Can you determine the content of the law without reference to moral argument?
The answer to this question depends on how we understand a “reference to moral argument.” There are two competing interpretations: (I) “a reference to moral argument” as an appeal to or reliance on moral considerations in determining the content of the law – in this case, I argue that you can, and should, determine the content of the law without it. (II) “a reference to moral argument” as simply a mention or analysis of moral concepts and arguments stipulated by others – in this case, I argue that you cannot. Under interpretation (I), I will argue that the constitution of law has nothing to do with morality, only social fact. Under the interpretation (II), I will argue that pre-established moral concepts such “fairness” “equity” and “reasonableness” are often analyzed, interpreted, and discussed when determining the content of the law, even if these concepts themselves are not constitutive of the law – that is, even if they do not form a justification or explanation of the law qua law. I will begin by considering what the content of the law is, and how we can determine it. I will then show that morality does not, under interpretation (I), figure into it. I will then consider some objections to this view, one of which is based on interpretation (II). I will conclude that interpretation (II) and related objections do not defeat the thesis because their arguments do not really address the content of the law, even though they might seem to.
So let us begin by asking the important question: what is “the content of the law?” The “content of the law” is what the law stipulates, what it says. To determine the content of the law is to identify what constitutes law – to specify what is law and what is not. This does not require a definition of law, only the criteria that must be met or the conditions that must be fulfilled for something to be considered part of “the law.” This will require us to look at specific laws and ask: “why is this the law?” (rather than asking the more general question: “what is law?”) In doing so, if we are able to find a common answer, a justification for the legal validity of most laws, we can say we have found a “determinative basis” of the law, a criterion that allows us to specify what is law and what is not.
Let us look at a few examples. We know that the law in England is that people over the age of 18 are allowed to vote for their representatives in parliament. Why is this the law? Because the Representation of the People Act, passed by parliament in 1969, mandated it. We also know that the law in India is that homosexual sex between two consenting adults is legal. Why is this the law? Because under Navtej Singh Johar v. Union of India, the Supreme Court declared that Section 377 of the Indian Penal Code – which criminalized consensual sexual conduct between adults of the same sex – was unconstitutional.
It is easy to see that identifying these laws qua laws required no special appeal to moral argument. It was not necessary to say that the law extends franchise 18 year olds because, as mature, rational, and often independent individuals, they have a right to participate in the democratic process. While this argument may provide a justification for the law, it does not help us identify it – the “moral” argument I provided is only one of many possible justifications for the Representation of the People Act (1969). We could also argue, for example, that the statute is law because increasing the franchise is better for democracy. The problem with appealing to morality – or indeed to any consideration of a law’s merit – in determining the content of the law is that there are various interpretations that could be given. It cannot, therefore, form a reliable determinative basis for the law. It would be difficult to agree on the content of the law if it were; everyone would have their own interpretation of what a law means, and it would be possible to reject as law that which we believe does not conform to moral principles.
I take the positivist view that law is a matter of what has been posited, that the content of law depends on social facts and not on morality. By “social facts” I simply mean the social set-up of a juridical entity – usually a sovereign state – such as its system of government, the traditions of its judiciary, and social mores and customs. What constitutes law is simply that which has been “authoritatively pronounced.” (Greenberg, 2010: 4) To be more precise, law is determined by the linguistic content of an authoritative pronouncement, and this pronouncement is a legal norm because it was authoritatively pronounced. As we can see in the examples above, we explained the law by referencing the authoritative pronouncement of, in the first case, the legislature, and in the second case, the judiciary. So we can say that the determinative basis of law is whether or not it was posited by an authority. Of course, this leads to myriad questions about what counts as an “authoritative pronouncement” and an “authority.” A lot of this has to do with the manner and form of law creation and adoption, as well as the role of the judiciary in the legal system. Under this view, in order to more clearly determine the content of the law, we might ask further questions such as what authority declared a certain pronouncement law, where its authority came from, and to whom and for how long its authority extends and applies. None of this, however, requires any reference to moral argument.
There are a few objections to the picture I have presented. One is that courts and legislatures do in fact make reference to moral argument when making law. A legislature might increase the franchise because it sees some moral value in including more people in the democratic process. Courts often use criteria such as “culpability” and “fairness” all the time in their judicial decisions, and argue over what counts as “fair” or “reasonable.” Clearly, these are all references to moral argument, aren’t they?
This objection is partly based on interpretation (II) of the thesis, and there are a few responses to it. Firstly, while it is true that legislatures do make reference to moral argument when formulating the law, this does not mean that the validity of the law rests or depends on moral considerations. This should already be evident from our discussion of positivism above. The question of the judiciary’s references to moral concepts and values is a trickier one, but still easy enough to answer if we consider it carefully. When the judiciary makes reference to moral arguments and concepts, they are not referring to substantive moral considerations, but more often moral considerations as they have been posited. That is, they are referring to the understanding of morality in the law, an understanding which is authoritative not because it is the best understanding, or the most moral one, but because it was posited and authoritatively pronounced. In this way, moral concepts are interpreted quite narrowly, not on their merits, but based on the fact that, for example, previous courts interpreted it that way, or that the legislature intended it that way. As Raz points out, positivism can allow for “arguments about people’s moral views and intentions, which are necessary for interpretation.” (Raz, 1979: 47) Moreover, there is no direct and consistent correlation between the legal understanding of a certain moral concept and the conventional understanding. So, for example, legal “fault” may not imply any moral blameworthiness, and a “reasonable” standard for adjudication may be quite contrived and artificial.
Another objection to the positivist picture presented above actually comes from one of the most influential proponents of legal positivism, H.L.A. Hart, who was reluctant to completely exclude morality as a criterion for the validity of a law. In response to Ronald Dworkin’s criticisms, he was careful to emphasize that the validity of a law does not exclusively depend on the nature of a pronouncement and related social facts, but that it can sometimes depend on moral argument as well. He writes: “in some systems of law, as in the United States, the ultimate criteria of legal validity might explicitly incorporate besides pedigree, principles of justice or substantive moral values, and these may form the content of legal constitutional restraints.” (Hart, 2012: 247) Hart calls this kind of approach “soft positivism.” (Hart: 250) Soft positivism is willing to admit conformity with moral principles or substantive values as a criterion for legal validity. Crucially, to distinguish Hart’s argument from the discussion above, we must remember that Hart is talking here about so-called “hard cases” where the law is unsettled. That is, the moral principles which a US Supreme Court judge will reference are not legally-defined moral concepts, but general moral principles that are not necessarily written down, and may not have been part of the legislator’s intentions.
Mark Greenberg makes a similar point in ‘The Standard Picture and its Discontents.’ He mentions three ways in which anti-positivists argue that morality has an impact on the law under the “Standard Picture.” They do this, he writes, “1) by filling gaps in (or otherwise supplementing) the law; 2) by playing a ‘safety-valve’ role in modifying the law when the law would otherwise be absurd or extremely unjust; 3) by playing a role in accounting for legal authority.” (Greenberg: 31) We can see that the third argument has nothing to do with our thesis; an account of legal authority does not help us determine the content of the law. So let us address the first two.
I argue that both Greenberg’s first two theses, and Hart’s soft-positivist approach, do not really prove that the content of the law sometimes involves reference to moral argument. In fact, their claim is based on the opposite understanding – that sometimes, where the law in unsettled, unclear, missing, or patently absurd, moral considerations can be added. In this way, moral argument enters into the law “externally,” from without rather than within, and becomes a part of the law only after the judges decide to make it so. Of course, once a moral argument is added to the law in this way it becomes a part of its content. But then, to determine its content, we do not make reference to the moral argument alone, but the fact that it was posited, the fact that a valid legal authority decided to make it a part of the law where it initially wasn’t. In this way, we can see the content of the law is still dependent on its positive character, while acknowledging that moral considerations can be operative in legal decisions, just as logical and linguistic ones often are. This does not mean that the content of the law cannot be determined without reference to logic or semantics.
In conclusion, while it may be true under interpretation (II) that the law cannot be understood without reference (strictly speaking) to moral argument, this is a trivial point. Not in general, of course; it is obvious that morality forms an important backdrop to the law, enters into its language, and provides some of its justification and authority. It is trivial with respect to our thesis in this essay, where we explored whether the validity of a law, and therefore a determination of the content of the law, has to depend on moral argument. Even if there are convincing arguments that it could, the best of which is Greenberg’s account of the content of the law as consisting of “certain general and enduring part of the moral profile,” (Greenberg: 24) this does not mean that it has to.