JOSÉ DE SOUSA E BRITO
How is Legal Positivism Self-effacing in the Rule of Law State
I –LAW AND MORALS AS SPACES OF ARGUMENT
Law, fact, morals: are they independent spaces? If not, how do they
relate to each other? Let us assume that both law and morals are spaces of
argument. The law is used to justify an act or a judgement. An individual or a
judicial act or an act of parliament or the decision of a court are legal in so far
as they have a special kind of foundation, as there is an argument of a sort that
supports them. If you find a way of characterizing such arguments, you are
thereby defining a space of argument that is equivalent with the space of the
law. Moral acts and moral judgements can similarly be justified by argument;
otherwise, they cannot be said moral indeed. Moral arguments also constitute
in this way a moral space. By moral, I mean ethical: I am not speaking here of
social morals but of philosophical ethics.
If we examine the arguments which are generally considered as correct
in the practice of law and if we compare them with those which are generally
considered as correct in ethical discussion, we will notice that the first ones
show limits which do not exist in ethics.
Consequently, there are ethical arguments that would be allowed in an
ethical discussion but which are not permitted in the law. When I am talking
here of ethics and ethical arguments I am using the words in the broadest
sense, bringing the realm of ethics to coincide with that of practical reasoning
in Aristotle, which includes the justification of actions in view of all possible
ends. The realm of ethics coincides with that of reasons of action. This does
not imply that all reasons of action are ethical, but only that all can be
considered by ethics. It is equally not implied that the task of justifying action
in view of all possible ends be decidable, or that it is ethically justified to
make any actions depend on such a decision. Any other limits of the domain
of ethics could finally fail to achieve the reciprocal delimitation of ethical and
legal reasons.
Legal argument is from the beginning limited by the obligation to refer
to the sources of law, i.e., to statute, custom and jurisprudence. A legally
correct argument must be justified by the entire body of the sources of law.
Every sentence of such sources that is logically related in a positive manner
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with the question to decide must be integrated in the whole argument on
which the legal decision is based. Such integration however must recognise
the authority and consequent hierarchy of the sources. The sentences of the
sources have in legal argument not only the logical priority that premises have
in relation with the conclusion. The sources of law have among themselves
hierarchical relations, so that in case of contradiction prevail those who are
superior in hierarchy: the constitution is above acts of Parliament, these are
above enactments of Government, etc. Any sentences of the sources of law
have again an authority or force which is absent from any other sentences
which are part of the same argument. Such an authority gives them a
hermeneutical priority: one has to start from them in the argument and to
demonstrate step by step that the logical system that was constructed on their
basis is indeed compatible with them. Hermeneutical priority is not identical
with logical priority: the sentences of the sources may not be principles or
axioms of the logical system that permits to solve a case, they may have been
used merely as starting points to discover a logical system by which the
decision is justified. A hermeneutical priority is a case of what Rawls
designates as an "order of support" and which he opposes to an order of
deduction.1 The reasons that base some legal conception depend on the force
of such reasons and not on the place they have in a set of reasoning.
Other limits to ethics derive from the fact that the law adopts
procedures of decision making which limit the number of sentences admitted
in legal argument before the court or in Parliament debates, for instance.
So in the legislative procedure of legislative bodies - other peculiarities
characterise the production of rules by Government or by local authorities the initiation of the procedure is reserved to some persons - usually members
of parliament, in Portugal also parliamentary groups, government, regional
assemblies -, which can intervene in the debates for a limited time according
to the dimension of the respective parliamentary groups. In the judicial
procedures, a complex ruling limits equally the intervention to those who have
a special interest, their lawyers and the judge. Some other persons, as
witnesses and experts may also intervene about certain points. The
interventions follow a certain order, have time limits and are confined to
certain phases of the procedure, so that the occasion for them may be lost, but
in certain cases the whole may be repeated by means of appeal, eventually
with other persons, other judges, other prosecutors, etc., These are also rules
1
Op.cit., p.242.
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about the obligatory or the prohibited content of some interventions, as when
the discussion is restricted to points of law or when the appeal depends on the
invocation of certain grounds or articles of law. Other rules regulate the
evidence, which is criminal cases must be produced in the audience and
legally obtained, etc.
If there are differences, there are no less coincidences between legal
and ethical reasons. Usually not occasional ones, as if it would simply happen
that some rules or principles have the same content. The coincidence results
often historically from the importation of whole bodies of ethical doctrine, like
the doctrine of human rights, and many others in criminal law: of justification
and excuse, of duress and error, of the ends of punishment.
Ethics may be inserted in the law mainly through the following means.
There are, at first, incorporating norms of the law referring to ethics. Some
legal rules order that some questions should be answered by ethics, in the
name of bona fides, of natural law or of the principles that the judge would
create if he were the legislator. Besides explicit incorporations, there are
implicit ones, using fundamental ethical concepts, like dignity of the person,
or culpability. So develops a system of deduction of ethical conclusions - e. g.
the system of human rights.
II – THE CONSTITUTIVE RULES OF THE LAW
Let us now pass from the ways in which legal argument is related to
ethical argument to the relations between legal argument and statements about
facts. Legal positivism has been telling us that positive law exists, that
propositions about positive law are true or false according to the facts, and that
the true ones are the basis of a descriptive science of law. It is a main thesis of
legal positivism that the law has social sources2, in the sense that in order to
say that a particular law exist, i. e., is valid, or that a legal system exists, i. e.,
is valid, all you need is to ascertain certain social facts. Shall we say now that
legal positivism derives "ought" from "is", and so violates Hume’s law, which
prohibits such a move? Let us see more closely how positivists deal with our
problem. I shall concentrate on Bentham and Kelsen, who hold the most
distinctive positions about the consequences of Hume's Law for legal theory.
2
So H .L .A. Hart, “Legal Positivism”, International Encyclopaedia of the Social Sciences
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Bentham was certainly eager to point out the facts that lie behind the
law. These were to him the truth of the law. They allow us to reduce the
sentences we find in the law and about the law to meaningful factual
propositions, or to repudiate the irreducible sentences as meaningless. The
relevant facts are the commands of the legislator, the decisions, i.e., the
individual commands of judges, the sanctions of punishment and reward, the
acts of obedience to the sovereign and the corresponding habit of the people.
In the Fragment on Government Bentham gives us two alternative analyses of
legal "ought" sentences. He says one time that an action is a point of duty (or
obligation) if it is the subject of a command of the legislator (or of a quasicommand of the common law), and another time that an action is a point of
duty if is probably followed by punishment. A rational reconstruction of
Bentham's thought has to accommodate these definitions with further
developments: that namely there are laws backed by rewards and laws without
political sanction, i.e., pain or pleasure at the hands of a political superior,
such as the laws limiting the supreme powers within a state. However, if the
probability of a specific sanction is not necessary to the existence of a legal
obligation, a system of sanctions backed by force and reinforced by obedience
is needed to explain the superiority of the sovereign implied in the notion of a
command.3 It may be disputed if Bentham reduces after all the law to
propositions about the will of the legislator or of the judge, as he was able to
notice that "the use of a mandate is determined by the nature of the act or
mode of conduct which is the object of it: and where can be no difference in
the conduct of the subject it is no purpose to mark out any difference in the
mind of the legislator".4 Nevertheless, Bentham did not see the full
significance of his own words, as he continued apparently attached to a theory
of language which considered commands to be complex propositions of the
type: "it is the will of s (a superior person), that x does A." He expressively
equates "to express something" and "to assert something about the mind of the
speaker".5 He remains therefore a psychologist and misses the point of Hume's
law. However, his sharp distinction between what the law is and what the law
ought to be is untouched: the facts on which positive law depends are clearly
distinct from the prospective pleasure and pains which should allow him to
calculate the contribution of the best possible law to general happiness. The
3
Cf. my article: "Relire Bentham. A propos de l'edition de 'Of Laws in General' de
Bentham par Hart", Archives de Philosophie du Droit, 17 (1972), pp. 465 ff.
4
Of Laws in General (C.W., ed. Hart), p. 98.
5
An Introduction to the Principles of Morals and Legislation (C W., ed. Burns, Hart), p.
299.
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argument does not rely upon a correct view of the nature of the relation
between the law and the facts which determine its content.
Kelsen was the first legal positivist to retire all the consequences of
Hume's law. That is why he does not use the is-ought distinction to separate
law from social morality or from natural law. All three are normative
systems, systems of "ought" sentences, which are only to be differentiated
because they have a different source of validity, a different basic norm. The isought distinction marks in Kelsen the difference between such normative
systems and causal laws and as a consequence, between the theory of law and
both natural science and sociology of law. In his posthumous book on the
General Theory of Norms Kelsen, whose thought was originally not directly
influenced by Hume, but certainly influenced by Kant, is happy to notice his
full accordance with Hume's views. He says: "in respect to the relation
between "is" and "ought" is Hume more consequent than Kant. For him there
is no practical reason".6
Kelsen would not have been a positivist if he had not made the content
of the law depend on facts. He does: "in being so established and in...the
efficacy as a condition of validity lies the positive character of morals and of
law."7 These are the two matters of fact ("Seins-Tatsachen"), which are
conditions of the validity of a norm. The efficacy consists in that the norm is
in most cases followed and if not followed is in most cases applied, i.e., in
most cases either one does what the law intends one to do or the sanction for
non-compliance is applied. But Kelsen also says that the validity of each
norm depends on the efficacy of all other norms which constitute the
normative system.8 I take these conditions together to give an alternative
formulation for Kelsen's basic norm: if the norms which have been established
in a normative system are efficacious, then each norm of the system is valid.
As every norm established in a certain legal system derives its validity from
the first historical constitution, the basic norm also reads: If the norms
originated by the first historical constitution are efficacious, the first historical
constitution is valid. Would Kelsen have understood what we are now able to
understand in Hume, he would have said, I think, that the basic norm is the
meaning rule that explains the meaning of the "ought" sentences of an
institutional fact like law or social morality. The institutional difference
6
Op. cit., p. 68.
Op. cit., p. 114.
8
Reine Rechtslehre, 2d. ed., Wien, Deuticke, 1960, p. 218; "Professor Stone and the Pure
Theory of Law." Stanford Law Review, 17 (1965), p. 1139.
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between law and social morality is explained by the different kinds of
sanctions from which the efficacy also depends: coercive acts or social
approval and disapproval.
This could be and should be Kelsen but it is not. Kelsen says that the
meaning of "ought" (and of "is") cannot be explained further. So he is not able
to see how the Grundnorm is his own definition of law. As a positivist,
however, he cannot dispense with it. So he finishes in his last writings by
saying that it is a feigned norm, a norm of an authority which does not exist, a
self-contradiction: "the admission of a basic norm - e.g. the basic norm of a
religious moral system: 'one ought to obey God's commandments' or the basic
norm of a legal system: 'one ought to do as the first historical constitution
says'- contradicts not only reality, because there is no such norm as the
meaning of a real act of the will, but it is self-contradictory, because it
empowers a highest moral or legal authority, and so originates in an authority
which is above even the last one -however only feigned."9
In this way, Kelsen not only finishes saying absurdities, but he forgets
his own conditions of validity, forgetting positivism for a while. He cannot
explain how the same sentence "A ought to marry B" (to use one of his
examples) means different norms as the consequence of a promise, as a moral
conclusion and as a legal obligation. Finally, he does not see the different
relation to facts that holds for the law and other institutional facts on one hand,
and the natural law or philosophical morals or ethics on the other hand.
Kelsen lacks an acceptable theory of meaning. So he could not conceive
the real nature of the Grundnorm upon which he constructed his whole
system. He has rightly seen that the validity of the norms of the legal system
depends on the Grundnorm but was unable to identify the nature of the later.
Such a nature is that of the constitutive rules of the legal system.
Constitutive rules put into being what they are about, whereas
regulative rules guide conduct so that it puts into being what they are about. I
am following a line of thought that was initiated by Wittgenstein, who showed
that the rules constitute the game. The finest groundwork after Wittgenstein
was done by John L. Austin and Paul Grice in their William James lectures in
Harvard10. Such rules do not allow a passing from an is to an ought against
9
10
Allgemeine Theorie der Normen, pp. 206-7.
John L. Austin, How To Do Things With Words,1962.
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Hume's law, that is, as a logical deduction of ought from is. The facts that
constitute the law do not imply logically the law: they are just the condition
for the validity of the law: since they exist, the norms exist, i.e., ought to be
applied. But against Kelsen the validity depends on facts according to the
recognition by the judges and other law applying agents of the constitutive
rules of law, not according to the external efficacy of the rules (or only
partially according to efficacy, because of a corresponding content of the
recognition).
Also against Kelsen, the validity depends not only on facts, including
efficacy, but also on correctness, that is, on the morality or rationality of the
law. How much? That depends on recognition, which allows for the complex
pattern of relations between legal and moral arguments that we have described
earlier. The constitutive rules of law evolved from a system of recognised
subjection – arguably always limited by some kind of “natural law” - to a
system of recognised rationality. Therefore, the definition of law is also not
fixed but evolving with the constitutive rules that define what is law. In a rule
of law state the validity of a legal norm not only depends on such facts as the
social facts of its creation according to the legal sources and also the facts of
its efficacy – without which it is revoked by derogatory custom – and of the
efficacy of the whole legal system, but depends on its content as well. It
depends certainly on the content of the norms superior in hierarchy, since it
has to conform to them. It depends however equally on the rationality of its
content and therefore on its conformity with ethics or at least with a minimal
ethical standard. It is so because of the because of the constitutive rules that
are recognized in the legal system. We have seen that the law incorporates
ethical concepts as “human dignity” and “culpability”, which have enormous
consequences that are integrated in systems of legal doctrine such as the
theory of human rights or the general part of criminal law. These systems
aspire to a rational or ethical foundation and are developed or criticised
through ethical reasoning. When positive law recognizes legal validity to
criteria that are discovered by reason, recognition itself is suspended as a
criterion for validity. In the so created sphere of rationality the rules and
principles of ethical reason shall eventually contradict and then prevail over
positive law. They are logically and normatively superior, so that even
constitutional rules may become unconstitutional. Therefore, recognition selfeffaces partially in the rule of law state. Since legal positivism is based on
recognition, it has equally to suspend itself there. It does not contradict itself
in a self-defeating manner, it is simply self-effacing in a coherent way.
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