We discussed Hart’s attitude towards Nazi law. He thought that it was clearer to distinguish law and morality than it was to try to explain how the one might be necessarily related to the other. He also thought that there are two apparently worthy goals in conflict in the case. A disadvantage of insisting that the Nazi legislation wasn’t really law is that doing so hides the conflict.
We also spent a good deal of time spelling out what morality is and what someone might mean by denying that morality and law are separate things. This will come in handy in our discussion of Fuller.
Two problems for positivists
The positivist position looks strong if you focus only on the disadvantages of the other side.
For example, as Stephanie pointed out, there is a disadvantage to holding that the immorality of an otherwise valid statue can make it invalid, that is, not law. The disadvantage is that people often disagree about morality. So different judges might decide the same case different ways. That’s a bad thing because it’s unfair, as Ben noted, and because it makes it very difficult to follow the law, as Will and others said. How can the laws govern my behavior if I have no idea whether what I want to do would be illegal or not, even if I know a lot about the law?
Laws are vague too
Of course, people disagree about the law too. That’s the point that Holmes, Frank, and Hart all made. Sometimes, the written or customary law doesn’t settle an issue. Judges have to do that on their own. But how? Some say they should use morality, others say they should use something else.
The objection only works if morality is significantly more vague than some other way of determining what the law is. And, of course, until we know what that other way of determining what the law is, we can’t really compare the two. But I think Stephanie is right to think that there must be alternatives that are less vague. So the positivists get an incomplete on that one.
But the positivists still wouldn’t be out of the woods even if they dealt with that issue. Those who insist on a separation of law and morality do not insist that we ignore morality when deciding what to do. They merely say that morality is not necessarily relevant to deciding what the law is.
When the law is flagrantly immoral, we should change or ignore it. That was the position of the classical positivists: the utilitarians who wanted legal reform. They didn’t think there was anything sacred about the law. They wanted it clearly defined so they could argue for changes.
Well, changing the law is one thing. But let’s talk about the position of those who have to decide how to interpret the law: individual citizens and judges. As Victor noted, the vagueness of morality comes up here too. What should a judge do when presented with a case if, in the judge’s opinion, the law favors a flagrantly immoral outcome? And if judges are allowed to use their moral opinions like this, an individual citizen can’t know how they will rule in controversial cases, and so on.
How might a positivist answer Victor’s objection? Here are a few suggestions.
First, it might be possible to design legal institutions that will nullify the effects of morality on judicial decisions. A series of appeals courts, for example, might select out “moral” decisions and focus solely on the law.
Second, it seems to me that this is an empirical matter. Are judges who think that the law must conform to morality more likely to make judgments on moral grounds than those who think the two are separate? I don’t know the answer. But I do think that a lot of judges follow the law in our society even when it conflicts with their moral beliefs. I’m not sure what that shows (or even if it’s true). But thinking about how judges actually rule on the hot issues of our time, like abortion or capital punishment, might help.
In any event, the general point is a good one. We’re comparing alternatives. Just because one side faces a disadvantage doesn’t mean the other is entirely free of it. No legal theory can simply banish morality from our thoughts and behavior: it would be an undesirable thing to do and, fortunately, it’s impossible in any event.