Critiquing an entire school of thought is an inherently dangerous undertaking, and this certainly holds true in the case of legal positivism. One of the foremost reasons for this difficulty is that legal positivists’ views differ extensively, such that the distance between some classical and contemporary positivists (compare John Austin and Joseph Raz) is arguably greater than the distance between some contemporary positivists and contemporary natural law theorists (compare Raz and John Finnis).
Nonetheless, it is the central positivist thesis, articulated by Austin in 1832 as: “[t]he existence of law is one thing; its merit and demerit another,” with which I wish to take issue. Furthermore, writing this is probably the only way I’ll be able to find the motivation to do anything even remotely close to studying at this moment in time. So here goes.
To be fair to positivists, it would be disingenuous and inaccurate to claim that positivism holds that the question of law’s merits is insignificant or unanswerable. Positivism is really a theory about when it can be said that a legal system exists. Therein lies the problem. The philosophy of law should aim for loftier heights.
If the positivist thesis is correct, the question of whether a law can properly be described as just or unjust does not go to the heart of whether or not it should be recognised as law. This move allows for the adoption of legal theories, such as those defined by the concepts of coercion or authority, that bear no relation whatsoever to the question of the bases upon which human interaction ought to be founded.
Given that what we call ‘law’ is essentially a question of definition, and is in some senses purely semantic, to adopt the view of law underlying the positivist claim is willingly to accept the existence of at least some immorality and injustice in at least some corners of ‘the law’. If the only way to understand so-called ‘law’ is through the lens of coercion, for example, then perhaps what we call ‘law’ is not worth understanding in the first place.
It may be true that the vast majority of so-called ‘legal systems’ do not meet strict natural law standards. It may be true that, as an exercise in description, positivism better allows us to understand the so-called legal systems that do, in fact, exist in our present reality. But to attempt to reason to any sort of moral obligation to obey the law from this starting point must inevitably resort to some form of coercion or some sorry compromise.
Significantly, if law does not derive its moral goodness from actual moral goodness, but we remain committed to a belief that law’s value is moral, it is for positivists to explain what about the law itself it is that makes it good. The seemingly best basis for such a claim, that relating to law’s ability to produce social order, casts a very uninspiring view of humanity. If positivists are correct, either law has no real inherent value, or it is only good because human beings are not.
Classical positivism’s empiricist roots are surely at least part of the problem. Particularly, the clear influence of David Hume in the positivist preoccupation with understanding what is reveals its underlying incompatibility with the kind of aspirational philosophy that I believe is of most value to real people. Although it would be wrong to cast all positivists with a non-cognitivist brush, it’s difficult to understand why anyone who seriously believed in the pursuit of moral truth could be satisfied with a theory that treats as subordinate the question of what ought to be.
Whether or not it is the case that moral judgments are capable of being objectively true (i.e. that there are moral truths) is almost secondary. There is value enough in the pursuit of moral truth to justify belief in the cognitivist thesis. Furthermore, there is value in rejecting so-called legal systems that do not strive to seek moral truth according to some defined set of moral principles (even though reasonable people in this day and age may disagree on what those principles ought to be).
If the most biting criticism of my view is that it is too naive or too optimistic, then that is a criticism I am more than happy to wear. Ultimately, I want something more inspiring from my philosophy.