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Published online by Cambridge University Press: 09 June 2015
In my article “Legal Positivism and Natural Law Reconsidered” I suggested that we might be able to effect an interesting reconciliation of legal positivism (LP) and natural law theory (NL) by distinguishing two possible LP-NL debates. In particular, I suggested that we should distinguish, within legal philosophy, between theories of legal validity – that is, accounts of the existence conditions for valid law and theories (as I now would put it) of legal interpretation – and theories of adjudication – that is, accounts of how judges should decide cases. We can use this distinction to formulate two possible LPNL debates, one involving legal validity (LP1-NL1) and one involving adjudication (LP2-NL2). NL1 asserts and LP1 denies that the existence conditions for valid law and the theory of legal interpretation ensure that legal standards satisfy true or sound political morality to some significant extent. NL2 asserts and LP2 denies that the content of the correct or justifiable judicial decision must satisfy true or sound political morality to some significant extent. I sketched my own view of the relevant details of the theories of legal validity and adjudication and argued that these claims seem to vindicate LP1 and NL2 and so to allow a kind of reconciliation of LP and NL.
1. Brink, David O., “Legal Positivism and Natural Law Reconsidered” (1985), 68 The Monist 364.Google Scholar Some of the themes in this article are developed in Brink, David O., “Legal Theory, Legal Interpretation, and Judicial Review” (1988), 17 Philosophy & Public Affairs 105. Parenthetical references in the text to these two articles will be by year of publication and page number.Google Scholar
2. Though Bogart appears lo agree that LP is true as applied to this theoretical account of legal interpretation, 1 did (and still do) take this claim to be controversial. In particular, I spent some time arguing that the role that this account of legal interpretation assigns to moral and political theory is perfectly consistent with LP(1) (1985: 370–76; cf. 1988: 129–33).
Bogart suggests at one point that I am perhaps mistakenly led to sympathize with NL, because 1 fail to notice how LP can accommodate the fact that moral standards can become part of the law through enactment of first-order legal standards (e.g. constitutional provisions or statutes) incorporating explicit moral or political language (e.g. as the Fifth and Fourteenth Amendments do through their Due Process clauses). This diagnosis is mistaken. In defending LP1 1 explicitly allow for this sort of contingent connection between legal validity and moral content (1985: 370–71), and my case for NL2 rests on features of judicial obligation and has nothing to do with the possibility of laws whose language has moral content.
3. However, I can’t resist a little defensive quibbling. Bogart thinks that inferring the legal status of second-order standards from their role in legal interpretation leads to all sorts of unacceptable results. For instance, he thinks that this reasoning commits me (a)to regarding all elements of the interpretive process (e.g. principles of science and logic) as legal standards and (b)to regarding moral and political principles underlying first-order legal standards as themselves legal standards. But 1 find nothing objectionable about being committed to (b), and I deny that I’m committed to (a).Regarding (b), it seems perfectly acceptable theoretically to claim, say, that racist political principles are part of the law of legal systems containing racist statutes and that whatever principles of liberal political theory that underlie the U.S. Constitution are part of the law in that system, (a)seems to confuse the interpretive tools we use to establish or uncover underlying purpose or rationale with that purpose or rationale. Consider an apparently analogous issue. Some people think that important themes — whose postulation is needed to make best sense of various aspects of the plot and character development of a novel — should be regarded as elements of the novel itself; this doesn’t require them to think that all the tools used to uncover these themes (e.g. modus ponens) are themes of the novel.
