-maker's words or the law-maker's intentions
because, thanks to the feedback loop I mentioned, that can largely look after
itself whatever norm one adopts or practices.
I say "largely" because of course there is a proviso. Since legislators and
other lawmakers are no more clairvoyant than the rest of us, they can only
adapt their law-making to norms of interpretation already in use or proposed.
So the considerations just mentioned do have a certain conservative leaning.
Insofar as law-making agents are to be treated as authorities regarding the
norms they made, there is a reason to apply to those norms the interpretative
norms that were knowably applicable to them at the time when they were
made.41
But how significant a constraint is this? One must remember that most
legal norms, even when intentionally made, were not made by just one agent
in one fell swoop. They were made by a succession of legal engagements.
When people ask their lawyer or their law teacher "What does the First
Amendment have to say about this problem?" they don't normally mean to
restrict attention to the norm created by the original agreement on the text
back in 1789. They mean to ask about the law of the First Amendment, which
includes the original 1789 sourcesplus the often conflicting pronouncements,
arguments, and practices of countless judges in First Amendment cases over
the intervening centuries. Since a great deal of this intervening law-making
was itself intentional, the question is not only one of treating the Congress of
1789 as an authority, but also one of treating the Supreme Court of 1926 as an
authority, and indeed as an authority regarding how to treat the Congress of
1789 as an authority, and then of treating the Supreme Court of 1968 as an
authority regarding both the Congress of 1789 and the Supreme Court of 1926,
and regarding the legally proper way to relate them, and so forth. It follows
that the limited conservative implications of the principle of deference to
41. Ibid, 271.
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2001 JOHN GARDNER 221
authority are so limited as to be rarely worthy of any real moral anxiety. They
point to nothing like "originalism" or "textualism" conceived as interpretative
doctrines that would freeze the First Amendment or the Civil Rights Act at the
time of enactment, or limit the range of background context that could bear
upon its meaning.
In all of this I have been granting another very common assumption that
supporters of (LP*) need not, and often do not, share. I have been granting that
the interpretation of legal norms belongs exclusively to the law-applying stage
of legal reasoning, as opposed to the law-making stage. Recall that we started
with the question of how (LP*) would have us identify the norms that are
validated according to source-based criteria, and we took this to be where the
question of interpretation fits in. But that is already a mistake. Interpretative
activity straddles the distinction between the identification of existing legal
norms and the further use of them to make new legal norms. To the extent that
a judge can determine what the First Amendment means by relying
exclusively on the relevant source-based norms (i.e. by relying on the text of
the First Amendment together with judicial interpretations of it and judicial
interpretations of those interpretations and applicable laws of precedent and
interpretation), that judge is merely identifying the First Amendment in
interpreting it. But to the extent that the judge is left with conflicts among or
indeterminacies in the applicable source-based norms—including those of
precedent and interpretation—the process of legal interpretation necessarily
takes him beyond the law. The assembled ranks of source-based norms took
the judge so far, but at a certain point they left the meaning of the First
Amendment unclear, to be settled on the merits. At that point, settling the
meaning of the First Amendment means giving it a meaning. It necessarily
goes beyond norm-application to norm-alteration.
Remember our example of legal reasoning about sex discrimination under
the Civil Rights Act? There our imaginary judge started with (1) an
interpretation of the Act according to which it gives people a legal right not
to be discriminated against on grounds of sex in employment. From that
starting point, in combination with a moral premise, our imaginaryjudge ruled
(and thereby made it the law) that (3) a woman has a legal right not to be
denied ajob because she is pregnant. Was this in turn an interpretation of (1)?
Maybe. Maybe we forgot to mention that, according to our imaginary judge,
(3A) a woman has a legal right under the Civil Rights Act not to be denied a
job because she is pregnant. Thatjudges talk like this has been understood by
Dworkin and many others to suggest that all they are doing is applying the
norms in the Civil Rights Act when they arrive at conclusion (3A).42
But it
42. See e.g. Dworkin, Law's Empire, supra, note 6, at 6.
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222 THE AMERICAN JOURNAL OF JURISPRUDENCE Vol. 46
does not suggest that at all. It suggests that they are interpreting the norms in
the Civil Rights Act when they arrive at (3A), and that could mean either
applying them or developing them. Some acts of interpretation are concerned
with settling the law in the sense of identifying what it already says, but other
acts of interpretation, like that captured in (3A), are concerned with settling
the law in the sense of getting it to say something new.43
According to (LP*),
the difference between the two cases is the difference between wholly sourcebased
modes of interpretation (looking to existing conventions of
interpretation, or to some person's or constituency's actual understanding,
etc.) and partly or wholly merits-based modes of interpretation (looking to
what would make the norm morally defensible, or more fit for its intended
purpose, etc.). Predictably—and much to the frustration of lawyers and law
teachers all over the world—(LP*) has nothing at all to say on the subject of
what the balance ought to be between these two families of interpretative
considerations, for, here as elsewhere, (LP*) has nothing to say on the subject
of where law-making should end and law-applying should begin. It merely
says that whatever law is applied also has to be made, for unless it is made
(either beforehand or in the process of application) there is nothing valid to
apply. Interpreting it, however, can be making it and/or applying it.44
F. The "no necessary connection" thesis
Finally, I come the jurisprudence student's favorite myth about legal
positivism. Apparently legal positivists believe:
(NNC) there is no necessary connection between law and morality.
43. As Bentham explains robustly in Of Laws in General, H. L. A. Hart (ed.) (London:
Athlone Press, 1970), 162ff.
44. Some student resistance to this picture seems to come of the following line of thought:
(i) one must identify what norm one is interested in before one can ask about its validity
according to (LP*), but (ii) one cannot identify what norm one is interested in without first
eradicating the indeterminacies and other gaps in its application that (LP*) makes inevitable,
and hence without completing its interpretation. But this argument works only if there can be
no such thing as an identifiable norm with built-in indeterminacies. If one says, as all legal
positivists who have thought about the matter must say, that one is interested in the validity of
norms complete with their indeterminacies then one assumes the opposite. There is of course
a genuine dispute to be had about just how indeterminate a norm can be before it stops being
a norm at all. But clearly it does not stop being a norm merely because there are some actions,
the normative status of which it leaves unclear. This is the respect in which it is misleading
(although not false) to frame (LP*) as a thesis about the identification of legal norms, rather than
their validity.
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2001 JOHN GARDNER 223
This thesis is absurd and no legal philosopher of note has ever endorsed it
as it stands.45
After all, there is a necessary connection between law and
morality if law and morality are necessarily alike in any way. And of course
they are. If nothing else, they are necessarily alike in both necessarily
comprising some valid norms. But there are many other necessary connections
between law and morality on top of this rather insubstantial one, and legal
positivists have often taken great pains to assert them. Hobbes, Bentham,
Austin, Kelsen, Hart, Raz, and Coleman all rely on at least some more
substantial necessary connections between law and morality in explaining
various aspects of the nature of law (although they do not all rely on the same
ones).
So how arises the myth that, as the leading legal positivists, they must all
deny all such connections? It seems to arise from Hart's early work. In a
much-cited footnote, Hart mistook Bentham's and Austin's ringing
endorsements of (LP*)—notably Austin's remark that "the existence of law
is one thing; its merit or demerit is another"—for endorsements of (NNC).
Then by hint and emphasis he seemed to endorse (NNC) himself.46
But a few
pages later he admitted that he did not really endorse it. For even in this early
work he advanced the proposal (mentioned under heading (a) above) that
every law necessarily exhibits a redeeming moral merit, a dash ofjustice that
comes of the mere fact that a law is a general norm that would have like cases
treated alike.47
For Hart this built-in dash of moral merit in every law clearly
forges a necessary connection between law and morality. So his apparent
endorsements of (NNC) must be read as bungled preliminary attempts to
formulate and defend (LP*), which, like Bentham and Austin, he really did
endorse.
How does (NNC) differ from (LP*)? In two respects (LP*) is the broader
of the two propositions and in two respects the narrower. Let me begin by
explaining how it is narrower. First, (LP*) is narrower than (NNC) in that it
is concerned only with the conditions of legal validity. Studying the nature of
law involves—as my remarks over that last few pages have amply
demonstrated—studying much more than the conditions of legal validity. That
some people mistake an account of the conditions of legal validity for an
account of the whole nature of law (and hence mistake legal positivism's
distinctive thesis about law for a comprehensive theory o/law) may come of
the fact that one can question the validity of a certain putatively valid law by
45. Although it is helpfully billed as "the quintessence of legal positivism" in student
textbook Howard Davies and David Holdcroft, Jurisprudence: Texts and Commentary (London:
Butterworths, 1991), 3.
46. "Positivism and the Separation of Law and Morals," supra, note 13, 57-8.
47. Ibid, 81. See text at note 13, supra.
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224 THE AMERICAN JOURNAL OF JURISPRUDENCE Vol. 46
asking "Is this really a law?" and that question in turn is easily confused with
the much more abstract (and pretentious) question "What is law?"48
But, in
fact, once one has tackled the question of whether a certain law is valid there
remain many relatively independent questions to address concerning its
meaning, its fidelity to law's purposes, its role in sound legal reasoning, its
legal effects, and its social functions, to name but a few. To study the nature
of law one needs to turn one's mind to the philosophical aspects of these
further questions too. To these further questions there is no distinctively "legal
positivist" answer, because legal positivism is a thesis only about the
conditions of legal validity.
Proposition (LP*) narrows (NNC) further in that it restricts its attention to
one specific connection that is sometimes thought to hold between a law's
validity and its moral merits, namely a relationship in which the former
depends upon the latter. This is a one-way relationship. Legal positivists deny
that laws are valid because of their moral merits. But they do not deny the
converse proposition that laws might be morally meritorious because of their
validity. As we saw, some legal positivists—Hobbes, Bentham, and Hart the
most prominent among them—have regarded valid laws as necessarily
endowed with some moral valuejust in virtue of being valid laws, never mind
how morally odious in other respects. (NNC) rules this view out. On the other
hand, (LP*) is compatible with it but does not require it.
At the same time, (LP*) is broader than (NNC) in that it is concerned not
only with the connection between a law's validity and its moral merits, but
with the connection between a law's validity and any of its merits. Legal
positivists line up equally against views according to which the validity of a
law depends upon, for example, its economic or aesthetic merits.
Moreover—as we saw under heading (B) above—legal positivists must also
reject views according to which the validity of a law depends upon its merits
purely as a means, i.e. its fitness for its purpose (be that purpose meritorious
or unmeritorious). Thus, as we saw, the thesis that insufficiently clear or
insufficiently certain norms lack validity is a classic anri-positivist thesis.
Finally, unlike (NNC), (LP*) does not limit its embargo to supposedly
necessary connections between a law's validity and its merits, i.e. to those that
are supposed to exist by law's very nature. At any rate, it does not do so as I
have expressed it. But here we have, you will recall, the most important point
at which legal positivists differ in their interpretation of (LP*), so I had best
say that in this respect (LP*) is only arguably broader than (NNC). According
to the so-called "soft" legal positivists, there may be laws, the validity of
48. This confusion is another one that is courted in Dworkin's opaque question "what are
the grounds of law?": Law's Empire, supra, note 6, at 4.
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2001 JOHN GARDNER 225
which depends on their merits, but only if the "merits" test in question is set
by some other law, the validity of which does not depend on its merits. Thus,
according to soft legal positivists, there is no law that depends for its validity
on its meritsjust in virtue of the nature of law, i.e. necessarily. However, there
can be laws that depend for their validity on their merits in particular legal
systems because other laws of those legal systems so dictate, i.e. contingently.
Hart endorsed this view. But personally, as I mentioned near the beginning,
I side with those "hard" legal positivists who reject it. In my view, no law
depends for its validity on its merits full stop, whether owing to the very
nature of law (necessarily) or merely owing to what other laws say
(contingently). To capture the hard as well as the soft legal positivist
position—quite apart from its other dimensions of over- and
underinclusiveness—(NNC) should not discriminate between necessary and
contingent connections.
IV. LEGAL POSITIVISM FOR NATURAL LAWYERS
The myths I have been concerned with here are myths often peddled about
legal positivism as an intellectual tradition. My first aim has been to
counteract the common but philosophically disreputable tendency to find
leading writers in that tradition guilty by association. Since they are legal
positivists, the thinking goes, they must espouse such-and-such a silly "legal
positivist" thesis. But by and large, as we have seen, the leading figures found
guilty by this method do not espouse the silly theses with which they are thus
associated. What they do espouse in common is thesis (LP*), which is often
misrepresented by critics as some quite different and much sillier thesis, or at
least held out as having some much sillier theses among its implications. That
is why my second aim here, and perhaps the philosophically more important
of the two, has been to identify what is and what is not an implication of
(LP*). The main tendency we encountered—running through several of our
myths—was a tendency to assume that (LP*) must have implications of its
own for what at least some people (e.g. judges, governments) should do. In
fact, it has no such implications. It tells us how the legal validity of any norm
in any legal system falls to be determined—namely, by its sources—but leaves
open whether and when and why any of us should ever bother to have or to
follow any valid legal norms. To show that valid legal norms are ever worth
having or following, and in what way, always requires a separate argument,
regarding which (LP*) is in itself entirely agnostic.
Our friends in the natural law tradition tend to balk at the idea that we can
study the validity of legal norms in the agnostic way envisaged by (LP*), i.e.
without deciding in advance whether (at least some) valid legal norms are
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going to be worth having or following. It is not that natural lawyers cannot see
the possibility of, or interest in, studying the validity-conditions of certain
norms in the practically noncommittal sense of "validity." Sure, the rules of
a game can be valid qua rules of the game without having any significance for
what anyone should do except to the extent that they fancy playing the game.
But law is not a game. It purports to bind us morally, i.e. in a way that binds
even those of us who do not fancy playing. So why not go straight to the
question of whether it succeeds in doing so? Why begin by asking about its
legal validity in the thin, practically noncommittal sense found in (LP*), and
only then go on to ask whether it is valid law in the thicker sense of being
morally binding on at least some people? According to this critique, the
problem with legal positivism is not that it has silly answers of the kind
peddled in its name by the myth-spinners. The problem, rather, is that it has
a distracting and prevaricating question, which is the question of what
determines legal validity in the thin, practically noncommittal sense of "legal
validity."
There are indeed two inflexions of "legally valid," and they correspond to
two senses of "legal." In most European languages other than English there
are two words for law corresponding conveniently to these two senses of
"legal": lex and ius, Gesetz and Recht, loi and droit, and so on. Legal
positivists need not deny that there is a moralized notion of law captured in
the second term in each of these pairs.49
They need not deny that in some
contexts "legality" accordingly names a moral value, such that in the second
moralized sense of "valid law," laws may be more or less valid depending on
the extent to which they exhibit legality, and hence depending on their merits.
Nor need they deny that one must capture this moral value of legality,
whatever it is, in order to tell the whole story of law's nature. As in any other
field of human endeavor, understanding the nature of the endeavor in full
admittedly means having an ability to tell success in the endeavor from failure.
Perhaps law does have a special way of succeeding, as these European
languages seem to suggest. Maybe the ideal of the rule of law, for example,
does represent a moral ideal distinctively for law, such that one does not fully
understand the nature of law until one understands that at least part of its
success, if it were ever successful, would lie in conformity to this ideal. Or
maybe the relevant ideal of legality is something quite different. But picking
out the relevant ideal(s) is irrelevant to the truth or the importance of (LP*).
For (LP*) tries to answer a logically prior question. What is this field of
human endeavor, to which the natural lawyer's proposed criteria of success
and failure apply? What makes something a candidate for being accounted a
49. Hart explicitly pointed it out in The Concept of Law, supra, note 3, at 203-7.
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2001 JOHN GARDNER 227
success or failure in these terms? What is this lex, such that it ought to be iusl
Legal positivism naturally supplies only part of the answer. To be exact, legal
positivism explains what it takes for a law to be legally valid in the thin lex
sense, such that the question arises of whether it is also legally valid in the
thicker ius sense, i.e. morally binding qua law. In doing so legal positivism
admittedly does not distinguish law from a game, which is also made up of
posited norms. To distinguish law from a game one must add, among other
things, that law, unlike a game, purports to bind us morally. That has
implications, no doubt, for what counts as successful law, and hence for what
one might think of as law's central case.50
But this does not detract from the
truth or the importance of (LP*), which is not a thesis about law's central case
but about the validity-conditions for all legal norms, be they central (morally
successful) or peripheral (morally failed) examples.
50. The most important study of which—taking (LP*) for granted although remaining
studiously unexcited by it—is John Finnis's Natural Law and Natural Rights (Oxford:
Clarendon Press, 1981).
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