This semester, I’m teaching Philosophy of Law–again. My syllabus, as always, is a new one, and reflects an altered orientation and focus from those of days past. The current edition is fairly simple: it kicks off with Lon Fuller‘s ‘The Case of the Speluncean Explorers,’ excerpts from H. L. A Hart‘s The Concept of Law, Justice Oliver Wendell Holmes‘ ‘The Path of the Law‘ and then moves on to a selection of readings from Alan Hutchinson’s edited collection Critical Legal Studies. And yet again, I’m finding that I have a very hard time explaining or making comprehensible or plausible the distinction between natural law theories of the law and legal positivism, or indeed, even making clear what those theories are.
On the face of it, this should not be too difficult: natural law theories insist on a conceptual connection between law and morality such that legal obligation is a species of moral obligation; positivists, treating law as a matter of social fact, separate law from morality, and find legal obligation grounded in posited social arrangements and their resultant expectations.
But year after year, semester after semester, I find that I cannot get this distinction across clearly. Rest assured, I do not employ the language of the paragraph above, which is quite formally stated. But no matter what language I use, what instructive examples I use–I always kick off my classes on this distinction by asking students to provide me examples of “something that is legal but would be considered immoral by some and something that is legal but would be considered moral by some”–and of course, I offer extensive exposition and encourage discussion of the texts we use, many of my students’ responses–written and oral–make it quite clear the central concepts involved in making the distinction between natural law and positivist theories of the law clear are, in point of fact, not so. (Sometimes I’m tempted–because of my formal education–to say that natural law theorists say that “no matter how you define law, you are going to have morality somewhere on the right hand side”; I can only occasionally resist this temptation.)
I do not think this is my students’ fault. I suspect this is because over the years I’ve come to suspect I don’t understand the supposedly clear-cut distinction myself, especially as I’ve come to believe that natural law theories can in fact be subsumed under positivist theories: a system of morality and the particular moral principles it entails are a kind of social fact, one that has resulted from the ongoing evolution of a particular social formation; the moral principles that we take to be true at any given instant, the ones that command our obligation and allegiance and that help preserve key social distinctions and help realize socially desired ends; natural law theories can then be understood as claiming the social fact of morality as the one that underwrites legal claims and obligations; in this light, you don’t get out of the historically contingent particulars of the social into some transcendent realm of morality. (Or you could give natural law and positivism a Nietzschean twist by claiming as Nietzsche did in The Genealogy of Morals that morality is derived from law.) As Hart had noticed in his Concept of Law, the theory of law he presented did not say anything about the content of rules; they could be amoral or moral. Understood in this light, natural law theories can be understood as both descriptive i.e., making the claim that legal systems do indeed, always strive for moral content in their laws or prescriptive i.e., legal systems should include moral content in their rules. Where natural law would then turn out to be false is that they would not capture crucial features of extant legal systems; they would have attempted to make their descriptions exhaustive, capturing some supposed conceptual connection, and failed in the process. This fact, and the distance it puts between a natural law vision of the law and the postivist vision would still be worth pointing out.
Thus far, I have not succeeded in making myself clear though. I’ll keep trying.