CHAPTER FIVE: Is Legal Philosophy Normative?
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Chapter five Is Legal Philosophy Normative? H.L.A. Hart famously characterized his theory about the nature of law as “descriptive and morally neutral.”1 Hart, like previous legal positivists such as John Austin and Hans Kelsen,2 thought that a philosophical account of the nature of law should strive to avoid moralizing of any kind, and should aim at an explanation of the nature of law that is quite general in its application—one that explains what law, in general, is. Clearly there are at least two assumptions here. First, it is assumed that, in spite of variations between different legal systems across time and place, law is a fairly universal phenomenon in human societies, and that it has certain features that are essential or characteristic of law, as such. Second, it is assumed that we can identify and articulate those essential features of law without forming any moral or political judgment about the merits of law or any particular legal institution . Understanding what law is, is one thing; judging its merits is quite another. Many contemporary legal philosophers have come to doubt this theoretical aspiration. They claim that a theory about the nature of law, such as Hart’s legal positivism, cannot be detached from moral and political views about law’s merits. We cannot understand what law is, they claim, without relying on some views about what makes law good and worthy of our appreciation . The clearest example of such a methodological view is Ronald Dworkin’s recent interpretative theory of law. Dworkin 1  This chapter is based on my article “Legal Positivism: Still Descriptive and Morally Neutral,” 683, and appears here in a revised form. 2  Although not Bentham. As Gerald Postema demonstrated convincingly, Bentham did not share this view. See his Bentham and the Common Law Tradition. Chapter Five 110 quite explicitly presents his own theory of law as a moral-political theory. As he made clear in Law’s Empire, his assumption is that the main moral-political question about law is the question about the legitimacy of coercion: What is it that would justify the use of collective force to enforce political decisions of certain kinds? The justification for the use of collective force is the main moral question that underlies, according to Dworkin, theories about the nature of law. In one way or another they aim to provide an account of law, an interpretation of our practices, which would answer this moral-political question. Other critics of Hart are not necessarily committed to Dworkin’s view about the main moral question at issue, but they share Dworkin’s general methodological point. Even Hart’s legal positivism, they claim, is, ultimately, a normative theory because it can only be defended on normative, moral-political grounds. This methodological challenge to legal positivism forms the topic of this chapter. I will argue that Hart was quite right, and that it is both possible and theoretically desirable to detach a philosophical account of the nature of law from moral and political views about law’s merit. Normative Legal Positivism The idea that legal positivism is not detachable from its underlying moral concerns came to be called “normative legal positivism .” There are, however, at least five possible views about the relations between normative claims and legal positivism. Not all of them are necessarily opposed to the thesis I wish to defend. In order to give a basic account of these five views, let me assume that there is some core descriptive content of legal positivism , and let me stipulate that P stands for this core descriptive content, whatever it is. Accordingly, here are the five positions I have in mind: (1)  ItoughttobethatP(orsomethingroughlycoextensivewith P). To the extent that ought implies can, such a view would also be committed to the thesis that P is a real possibility—that it can actually be materialized, at least to some significant extent. But Is Legal Philosophy Normative? 111 the main focus of this version of normative positivism is on the moral-political domain. It argues that legal positivism is a good thing, that it ought to be materialized in a free and democratic society, for instance, because it is a practice of law that best promotes the goods favored by such a theory. I take it that this is basically the view propounded by Tom Campbell3 and, following Campbell, I will call it ethical positivism. (2)  It is the case that P, and it is morally-politically good if it...