The progressive positivists’ critique of natural law

I now turn to criticisms of Fuller’s view. In his review of The Morality of Law, Hart wonders whether he and Fuller are perhaps “fated never to understand each other’s work,”^[208] and on one central issue it seems clear that Fuller and his positivist critics talk past each other.

Let us put it most directly. Fuller repeatedly accuses positivists of being statists, “overprimed with power” (PSO 277); theirs, he says, is “the view that identifies the lawyer’s work with established state power” (PSO 252). And repeatedly, progressive positivists like Fred Schauer, Neil MacCormick, and Robin West level the identical accusation of statism against natural lawyers.^[210] (By progressive positivists, I mean positivists who deny per se moral authority to the legal status quo and therefore to the state.) According to Schauer, “the classical natural law theorist” believes “that the very existence of a legal system provides... assurance that the legal system has been designed either to incorporate moral criteria or to produce morally desirable ends.”^[211]

This argument between natural lawyers and progressive positivists origi­nates in one of the most important passages in Hart’s half of the debate with Fuller. In Positivism and the Separation of Law and Morals, Hart accuses natural lawyers of having only “half digested the spiritual message of lib- eralism.”^[212] Natural lawyers understand that in the face of evil enactments by the state, individual conscience should prevail over the duty to obey.

Positivists, according to Hart, are morally more clear-headed. They understand that law has no necessary moral content, no halo. They labor under one fewer illusion about where their moral duty lies, and are less likely to accede to bad law merely because it is law. Quoting Schauer once again, “in insisting that the concept of law does no moral work the [progressive positivist] is taking the irreducibly moral position that we ought not to expect our understanding of law and legal institutions to carry any of the moral water when we engage in personal decision-making or institutional design.”^[214]

It is very curious to find a natural lawyer like Fuller and progressive positivists like Hart and Schauer each accusing the other side of being too statist. In effect, each is trying to outflank the other on the left - which of course leads battlefield adversaries to revolve in a perpetual circle around a point of engagement that neither ever reaches. At least one side in this debate is failing to grasp something about the other’s position. In this case, I think, both are.

Let us begin with Fuller’s accusation that positivists identify law with “a one-way projection of authority, originating with government and imposing itself upon the citizen” (ML 204). This is only half true, because positivists argue only that legal systems may be one-way projections of state authority, not that they must be. Even if the accusation were true, though, Fuller wrongly supposes that positivists approve of one-way projections of state authority. Hart’s argument, of course, is that when the law authorizes something evil, a liberal positivist will disapprove and disobey.

Next, look at the progressive positivists’ moral critique of natural law. Schauer, recall, argues that for classical natural-law theorists, the very existence of a legal system ensures its morality. Why should that be? Schauer does not say, but evidently he believes that the classical theorists contrapose the natural law maxim “unjust law is not law” into the claim that law is just. However, natural lawyers do not actually make this mistake in contra­position. The natural-law maxim is shorthand for “unjust positive law is not genuine law.” This is logically equivalent not to the claim that (all) law is just, but to the claim that positive law that is also genuine law is just.^[215] The mere existence of positive law leads to no conclusion whatever about its justice or injustice.

Let me rephrase all this in a more polemical and less logic-chopping manner. Progressive positivists like Hart, MacCormick, and Schauer think that the natural-law maxim will confuse its adherents and make them too impressed with law, too complacent with the status quo, and too likely to obey. But of course, “unjust law is not law” is the traditional argument for disobedience, not for obedience - so who exactly is it who is confused? In its most famous contemporary American incarnation, the natural-law maxim figures prominently in Martin Luther King’s Letter from Birmingham City Jail, where King invoked it to explain, in the most stirring terms, why he was right to disobey a court order forbidding a 1963 civil rights march.^[216] If the progressive positivists think that the natural-law maxim is an invitation to complacency and obedience, then they must believe that King misunderstood the maxim, because he was neither complacent nor obedient. King mis­understood the maxim, apparently, by failing to draw the wrong conclusion from it. Isn’t it more likely that the progressive positivists have misunder­stood why natural lawyers like King insist that unjust law is not law?

The positivist moral critique of classical natural law misfires in a slightly different way against Fuller’s version.

In this respect, at any rate, Hart and Fuller were talking past one another. Notice, for example, that when Fuller speaks of “fidelity to law” (in PFL) he is generally talking about officials’ professional obligation to maintain the legal system in good order, not about the citizen’s obligation to obey the law, which is Hart’s topic. Fuller asks how Germanjudges, not ordinary Germans, should have responded to the Third Reich, and he answers that fidelity to law - which is not the same as obedience to law - should have led them to resist.

In a recent essay, Schauer offers a different criticism of Fuller, one which presents an interesting twist on the progressive positivist argument. Schauer focuses on the fact that Fuller’s is “insider jurisprudence,” designed and built to help conscientious legal professionals become better lawyers. In the terms I have been urging, it is jurisprudence in the service of professional ethics. Schauer acutely remarks that “Fuller’s perspective flows smoothly from his role as a legal theorist explicitly seeing himself located in a law school and speaking to actual or would-be lawyers.”^[217] Insider jurisprudence presupposes that the professional project has worth, and is worth the efforts of conscientious people to improve it.

Suppose, however, that one is an outsider, whose question is not “What kind of lawyer shall I be?” but “Why should anyone be a lawyer?”^[218] An outsider need not begin by supposing that the legal system has any worth at all, but she does need to understand what the legal system is.

To illustrate Schauer’s point, let our outsider be a visitor newly arrived in a foreign country, who asks someone, “What is the legal system like?” (Perhaps she is thinking about emigrating to the foreign country and going to law school.) And suppose the answer is this: “The judges do whatever the regime tells them to, the regime is repressive, the lawyers are not allowed to disagree with the judges, the laws are vague and change all the time, and the schedule of criminal penalties is a state secret.” If a Fullerian overhearing the conversation chimes in, “You see, it isn’t a legal system at all!” the outsider will reply, “Call it whatever you like - but the person I just talked with answered the question I am interested in.” The outsider has rightfully asked a positivist question and gotten a positivist answer. If the outsider had instead approached the Fullerian to ask, “What is the legal system like?” and received the answer, “There is no legal system here,” this answer would be misleadingly coy, and in no way more truthful.

Nor is “There is no legal system here” a caricature of Fuller’s way of talking. In his reply to Hart, Fuller quotes a Hitler-era statute against slan­dering the Nazi Party, deems it a “legislative monstrosity,” and then embraces the view of postwar German courts that “saw fit to declare this thing not a law” (PFL 654, 655). Schauer’s point, I take it, is that there is a straightforward “positivist” sense, glossed over by Fuller, in which the statute is a law (and not, say, a poem). Otherwise, how could Fuller call it a “statute” and declare it a legislative monstrosity?

Embedded in Schauer’s argument we find a claim that Fuller denies: that the insider’s concept of law, which Schauer agrees is and should be a mor­alized one, is unnecessary to describe a society’s legal institutions - a “positivist” description is available.

“Lawmaking” is a purposive concept, and the purpose of lawmaking is to subject human conduct to the governance of rules (ML 146). Like all pur­posive concepts, it contains implicit criteria of success and failure. As we have seen, lawmaking creates a moral relationship between governors and the governed, and successfully carrying out the terms of that relationship is part of what succeeding at lawmaking means. It follows that if our outsider can recognize what her informant has described as a legal system at all, she can, and indeed must, recognize it as a deviant legal system. Its servile judges, repressive rulers, gagged lawyers, vague and inconstant rules, and secret punishments represent a gross deviation from the aspirations inherent in the lawmaking enterprise.

Could the positivist resist this conclusion by declining to describe legal systems purposively? This is easier said than done. When the outsider asks, “What is the legal system like?” she must have in mind some concept of what a legal system is, for not just anything can count as a legal system. If the informant answers the outsider’s question by saying, “People wander through the countryside gathering grapefruit, which they sell in the marketplace,” the outsider would not think, “My, what an unusual legal system.” She would instead draw the Davidsonian conclusion that she and her interlocutor are not understanding each other’s words properly.^[221] And she would draw that conclusion because what the informant has described does not do, badly or otherwise, what legal systems do - thus, her informant cannot be talking about a legal system.

An outsider’s description of an alien legal system is implicitly a com­parison of that system with her, and our, concept of what a legal system is and is for. Such a concept is an insider’s purposive concept. The idea that one can dispense with the internal perspective on legal systems turns out to be untrue, because we need the internal perspective - our understanding of the point of a legal system - in order to recognize a legal system when we encounter one. Even the outsider’s viewpoint on a legal system presupposes the priority of the purposive point of view.

It may be thought, however, that all these arguments overlook the progressive positivists’ most basic concern, which is simply that insider jur­isprudence lacks critical bite. For a critique of human sacrifice you do not turn to the priest - not even the ethical priest who treats the victim with impeccable concern and respect, at least until the altar is ready. Lawyers, it might be feared, are like these priests. They have too much invested in their system to seriously contemplate major revisions. Furthermore, lawyers’ knowledge is system-specific local knowledge, and the sheer desire for epistemic comfort, the fear of the unknown, may well block lawyers from grasping that entire continents of their legal system are unjust or dysfunctional.

This may be so, but precisely the same things might be said of nonlawyers. Unjust laws are seldom only legal injustices. They typically represent the moral views of dominant or once dominant groups in the larger society - what King, in his Birmingham letter, accurately described as the “numerical or power majority group.” Nonlawyers who belong to a system’s numerical or power majority group are beneficiaries of the system just as lawyers are, and they are no less likely to confront epistemic vertigo at the prospect of abandoning the familiar evils and the moral beliefs that ratify them.

Perhaps, then, the authentic outsider’s standpoint is that of the victims of unjust laws. However, victims are usually cut off from access to information about how their oppressive legal system operates, and in many cases are also denied the basic goods of education. Historically, the great social and legal critics have been insiders or semi-insiders whose lively sense of critical morality allows them to pass beyond their own self-interest and identify with the victims of bad law. I see no reason to suppose that legal insiders will have a weaker sense of critical morality than outsiders. Are legal professionals like Thurgood Marshall or Catharine MacKinnon really at a disadvantage in diagnosing bad law? Worse at it than Malcolm X or Andrea Dworkin? There is no reason to suppose anything of the kind.