The Moral Dilemma Of Positivism

I think there has been an advance in positivist thinking, and that advance consists of the recognition by MacCormick, a positivist, that positivism needs to be justified morally (and not just as an apparent scientific and objective fact about legal systems). But the justification that is required cannot consist in labelling "sovereignty of conscience" as a moral principle, nor in compounding the confusion by claiming that positivism minimally and hence necessarily promotes sovereignty of conscience. We need, from the positivists, a more logical and coherent argument than that. Until one comes along, I continue to believe that positivists inherently have a difficult time in dealing with moral questions once they begin by insisting that law and morality are and ought to be separate from each other. Tags: Positivism, Legal Positivism, Natural Law, Law and Morality, MacCormick (Neil) [pg43]** Not only do positivists insist upon separating law from morality, but they also appear to be unable to deal with moral questions raised by law once the two are separated. This inability stems, I believe, from their simultaneous attempt to assert and to prove that law and morality are separate; the argument reduces to a vicious circle. Neil MacCormick's lectures, "A Moralistic Case for A-Moralistic Law?" which I have been asked to comment upon, exemplifies this problem. To Professor MacCormick's credit, he has attempted to lay an explicit moral foundation for the adoption of the amoralistic positivist conception of law, something which other positivists have avoided or—in H.L.A. Hart's case—let fall implicitly between two books, one addressed to positivism and the other to morality.FN1 Professor MacCormick's grace of style and wit tend to mask the inconsistency upon which his argument is erected, and yet at the same time make it a pleasurable task for his readers, including me, to examine that argument with care. The inconsistency upon which Professor MacCormick builds his argument lies in his critique of the natural-law approach which requires, as he puts it, a two-step procedure for determining whether a given rule is to count as "law." For ease of reference and to generalize the argument as much as possible, I call these two tests the "pedigree" and the "content" tests [FN2] and I believe that Professor MacCormick would have no objection to these labels. The tests are: 1. The Pedigree Test. What Professor MacCormick calls an "institutional fact" analysis is applied to a given rule, to see whether it has in fact been generated by the constitutional processes of the legal system in question. 2. The Content Test. What Professor MacCormick calls a test of "moral justifiability" is then applied to the rule. Such a test calls for an examination of the content of the rule, judging whether it is compatible with morality. (I omit for the moment, because Professor MacCormick omits it also, the question whether the morality referred to is general morality or the morality of the person making the "test.") [pg44] These are the two tests for legal validity according to Professor MacCormick's view of natural law; that is, under natural-law theory as he views it, a rule would have to pass both tests to count as law. (Again, I put to one side a possible objection to the effect that at least some versions of natural-law theory might not insist upon the rule passing the pedigree test if it passes the content test. For instance, a rule of custom that comes up for the very first time in a contested case might be argued by the naturalist to be a valid rule of law that should determine