Comparing Law and Morality: Natural Law, Legal Positivism, and Legal Realism, Apuntes de Derecho

¡Descarga Comparing Law and Morality: Natural Law, Legal Positivism, and Legal Realism y más Apuntes en PDF de Derecho solo en Docsity! Session 3: Concepts of Law. Law, morals and justice. I- INTRODUCTION The three main dimensions of the analysis of law –validity, efficacy and justice of law were studied in topic 1. However, the complete understanding of these three dimensions and the different views about the relations among them (derived from the existence of different conceptions or schools of law) besides other elements of the relation between law and morals- justice, need to be explained. Regarding conceptions of law, three mains school of law may be considered: legal positivism, natural law theory, and legal realism. II.- NATURAL LAW THEORY.- Natural law theory is the common labelling of different ways of considering law that have been evolving since the ancient times to nowadays and this is the traditional approach to law. Though this general label gathers many different positions, with very important differences, natural law theory can be defined generally as the position that defends these two main assumptions: 1) A cognitivist position in the field of ethics, so defending the existence of true-correct universal moral principles (or principles of justice) that are valid everywhere and every time (moral objectivism) and the possibility to know them through human reason. These moral principles are named natural law. 2) A dualist position in the legal theory (on the concept of law) that defends the existence of two different laws: a) Natural Law, as described above. b) Human-made Law, also called positive law (coming from latin ius positum). Let’s explain these assumptions in depth. Regarding the field of ethics, three main fields of ethics may be distinguished: 1) First field is called descriptive ethics. Here, the scholars study the different moral principles that can be observed in different societies or communities. 2) Second field is called normative ethics. Here, the scholars study what are the main moral principles that should guide a society or community. 3) Third field is called metaethics. Here, scholars are worried about the possibility or impossibility of talking about correction-truth in the field of ethics, as for example in the moral discourse. When it is said that Natural Law Theory assumes a cognitivist position in the field of ethics, we mean in the field of metaethis. In the discussion about the possibility of talking about correction-truth in the moral discourse, 2 main positions may be distinguished: - Cognitivism.- This position defends the existence of true-correct universal moral principles (or principles of justice) that are valid everywhere and every time (moral objectivism) and the possibility to know them through human reason. 2 mains ways of knowing these universal moral principles: o Naturalism.- We can know these moral principles observing nature. o Intuitionism.- We can know these moral principles through our intuition as human beings. - Non-cognitivism.-This position (very influenced by philosophical positivism –since 19th century) defends that there are only two methods that allow us to talk about correction or truth, those applied by science (deductive-inductive and empiral). Thus, as these methods are not applicable to moral discourse, there is no possibility of talking about correction or truth in the field of ethics. We cannot know what is morally correct (Emotivism-skepticism-moral relativism). Moral discourse is always relative, and is a way of appealing to our emotions, but there is no truth or correction in it. Even if there is a moral truth, we cannot know it, and therefore, discuss about it makes no sense. Natural law theory defends cognitivism, meaning the existence of true-correct universal moral principles (or principles of justice) that are valid everywhere and every time (moral objectivism) and the possibility to know them through the observation of nature or intuition. They call these principles Natural law. One clarification must be done. Not everyone defending a cognitivist position in the field of metaethics defends necessarily the existence of natural law. I mean, natural law theorists are always cognitivists but not every cognitivist is a natural law theorist. We will understand better this clarification later. When analyzing a concrete legal rule, validity (as seen in topic 1) doesn´t depend on justice, but on the satisfaction of certains facts: formal and material requirements of validity seen in topic 1. When analyzing the legal system as a whole, there is a connection between validity and efficacy, as a system that is not effective will be replaced by a different one, able to achieve the function of social control and social organization. Thus, legal positivism is using a descriptive (and not normative, as Natural Law Theory) concept of law. Legal positivist scholars are interested in describing what is considered as law in each society and community (social facts). However, many posivists scholars have insisted on the idea that precisely because of the distinction between law and morals (justice), this position is so well prepared (and may be better) to fight against legal injustice than natural law theory. Defining validity from a positivist point of view (social facts that may be checked as competent authority, appropriate prodecedure, not in contradiction with superior rules and not abrogated by a later rule of, at least, the same rank) is only telling us that the rule is supported by the coercitive machinery of the state, but nothing about its justice or injustice. Therefore, when we say that a rule is valid, that is law, we are not saying anything about the moral obligation to obey it (different types of obligation to obey law and their relation with conceptions of law will be analyzed in topic 3 in depth). According to Hart, “What really is at stake is the comparative merit of a wider [legal positivist] and a narrower concept [natural law theory] or way of classifying rules (…) This will lead us in theoretical inquiries to group and consider together as Law all rules which are valid (…) even though some of them offend against a society’s own morality or against what we may hold to be an enlightened or true morality. If we adopt the narrower concept we shall exclude from law such morally offensive rules (…) Nothing, surely, but confusion could follow from a proposal to leave the study of such rules to another discipline (…) If we adopt the wider concept of law, we can accommodate within it of whatever special features morally iniquitous laws have, and the reaction of society to them (…) What then of the practical merits of the narrower concept of law in moral deliberation? In what way is it better, when faced with morally iniquitous demands, to think “this is in no sense law” rather than “This is law, but too iniquitous to obey or apply? Would this make men more clear-headed or readier to disobey when morality demands it? (…) What surely is more needed in order to make men clear-sighted in confronting the official abuse of power, is that they should preserve the sense that the certification of something as legally valid is not conclusive of the question of obedience”. However, the positivist assertion of the conceptual separation between law and morals doesn’t preclude the existence of multiple connections between these two dimensions that positivists scholars do not deny. First, it seems to be evident that every legal system is “structurally moral”, that it is the reflection of certain ideological and ethical options, purporting certain moral values supported by political will that created that law and supports it. We can call this morality, included in the legal system, positive morality or legalized morality and it is usually included in the uppers steps of the legal system as constitutional texts. However, although these moral principles may be respected by inferior rules to be valid, they determine the validity of the inferior rules due to its legal nature (because they have been included in the law) and not because of their moral correction. Besides, this legalized morality will usually reflect the values shared by the majority of the society (or at least those of the elites in power) as a way to secure their efficacy, but not necessarily the correct ones. Second, following Lon Fuller, every modern legal system has a set of structural requirements (what he calls “the morality of law”) that make impossible for a legal system to reach extremely unjust (unfair) consequences, fulfilling in every case what we call “formal Justice” (The distinction between formal justice and material justice will be analyzed in depth in topic 3). Though Lon Fuller’s describes his position on these structural requirements as “procedural natural law”, there is no problem for legal positivists scholars in assuming them as part of the possible connections between law and morals. All these connections between law and morals can be defended from a positivist position and they are compatible with the assertion of the conceptual independence between law and morals. What it is denied from the positivist position is the necessary relation between a concrete morality (in a material sense. Material justice) considered as the right one and the validity of the law. Thus, legal positivism is defending a descriptive concept of law, useful to describe all phenomena that usually are described with this name, independently whether that law is just or not and gaining analytical clarity and at the same time, being able to fight, at least as well as Natural law theory, against legal injustice. One last clarification may be done. After World War II, there was a strong debate (not only in Germany) about how lawyers contributed to the horror seen in Nazi Germany by applaying absolutely unfair rules. Thus, some of the former positivist scholars in Germany (As for instance Gustav Radbruch) said that It was legal positivism (with the formula law is law, no matter if unjust) who helped all of it to happen. However, as noticed by many other scholars (as for instance Ernesto Garzón Valdés, an argentinean legal philosopher exiled in 1975 in Germany and professor at Germany) most of lawyers supporting Nazi Regime did it from a deviated version of natural law theory. Moreover, there is another conception of law that may have contributed to help the Nazi Germany, but it should not be mixed up with legal positivism: Ethical legalism. This ideological position –rarely openly defended by scholars - considers that legal norms- rules are just simply because they are valid, and therefore there is a moral obligation to obey law. This seems to be Thomas Hobbes’ position when he stated in “Leviathan”: Law is to every subject, those rules, which the common-wealth has commanded him, by work, writing, or other sufficient sign of the will, to make use of, for the distinction of right and wrong; that is to say, of what is contrary, and what is not contrary to the rule. According to this position Law has a value itself: positive law is, as such, just law. Thefore, this is a theory about the obligation to obey the law, according to which existing laws deserve moral compliance from the citizens; people, in other words, have a moral duty to obey positive law. This moral obligation derives from the fulfillment of the values of formal justice by law (ethical legalism is more likely if defending non-cognoscitivism regarding material justice. It is more likely that some defends that law must be morally obeyed if she thinks that morality is subjective and, therefore, the competent to define what is just is the state though the law). sanctions are not the same. Sanction of moral rules, when considered as individual morality, is an internal one (remorse or pang of conscience). On the other hand, sanction of legal rules is an external sanction. However, a few clarifications may be done here. If we think in morality as social morality, sanction of social moral rules is also external. Then, the difference between law and social morality on sanction focuses in the fact that legal sanction is institutionalized. VI.- PUBLIC ETHICS AND PRIVATE ETHICS.- The distinction between law and morals requires, also, to distinguish between public and private ethics, both from an analytical and historical point of view. The confusion between both terms is typical of situations previous to the modern world, though it also goes on nowadays in many cases. History of western legal thought could be read, in this sense, as the attempt to get moral neutrality. Tolerance, freedom of religion and freedom of conscience are, from this point of view, a commitment of political power in not interfering in matters of conscience of individuals and in separating public and private ethics. Private ethics are a way to reach moral autonomy, a path for salvation, a plan of life or a strategy of happiness. It may be identified with individual morality and, therefore, it may be developed in the heart of a church or a philosophical conception. It needs, in every case, being accepted by the individual, which is, being autonomous at least in this sense (autonomy as acceptance). Public ethics are made up by the moral values that a certain political power wishes to achieve trough law, those identified in western democracies with security, liberty, equality and solidarity, but also identified with different moral (or inmoral) values in other kinds of political systems. Talking now about the relations between private and public ethics, I think the best one (in an ideal point of view) is the relation between them observed in democratic societies under the rule of law. Here, public ethics are a kind of procedural ethics bestowing the legitimacy of political power and favoring and protecting the fulfillment by the individuals of their own individual morality (private ethics) if this individual morality is subject of being generalized (universality). This ideal point of view about the relation between public and private ethics has been historically denied in other kinds of political systems, giving rise to what can be called “the pathologies of the relation between public and private ethics”. On the one hand, there is the totalitarian pathology, where private ethics are dissolved in the public ethics in such a way that the individual turns into a tool serving the state and its goals (Fascism, Communism). On the other hand, there is the fundamentalist pathology, where a certain private ethics – developed in the heart of a church or a philosophical conception- turns into the public ethics of state and is imposed to every individual through legal rules, not permitting the choices of their own individual morality (Religious fundamentalism, legal moralism, unjustified paternalism and moral perfectionism)