The Application of Positive Law - Essay Example

?The Application of Positive Law: A moral Process? This paper will assess the argument that lawyers need only apply posited law to cases and not assess whether it is just or unjust. The positivist approach to the validity of law will be examined and evaluated against its main critic, naturalism. Positivists simply state that “the fundamental value in judicial ethics is impartiality” (Wendel, 2007: 1). The positivist theory of law argues that principles which determine whether an act is right or wrong can be found only in the posted law, and whether it categorises an act as just or unjust. Positivism thus fundamentally strikes a major distinction between ideology and law and claims that only law can provide the adequate grounds for making legal decisions (Kennedy, 1997: 24-25). Therefore the distinction that positivism makes also establishes a difference between legal and non-legal principles, in that the former is represented by posited law and the latter by moral valuations. The core of positivism is based on the assumption that morality does not and can not exist on a universal or objective level. This is because concepts of right and wrong are only located in individual beliefs and attitudes towards moral concepts (Raphael, 1994: ch 2). These concepts can only ever be subjective because an act is not inherently immoral; it is rather immoral because an individual considers it to be so. Morality is not an aspect within an act, it is an aspect which exists in the way an individual observes an act, and because this observation is emotional, whether an act is right or wrong can and does differ between individuals depending on their moralistic outlook (Hume, 2003: III.i.I). Positivist lawyers thus claim that the only criteria which exist to determine whether a legal rule is valid or not depends on concepts different from subjective notions of morality. Law is hence able to be immoral yet legally valid nonetheless if it adheres to the procedural criteria established by theorists such as Hart (1961) and Kelsen (1949, 1991). The main problem for pure positivists is the existence of ‘hard’ or morally difficult cases. While the law can be applied in a positivist manner to simple cases without making moral considerations, some cases exist which cannot be solved by simply applying the posited law. Something more is needed: non-legal considerations. Indeed, the historical example of Nazi law highlights the problems posed by a purely positivist legal system, and the potential for such systems to be severely abused. Dworkin suggests that law should be perched upon some type of authoritative foundation of legality (1977: 32-34), yet soft positivists recognise the existence of legal artistry which requires judges and lawyers to undertake discretion when applying and interpreting legal terms in real cases (Hart, 1994: 145-147). Does this mean however that judges and lawyers are free to refer to non moral considerations if a case is considered ‘difficult’? Difficult cases such as that of Re A (Conjoined Twins) highlights the potential for the law to experience difficulties in being applied ‘as is’ to specific circumstances. Perhaps it could be suggested that the above interpretation of positivism is rather narrow, and that judges are able to apply the law without referring to moral considerations without encountering difficulties. Hart claims that legal terms can indeed be applied to hard cases, but that their meanings can be distorted slightly to allow them to be applied to difficult cases through “resemblances which can reasonably be defended as both legally relevant and sufficiently close” (1961: 127). This provides some degree of discretion or freedom for judges and lawyers when they interpret and apply posited law, yet it remains distinct from making moral considerations in order to determine the validity of legal rules. While the posited law may not be able to provide a specific answer for every legal problem, terms and definitional applications can be ascertained without the need for morality to enter the process. Such arguments gather some ground in strengthening the distinction between law and morality. Yet can the positivist repel his most potent critic, the naturalist? One of the vital predicaments experienced by an entirely positivist system is that it only requires that law satisfy specific procedural requirements in order to be valid. However reality has underlined the great difficulty courts often face when taking obvious moral considerations into account, yet taking major steps to conceal them. Critics state that legal oughts simply cannot be obtained from moral oughts, as others may suggest (Kelsen, 1967: 4-6). Is this to state, then, that law is valid law no matter what its content provided it satisfies the criteria which make it posited law? History provides examples in which unjust law has been overridden by issues of justice (morality) (Radbruch, 1946: 105-108), despite the fact that they are restricted to extreme situations. The actual process in itself of evaluating whether a law is extremely unjust is arguably a moral process. Does this mean that the law can not be separated from morality? Indeed, the above example is rare and extreme, yet it gathers much strength in highlighting the difficulties that positivism experiences when it claims that law can be applied as a separate concept from its justness. Positivism essentially seems to allow moral considerations to be applied, yet it searches constantly for a way to erase the link between law and morality. It is arguable that law be passed which provides for circumstances under which a law can be termed legally invalid in terms of justice, yet this in itself highlights the inherent difficulties with predicting and providing for every possibility. It can thus be argued that an entirely positivist approach to law is not able to recognise that the law can not always provide the right answer, and cannot make a strong enough argument that procedural requirements are enough to make a law actually valid. For example, a law under positivism which prohibits women from walking on the pavement need only fulfil procedural requirements in order to be legally valid. It is arguable that the question of legal validity is a great deal more complex than the positivist would assume. The positivist could, and would respond that law is law, apart from whether those who are subjected to it classify it as just or unjust, even despite whether they obey the law or not. Yet the claim that law is valid even if it does not achieve the support of those who are subjected to it makes law somewhat pointless. To argue that “the existence of law is one thing, its merit or demerit is another” (Austin, 1995: 157) is as useless as stating that a car is still a car, even without an engine or wheels. It also does not provide aid or guidance when difficult cases arise. Hart is however able to provide some convincing direction for problems caused by the ever-existent difficult cases. His recognition of the existence of a “core of indisputable truth in the doctrines of natural law” (Hart, 1994: 146) provides for the use of non-legal considerations to interpret and apply the law to specific circumstances. If they are made on a non-subjective basis, such non-legal considerations are able to make the law applicable in a manner that allows it to govern those subjected to it appropriately. These non-legal considerations need not be subjective or personal considerations (it would be difficult for such non-legal considerations to be applied), rather they would simply reflect and represent the collective moral outlook of society as a whole. This would enable the law and those who apply it to surpass the potential problems posed by the open-textured nature of words while avoiding the enforcement of subjective moral opinions on others, or the alteration of law (Hart, 1994: 148-152). Positivism prefers certainty in the law above all else, and this perhaps why it risks the disadvantages of segregating moral considerations (Wacks, 2005: 70-71). This leads to the argument that by allowing moral valuations to enter into the application of the law, the risk of arbitrary decisions arises, making the law unpredictable and inconsistent. It also renders the law subject to the personal (and subjective) outlooks of those who apply it. An example of this would be the case of R v Secretary of State (ex parte V), in which two underage youths beat a young child to death. While their initial sentence was ten years incarceration, this term was increased by the Home Secretary to fifteen years, in response to public outrage at what they considered to be a lenient sentence. Existing legislation limited the maximum sentence to ten years, and so the Home Secretary’s decision was held to be unlawful. This case highlights the need to maintain strict legal rules which cannot be changed by moral opinion, for the potential for unjust outcomes is extremely potent. Essentially, the central effectiveness of the law depends on its predictability, consistency and effectiveness. It can thus be concluded that, while positivists seek to distinguish between and separate law and morality, whether they successfully manage to is another question. While one would like to indulge in the existence of a world in which the law dictates simply what is right and what is wrong, whether the law can provide all of the answers to legal problems is unlikely. Furthermore, some positivist theories do possess a form of morality in themselves; Kelsen’s Grundnorm, for example could be interpreted as a basic moral value (1949: 117). While positivism does gather much ground in separating law for morality, whether this is desirable, possible and sensible is another question. Such a separation does not allow for the understanding of how law is to be applied, defined and interpreted on a more specific level (Grotius, 1679: III I.1.10.1-12.1). It is thus arguable that a more profound view of the law is necessarily incorporative of the realisation that non-legal considerations play at the very least a minimal role in the application and interpretation of legal rules. This does not mean that morality should enjoy unrestricted access in the sphere of posited law, because it is not agreeable that morality is not “something universal, common to all good things, and single.” (Aristotle, 2004: 1096a28; Shields, 2007: 138). Unfortunately naturalism meets its demise within the argument of subjectivity. However, though most cases simply require that “man need but open the book in order to inform himself what the aspect borne by the law bears to every imaginable act” (Bentham, 1970: ch 19 para 10), the existence of moral considerations in the law is often unavoidable (particularly for the hard cases). Any serious attempt to separate completely law from morality is impossible and too simplistic. Bibliography Aristotle, The Nichomanchean Ethics in Thomson, J.A.K. (trans.), Penguin Books, London, 2004. Austin, J., The Province of Jurisprudence Determined. Rumble, W. (ed.), Cambridge University Press, Cambridge, 1995. Bentham, J., Of Laws in General. Hart, H.L.A. (ed.), Athlone Press, London, 1970. Dworkin, R., ‘The Model of Rules I’ in Taking Rights Seriously, Harvard University Press, Cambridge, Mass., 1977. Grotius, H., Opera Omnia Theologica. Moses Pitt, London, 1679. Hart, H.L.A., The Concept of Law. Clarendon Press, Oxford, 1961. Hart, H.L.A., The Concept of Law, 2nd edn, Oxford Clarendon Press, Oxford, 1994. Hume, D., A Treatise of Human Nature. Dover Publications, New York, 2003. Kelsen, H., General Theory of Law and State. Wedberg, A. (trans.), Harvard University Press, Cambridge, Mass., 1949. Kelsen, H., Pure Theory of Law. Knight, M. (trans.), University of California Press, Berkeley and Los Angeles, 1967. Kelsen, H., General Theory of Norms. Hartney, M. (trans.), Clarendon Press, Oxford, 1991. Kennedy, D., A Critique of Adjudication. Oxford: Oxford University Press, Oxford, 1997. Radbruch, G., Gesetzliches Unrecht und Ubergesetzliches Recht (1946), in Dubber, M.D., ‘Judicial Positivism and Hitler’s Injustice’ (1993) 93 Columbia Law Review 7. pp. 1807-1832. Raphael, D.D., Moral Philosophy. Oxford University Press, New York, 1994. Shields, C., Aristotle. Routledge, Oxon, 2007. Wacks, R., Understanding Jurisprudence. 2nd edn, Oxford University Press, New York 2009. Wendel, W.B., ‘Jurisprudence and Judicial Ethics’ (2007) Cornell Law Faculty Publications. Paper 96. Source: http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1095&context=lsrp_papers&sei- redir=1#search="wendel+Jurisprudence+and+Judicial+Ethics+2007" Accessed: 12-11-2011. Cases Re A (Children (Conjoined Twins)) [2000] 4 All ER 961. R v Secretary of State (ex p V); R v Secretary for the Home Department (ex p T) [1998] HL AC 409, [1997] 3 All ER 97 Read More