Professional Documents
Culture Documents
1986 | P. Soper
Aggy
He critiques the arguments of both positivists and naturalists to push his claim that choosing a
particular legal theory will not affect “morality”.
Another problem is that whether positivism or natural law is applied, the claims of officials within
a society will also not change. Even positivists who deny any necessary connection between
law and morality are not prevented from claiming that their legal order is in fact a moral one.
Law will always be thought as virtuous. A lawbreaker, even if conscientious, will be stigmatized
as a moral wrongdoer.
MacCormick’s claim may be an educational one which purports citizens to become Gandhis and
not Eichmanns, which in essence is to teach the positivist view from the beginning: instilling that
no moral tests are part of the criteria for law and urging citizens to develop for themselves the
capacity of sifting formal law through moral filters.
The question is how one’s view about the conceptual distinction between law and morality can
have any bearing on this educational goal.
o If we succeed in making citizens conscientious, it is not because of the legal theory. It is
because of the arguments about why individual autonomy and moral reflection are
inescapable and the judgments of others always potentially fallible.
o A good positivist knows that there is no necessary connection between law and morality.
But such knowledge does not mean that he knows what morality is or that he even cares
about finding out.
o Legal theory, whether Positivism or Natural Law, cannot ensure conscientiousness.
In a naturalist view, laws are considered moral because otherwise they could not be claimed to
be laws. A conscientious person will of course not take this moral endorsement at face value.
But often, people are somewhere between the extremes that are Gandhi and Eichmann. This
“moral excuse” may be exactly what they need to defer their own judgment and obey the law.
Example through two hypothetical SC decisions:
o Decision 1: Court sustains the state’s action on the basis of interpreting the existing
statutes, but explicitly disavows any opinion on morality.
o Decision 2: Court sustains the action but also explicitly indicates that because of the
due process clause, the statute passes minimum requirements of fairness, and thus, is
not too immoral.
o People will be more inclined to deter from making their own evaluation with the second
decision.
o It would seem that if conscientiousness is our goal, then the goal may be achieved
sooner by removing moral filters as tests for deciding what the law is.
Soper: But none of these seems to be a consequence of the particular legal regime. In the first
decision, the Legislature may just pass on the moral merits that the Court did not do. It is true
that people will more likely defer to the judgment of the Court, than that of the Legislature. But
this is not because of the legal theory adopted but because the Courts enjoy sufficient respect
and prestige to give moral judgments.
Fuller’s charge against positivism focuses on the connection between legal theory and the
ability of those bent on doing evil within a legal system to achieve their ends—The Evil Judge.
o Fuller argues that positivism encourages buck-passing in which the Court interprets and
enforces a law but avoids moral responsibility. It hides behind the maxim of “law is law”.
Easy to avoid having to justify its decisions or its evils.
But Soper says that such buck-passing scenario is not a consequence of legal
positivism, but of a particular societal arrangement for enacting and enforcing
laws.
o Fuller’s critical assumption is that in a natural law theory, such “hiding” and “avoiding to
justify” will not be allowed to happen.
Soper: But all that a natural law needs is that the regime endorse a view that if
official directives are too unjust, they are not law. Nothing in this claim requires
one to institutionalize the process of testing the justice of the law in a forum of
the sort that Fuller has in mind.
o If a regime thinks that the empirical claim about evil being constrained by the need to
justify is plausible, then—regardless of whether the regime thinks moral tests are
necessarily part of the test for law—it can take advantage of that empirical fact by
requiring any institution to justify a decision that declares, enacts, or otherwise finds the
law.