Why do definitions matter?

I said, at the end of section 7.1, that there might be reasons for pre­ferring a definition of a complex term such as “law” other than that it is simply the one that competent speakers of the language seem to use.

Thus, the natural law theorist's objection to the positivist view is not that the positivists have misdescribed the way people ordinarily use the word “law,” but that their view has serious moral and politi­cal dangers. Unless we insist that law must have a certain moral con­tent, we may find ourselves accepting as legal—and, therefore, in some sense, binding—horribly immoral laws, such as the racist laws of Nazi Germany.

The positivist's reply is that the law is indeed a question of fact and not of value. Far from obliging us to respect bad laws, their view forces us, once we have decided the factual question of what the law is, to face the separate normative question of whether we should obey it. We can best keep our eyes open to the possibility that laws should not be obeyed by keeping clear the distinction between two questions:

a) Is this rule operating in this society?

b) Is it a good thing that this rule is operating?

Indeed, positivists have argued that it is the natural law theorists who risk giving bad laws respect they do not deserve.

One problem with the natural law view, then, is that it may lead people to think that every law is morally binding. But equally wor­rying for the positivists is the possibility that a conflation of law and morals can lead people to think that every moral rule should be legally binding.

Thus, for example, someone might be led to defend censorship laws that said that people may not look at pornography (irrespective of whether it leads them to do harm to anyone else), even if their enforcement involved a substantial interference in the private lives of citizens. Keeping law and morals apart allows us to entertain the possibility that some of our moral ideas should not be imposed on others—that some moral rules should not be legally enforced because to enforce them is to fail to respect the citizen's autonomy.

Yet this hardly seems to be a fair objection to the position of the natural law theorist. People who see the criminal law as Bentham did, regarding it simply as a device for maximizing utility, have no special reason to respect autonomy; all that they require is that we maximize utility. It is the natural law theorist who argues that a sys­tem that fails to respect the citizen's autonomy is not a system of law, and that victimization is not a form of punishment. They argue this precisely because they hold that respect for certain moral ideals, among them autonomy, is internal to the concept of law. And in claiming this, they are not simply expressing a disagreement with positivism about the word “law” (or “punishment”), but appealing to a different view about the proper function of government.

At the end of Chapter 5 I argued that autonomy was an impor­tant value; as we have seen, respect for autonomy is important in distinguishing between the justified use of punishment and bare coercion.

But autonomy is an important issue not only in the enforcement of law but also in its creation. If we respect people's autonomy, we may wish to enforce only those criminal laws that are necessary to protect citizens from each other. Suppose there was no evidence that pornography led people to do harm to others. If we thought that the desire for pornography was, nevertheless, immoral, making someone avoid pornography would still not make him or her a bet­ter person; what would make the person better would be to per­suade him or her that looking at it was wrong. Even if you think that looking at pornography is intrinsically wrong, therefore, you might still agree that simply forcing someone not to look at it with the threat of punishment, even though the person wants to and does not see that it is wrong, is an abuse of the powers of the state.

The view that the heart of a system of law is respect for the citi­zen's autonomy has powerful consequences. If we respect the autonomy even of the offender, we must insist that criminal trials and punishments should be able to show the offender why he or she is being punished, and to offer him or her a justification for the severity of the punishment. If this is to be possible, the courts must be able to argue that the offense was an offense against a rule that can be justified because it is aimed at the common good, that the punishment is consistent with our moral view of the offense, and that the court has taken into account the offender's reasons for doing what he or she did. A system of courts that did not meet these conditions would not deserve the respect of offenders, because it could not seek to show them why they were being punished.

These are difficult and important questions. And it is important also to see that these sorts of questions can be central to the reasons why people adopt one or the other position in the debate between natural law and positivism. In thinking about the merits of the vari­ous views I have discussed, I hope you will keep in mind the fact that they are not just arguments about the meanings of words. At the heart of the dispute are some of the most important questions about how we should conduct our lives together.

7.11