CJPS6

Law and Morality

Author(s): Jerome E. Bickenbach

Source: Law and Philosophy , Dec., 1989, Vol. 8, No. 3, Symposium on Legitimacy of Law (Dec., 1989), pp. 291-300

Published by: Springer

Stable URL: https://www.jstor.org/stable/3504589

JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected]. Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at https://about.jstor.org/terms

Springer is collaborating with JSTOR to digitize, preserve and extend access to Law and Philosophy

This content downloaded from �������������75.89.149.244 on Sat, 07 Jan 2023 04:00:05 UTC�������������

All use subject to https://about.jstor.org/terms

JEROME E. BICKENBACH

LAW AND MORALITY*

I.

The relationship between morality and law is one of the more endur- ing problematics of jurisprudence. It has come to be the locus of the dispute between natural law and legal positivism and has generated a variety of controversies about the scope of legal enforcement. Like many perennial philosophical issues, moreover, it has endured because we are pulled in two opposing but equally plausible directions.

We are convinced, first of all, that questions of the existence of law are categorically distinct from questions of the moral acceptability of law.' Law and morality, that is, are at best extrinsically related. More- over, the law as it is seems to be the product of social forces too complex and haphazard to preserve, or create, an unambiguous moral foundation. This being so, neither substantive law nor legal practice or institution can have an intrinsic claim on our moral allegiance. The law is merely a social instrument to be closely monitored and assessed against extra-legal standards of moral or political acceptability.

Still, we also find it difficult to deny that, in at least some respects,

* An earlier version of this paper was read at the Symposium on the Legitimacy of Law in Modem Society, Tampere, Finland, August 1988. 1 This proposition was central to early legal positivism; see John Austin, The Province ofJurisprudence Determined (London: Weidenfeld and Nicolson, 1965) and Jeremy Bentham, Of Laws in General, ed. H. L. A. Hart (London: Athlone Press, 1970). John Chipman Gray expressed the 'separation' thesis as the conceptual truth that the law is not an ideal, but something that actually exists, in The Nature and Sources of Law (New York: Macmillan, 1938). Despite an important qualification about an essential, moral core to law, the separation thesis has been carried into modem legal positivism by H. L. A. Hart, see his 'Positivism and the Separation of Law and Morals', Harv. L. R. (1958): 593, and The Concept of Law (Oxford; Clarendon Press, 1961) Ch 9. On these matters see my 'Law, Morals, and the Fallibility Thesis', University of Toronto L.J. 35 (1985): 67.

Law and Philosophy 8: 291-300, 1989. C 1989 KluwerAcademic Publishers. Printed in tihe Netherlands.

This content downloaded from �������������75.89.149.244 on Sat, 07 Jan 2023 04:00:05 UTC�������������

All use subject to https://about.jstor.org/terms

Jerome E. Bickenbach

the law is intrinsically imbued with moral content.2 We cannot but be aware of the evident analogies between morality and the criminal law, for example, or notice that legal discourse depends upon, indeed seems committed to, moral categories like responsibility, fault, compensation,

justice, and rights. These similarities may persuade us that morality either dictates the actual content of legal norms or else provides procedures of practical reasonableness that necessarily regulate the positive law. And if we are willing to go this far, then we may sense that to some degree the law must have an inherent moral authority over us.

These two familiar perspectives on the relationship between moral- ity and law tend to channel our approach to the central jurisprudential issue of the normative validity, or legitimacy of law.3 If we believe that the law has intrinsic moral content, then the legitimacy of law will seem to depend on the degree to which moral norms are revealed in substantive law and furthered by legal practice. The legitimacy of existing law on this perspective is a matter of the manifestation of true

or pure legality in actual legal practice. On the other hand, if we believe that the law lacks intrinsic moral

content, then legitimacy cannot be linked to the character of legality, pure or otherwise. Instead, we must look through and beyond the law as we find it in order to disclose the social aims this instrumentality

ought to secure, maintain, or enhance. And doing so we shall usually conclude that the legitimacy of the law is a matter of the effectiveness

2 This is the principal, grounding claim of those accounts of natural law that build on the basic Thomastic view of law. See Lon Fuller 'Positivism and Fidelity

to Law - A Reply to Professor Hart', Harv. L. R. 71 (1958) and John Finnis, Natural Law and Natural Righlts (1980). See, for a similar account grounded in Kantian moral philosophy, George Fletcher 'Two Modes of Legal Thought', Yale L.J. 90 (1981): 970. 3 This characterization of the central jurisprudential problematic arises out of Max Weber's work, see his Economy and Society (New York: Bedminster Press, 1968) and Jiirgen Habermas's isolation of the problem of legitimation in Legitimation Crisis (Boston: Beacon Press, 1973), Strukturwandel der Offentlichkeit (Neuwied: Luchterhand, 1962) and The Theory of Communicative Action, vol. one (Boston: Beacon Press, 1984).

292

This content downloaded from �������������75.89.149.244 on Sat, 07 Jan 2023 04:00:05 UTC�������������

All use subject to https://about.jstor.org/terms

Law and Morality

of existing legal discourse and practices in furthering important social aims without incurring unacceptably high social costs.

I do not wish here to contribute to this ongoing debate about the essential moral content of the law, or indeed to make any direct claim about the relationship between law and morality. Instead, I want to identify a jurisprudential assumption about the nature of the law as a normative system, an assumption that is, I believe, shared by both sides of this debate, as it has been traditionally conceived. This assumption may have a profoundly distortive effect on the issue of the legitimacy of law, and if so, it should be challenged.

II.

Traditionally, the debate over the relationship between law and moral- ity has focused on the problem of identifying criteria of legal validity - those conditions under which a normative proposition or practice acquires the status of law. This focus has transformed the debate into a contest between two general conceptions of the nature of law. On one conception, the principal criteria of legal validity are moral inasmuch as the law is a structure whose normativity depends upon the embodi- ment, incorporation, or essential appeal to moral normativity. On the other, the principal criteria of legal validity are formal since the law is a more or less content-less normative framework that absorbs substan-

tive moral, prudential, and political content from external sources.4

It is a consequence of the first conception that since morality secures legal validity, the law receives its legitimacy externally, through

the legitimating power inherent either in the moral content of legal norms, or in the correspondence between legal processes or norm creation and application and our moral consciousness. And on this point the second, positivistic conception of law agrees. For although the positivist insists that legal validity is ultimately a product of the normative structure of a legal system, this structure consists entirely of

4 See Ernest Weinrib's characterization of instrumentalist accounts of law in

'The Intelligibility of the Rule of Law' in Hutchinson and Monahan (eds.) The Rule ofLaw (1987).

293

This content downloaded from �������������75.89.149.244 on Sat, 07 Jan 2023 04:00:05 UTC�������������

All use subject to https://about.jstor.org/terms

Jerome E. Bickenbach

rules that specify properties of the "pedigree" or formal legal validity of positive law. The deeper question of the normative validity of the content of law cannot be answered from within this formal normative

structure, the positivist argues, but rather presumes a different norma- tive standpoint external to it.

As well, both conceptions share the view that the authority of the law cannot, even in principle, arise from within, or solely in terms of, a distinctively legal normativity. When it can be made out at all, the obligation to obey the law, it is sometimes argued, can only plausibly be shown to follow from extra-legal, moral, prudential, or political principles.5 Even the natural lawyer, who will argue that law as such commands our respect and obedience, typically means by this that the moral authority of the law flows directly from the law's inherent moral content.

In short, the jurisprudential debate about the relationship between law and morality has traditionally assumed the normative dependence of the law. As a normative system composed of a collection of distinct and identifiable practices and institutions, the law is understood as providing a complex and evolving structure for the creation, develop- ment, refinement, and application of certain norms. Natural lawyers and legal positivists disagree about the essential or intrinsic moral content of those norms, but both seem comfortable with the view

that, when the jurisprudential questions of validity, legitimacy, and authority are at issue, these norms stand in need of extra-legal evalua- tion. The law itself, it is assumed, lacks the normative resources to

ground its own fundamental norms. Now, the assumption of the normative dependence of law may be

necessary to sustain the debate between natural law and positivism, or to set limits on legal enforcement of morality. But if so, the potential costs of this assumption are not insignificant. For on the face of it, the normative dependence of law seems to undermine, or vitiate, the jurisprudential point of inquiring into the normative validity of law. This is because the meaningfulness of questions about the legitimacy of law presupposes, not normative dependence, but the normative

5 An example of this line of argument is found in Joseph Raz, The Authority of Law (1979), ch. 12.

294

This content downloaded from �������������75.89.149.244 on Sat, 07 Jan 2023 04:00:05 UTC�������������

All use subject to https://about.jstor.org/terms

Law and Morality

autonomy of law. Whether we argue that modern law can or cannot claim legitimacy, we must assume at least that the law is a discrete and independent normative system. Normative autonomy, I want to sug- gest, is a precondition of normative rationality, and without normative rationality, the question of legitimacy loses its point.6

Admittedly, there is a sense of legitimacy that does not require the normative autonomy of the law. Legitimacy might be taken to refer to the fact of widespread social acceptance of legal norms. Of course, on this empiricist interpretation of legitimacy the issue of normative validity is not so much addressed as replaced by the very different question of de facto acceptance of, or belief in, the legitimacy of legal norms and institutions. As a result, to investigate legitimacy in this sense, nothing whatsoever about the systematic, normative character of the law need be presumed or considered.

There is some reason to doubt whether this empiricist interpreta- tion of legitimacy is of lasting jurisprudential interest.7 At any rate, if our concern is with the normative validity of legal norms - rather than their de facto acceptance - then we are obliged to attend to the overall normative structure of the law. We must because a critical

assessment of existing legal norms requires an understanding of the practices in which those norms are situated, and in terms of which they acquire their legal significance. And since these practices do not stand alone, but are themselves located within a matrix created by a normative structure, one must also seek to identify the preconditions of the normative rationality of that structure.

The law as a whole is, of course, a complex and multifarious normative system. As a result, it is common, and perhaps essential, to distinguish between the legal norms that govern criminal law from those involved in civil actions, or constitutional judicial reviews, and

6 That normative rationality of law as a precondition of legitimacy I understand to be Jiurgen Habermas's claim in The Theory of Communicative Action, vol. one (1981). 7 Thus, for example, Jurgen Habermas argues that there is a difference between the de facto social acceptance (Geltung) and the validity (Gultigkeit) of legal norms, with only the latter being of fundamental jurisprudential significance: Moralbewusstsein und Kommunikatives Handeln (1983).

295

This content downloaded from �������������75.89.149.244 on Sat, 07 Jan 2023 04:00:05 UTC�������������

All use subject to https://about.jstor.org/terms

Jerome E. Bickenbach

so forth. Nonetheless, a characteristic of any normative system that includes, as the law clearly does, practices for assessing, evaluating, or rating human conduct or state action is that it embodies, and allows for the expression of, a practical discourse that is sufficiently complete and flexible to serve the needs of these practices. Such a discourse must enable participants to express, debate, and potentially resolve any dispute that might arise from the application of governing norms to particular cases. A normative system will thus include a variety of adjudicative processes the outcomes of which make claims to norma- tive validity.

These adjudicative processes function within and in accordance with the rules, conventions, or traditions of the governing practical discourse. In the criminal law, for example, rules and principles of evidence and procedure, perhaps supplemented by constitutional guar- antees of due process, set out the boundaries of the practice of criminal adjudication. The limits of the normative rationality of the processes at work during the criminal trial, as well as the roles the various participants must play there, reflect fundamental, and familiar, legal norms. These norms govern the processes of transformation by which a criminal suspect becomes a criminal accused, and then, perhaps, a convicted criminal liable to punishment. The norms governing other legal adjudicative processes identify and serve other concerns.

Plainly, the possibility of giving a critical assessment of these prac- tices and institutional structures depends upon our ability to identify them as examples of legal practice and legal normativity. At a mini- mum, these practices must possess an integrity or internal cohesiveness sufficient to distinguish them from mere repeatable patterns of social behaviour. A legal practice must, that is, be recognizably legal: we must be able to ascertain, and more importantly to demonstrate, that when certain things are said and done the result is an instance of a legal practice and not some other kind of social practice.

As well, those who participate in these practices must see them- selves as being governed by rules, conventions, and traditions over which they do not have complete discretionary control. What is expressed by a 'move' in such a practice - say the opening address by

296

This content downloaded from �������������75.89.149.244 on Sat, 07 Jan 2023 04:00:05 UTC�������������

All use subject to https://about.jstor.org/terms

Law and Morality

the plaintiff in a civil action, the responding motion to non-suit, or the judgment of guilt by a court of criminal jurisdiction - must be independent of the specific motives, desires, or interests of those who are engaged in the practice. In this sense legal practices are objective phenomena that embody a claim to normative correctness. As a conse- quence, participants in a legal practice must defer to its rules and speak the discourse of the legal normative system. The law allows room for considerable creative expression, but each legal practice must retain a measure of control over what counts as acting within, or fulfilling the preconditions of that practice.

III.

In other words, as a normative system, the law must possess an immanent authoritativeness: it must be in control of its own rationale

and its own aims. The law must have an integrity that is drawn from sources internal to it.8 This is required if the task of ascertaining the legitimacy of law is to be meaningful - if, that is, legitimacy is understood to be a function of what the law is, qua law, rather than what the law might be employed to do, by way of furthering some ideological project or expressing (either intrinsically or extrinsically, purposively or deterministically) specific moral, prudential, or political principles.

To speak of the immanent authoritativeness of a normative practice is to call attention to certain systemic traits characteristic of autono- mous normative structures. I will mention only two of these traits, ones which strike me as fundamental to what it means for a normative

practice, or (as in the case of law) a complex structure of normative practices, to be autonomous.

The first of these systemic traits might be called expressive com- pleteness. A practical discourse is expressively complete just in case it

Though by speaking here of the "integrity" of law I am relying in part on Ronald Dworkin's discussion in his Law's Empire (1988) - but see as well, Bernard Williams in Utilitarianism For and Against (1973) - I do not thereby wish to align myself with his account of law.

297

This content downloaded from �������������75.89.149.244 on Sat, 07 Jan 2023 04:00:05 UTC�������������

All use subject to https://about.jstor.org/terms

298 Jerome E. Bickenbach

can satisfy our need to name or otherwise describe the objects of the normative universe of discourse. Such a discourse will be sufficiently rich to comprehend, however controversially, all forms of human conduct, governmental activity, or other event, thing or text we are concerned to assess or evaluate in terms of the normative system. The expressive resources will be sufficient to express not only our agree- ment, but also our disagreement. We need expressive resources not only to express a consensus but also to be able to identify a breakdown of consensus as a disagreement rather than a clash of incommensurable discourses.

With an expressively complete discourse it is unnecessary to retreat to some other normative system in order to express agreement or disagreement, or to settle a dispute apparently irresolvable within the discourse itself Controversy will remain since no normative system could possibly anticipate, and resolve in advance, borderline cases. But an autonomous normative system must have the expressive capacity to identify such problematic cases, and, more importandy, to identify them as problematic.

Secondly, an autonomous normative system must be internally and transparently rational. The normative system must be internally rational in the sense that, whenever it articulates a demand, obligation, or judgment each of these normative standards can in principle be linked to the aims and basic norms of the normative discourse. Thus, a

normative system will be internally rational when it can generate - wholly within its discourse - a consistent set of reasons sufficient to justify the standards it articulates, and in particular the obligations it creates.

In addition, these reasons must be transparenty rational.9 That is, they must both justify the imposition of the standard and be directly relevant to the normative character of that which is demanded or

required. For example, the moral obligation to forbear from certain conduct is transparently justified when the reasons given for forbear- ing are identical to the reasons for thinking the conduct is wrong.

9 For the notion of "transparent rationality" see my critical notice of R A. Duff, Trials and Punishments (1988) CanadianJ. ofPhiil. 18: 765.

This content downloaded from �������������75.89.149.244 on Sat, 07 Jan 2023 04:00:05 UTC�������������

All use subject to https://about.jstor.org/terms

Law and Morality

Morality, that is, is capable of transparent rationality since its obliga- tions can be morally justified, and there is no need to appeal to some other, non-moral normative standard for a more fundamental justifi- cation.

Expressive completeness and internal rationality are two, and I think basic, necessary conditions of immanent authoritativeness. If a norma- tive system possesses these two systemic traits, then its discourse and its internal rationality will fuel transparent rationality indefinitely: at no stage in a dispute carried on within its discourse should the need arise to abandon the discourse, because it can no longer express what is controversial, or reach beyond and outside it for normative elements needed to construct a more fundamental justification.

Although I plainly cannot argue this point here, it is my contention that we have every reason to believe that the discourse of a mature legal system is expressively complete and transparently rational. Doubtless we are often tempted to retreat to the exceedingly rich and expressive discourse of morality or politics to set out in a more accessible fashion the questions raised by an issue of criminal, civil, or constitutional jurisprudence. Nonetheless, inasmuch as an issue is recognizably legal, it can be expressed in legal terms alone. Since the discourse of our law has developed over centuries and has been applied to countess cases, representing a bewildering variety of fact situations, it is, at least, not apparent that its powers of expression or its internal rationality are inherently limited. Hence, as a matter of rebuttable presumption, we have every reason to assume the opposite.

IV.

But, of course, the two traditional approaches to the problem of identifying the source of the validity of legal norms - and so of characterizing the relationship between morality and law - deny this contention. Both natural law and legal positivism, in dramatically different ways, deny that the law has an expressively complete dis- course, and both implicitly deny that the law is transparently rational and immanently authoritative.

But if the law does fail to count as an autonomous normative

299

This content downloaded from �������������75.89.149.244 on Sat, 07 Jan 2023 04:00:05 UTC�������������

All use subject to https://about.jstor.org/terms

Jerome E. Bickenbach

system in these respects, then surely there is little point in considering the legitimacy of the law. A practical discourse that lacks the power to express agreement or disagreement cannot identify, let alone resolve, contested normative claims, an obvious prerequisite of normative rationality. Similarly, a normative system that cannot be relied upon to generate reasons for or against a proposed judgment, or which will provide reasons that are not relevant to what are normally taken to be the aims or inherent values of the normative system, cannot qualify as a system that embodies normative rationality. There is, in short, no point to assessing the normative validity of such incomplete and dependent normative practices.

But there most assuredly is a point to assessing the legitimacy of the law. And the point of this project is not simply to show that existing legal norms and practices successfully manifest their intrinsically moral

character, or that these legal phenomena effectively and efficiently further social aims, or the like. Rather the point of this project - its intelligibility - is to assess the legal-normative validity of existing legal norms wholly in terms of the implicit nature of the law as an autonomous normative system.

In short, perhaps legal theorists should cease to be preoccupied with the question of whether the law is intrinsically or extrinsically related to morality and focus more closely on the law itself, thereby conced- ing to it the respect due a distinct and autonomous normative system.

Department of Philosophy,

Queen's University,

Kingston, Canada, K7L 3N6

300

This content downloaded from �������������75.89.149.244 on Sat, 07 Jan 2023 04:00:05 UTC�������������

All use subject to https://about.jstor.org/terms