Introduction
In his article In Defense of Classical Natural Law in Legal Theory, Phillip Soper attempts to reevaluate the principles of contemporary legislation. The main argument that this author makes is an extreme injustice disqualifies official directives from being a law (Soper, 202). Moreover, he believes that legislation should be based on grounded and meaningful moral judgment. This paper is aimed at critiquing the ideas expressed by Phillip Soper from the perspective of legal positivism.
The absence of universal moral standards
One of the main reasons why legal positivists support the separation of law and ethics is the absence of the universal ethical standards that are applied across countries, cultures, or communities. When Soper speaks about ethical aspects of law, he does not mention that ethics incorporate a great number of approaches that often contradict one another. In most cases, they do not give the same answers to the same questions (Perry, 38). For instance, utilitarianism can justify even immoral acts such as murder or theft provided that they improve the welfare of the community. In contrast, deontological ethics attaches more importance to the internal obligations of a person. Moreover, this philosophy places emphasis on the value of each individual. The famous utilitarian slogan, “the greatest good for the greatest number” is not usually recognized or tolerated by deontologists (Hendrick, 9).
Thus, these ethical approaches will offer very different answers about the morality or immorality of a law. Moreover, it is hardly possible that these conflicting ethical theories can be reconciled. So, one cannot ensure that even very rational people can blend law and morality. The separation of law and morality is also necessary it prevents people from misinterpreting the law. The main problem is that a judge or lawyer will have to look for the universal moral law while taking his/her decisions, and it is rather unlikely that this person will cope with this task. Most likely, this person will follow his/her intuitive understanding of moral principles. This is one of the most critical limitations in the ideas expressed by Phillip Soper. His argument implies that there is some higher moral law that is understood by every individual. However, he does not provide any sufficient evidence to support this viewpoint.
Certainly, Philip Soper attempts to show that there are moral principles that should be recognized by every individual. In particular, he points out that numerous crimes were committed by people in totalitarian states that could impose very harsh or unjust laws that ran against every ethical theory (Soper, 202). The most eloquent case can be that of Nazi Germany in which horrible atrocities were committed by people who simply followed rules. These examples suggest that law is a moral concept that should be assessed according to its merits, and not only its sources. He also adds that a person cannot always justify his/her actions only by arguing that these actions adhered to the laws of a certain state. In particular, he refers to the so-called Nuremberg principle that postulates that crimes against humanity are always to be punished by international law (Soper, 213).
Nevertheless, he does not show that there are certain imperatives that cannot be violated under any circumstances. Phillip Soper speaks about the morality of law as though every person perceived it in the same way. The problem is that in most cases, societies tend to debate the moral aspects of legal acts. For instance, there is no consensus on capital punishment; both opponents and advocates can provide different ethical reasons to support or condemn it (MacKinnon, 177). There are similar cases, for instance, the laws about abortion or same-sex marriage. These issues are still debated by policy-makers, journalists, and even moral philosophers. These cases are important because they show that people do not always assess laws in the same way. Furthermore, they illustrate that a law can be perceived as unjust, but it still remains valid. For example, the death penalty can be criticized on various moral grounds, but this legal norm still exists in many states, even democratic ones. This is why it is possible to say that positivism may be the most appropriate philosophy given that existing ethical theories can do not offer the same definition of a moral or immoral act.
It is possible to illustrate the hypothetical dangers of merging law and morality. For instance, many countries have laws or bills of rights that prohibit any violations of individual privacy or freedom of speech. Yet, a certain legislator may assume that the rights of some citizens can be violated because only in this way one can maximize the wellbeing of the entire community. Such a policy would have been based on utilitarian ethics that can justify immoral acts provided that they bring benefits to the majority. Legal positivists would have opposed this policy because such interpretation of the law runs contrary to previous legal acts adopted by the government. Therefore, by introducing ethical rhetoric into law, one can give rise to numerous violations of political rights. This possibility of this risk is not properly addressed by Phillip Soper in his article.
Moral argument and consent as inherent parts of the law
The opponents of legal positivism believe that the existence of law requires the justification of coercion. The state is supposed to explain why it has the right to use force against people who violate the norms adopted by the state. Moreover, the state is obliged to show that it acts in good faith while imposing restrictions on an individual and enforcing the norms. To a great extent, this idea is shared by Phillip Soper. In his opinion, ethical principles are inevitably embedded into legal norms. His key idea is that there has to be a justification for the existence of any law, otherwise a person may not feel morally obliged to accept legal norms. For instance, the punishment imposed on a person, who committed murder, implies that such action is condemned from an ethical viewpoint (Soper, 216). Moreover, one can reasonably assume that the majority of people agree on this principle. This argument is consistent with the principles of natural law theory postulating that are some moral judgments that are universally recognized. This author believes that moral claims of good faith are required to make a legal system valid. There is a key limitation in the arguments of Phillip Soper and many other critics of legal positivism. They suggest that the validity of legal action will require the consent of an individual and community. These people will have to recognize and accept the necessity of the rules. The problem is that in most cases, this consent is very difficult to obtain because the government will have to conduct national votes on each legal act that they intend to introduce. Thus, the legislator process can become extremely time-consuming This is why the supporters of positivism believe that a law can be valid even if it appears to be unjust to some individuals.
To a great extent, Phillip Soper supports the ideas expressed by Lon Fuller who believes that ethical neutrality of law is not fully possible (Fuller, 672; Luban, 806). It should be noted that Lon Fuller singles a distinct set of criteria that a lection act should meet. For instance, he speaks about clarity, non-retroactivity, or avoidance of asking the impossible (Fuller, 660). Nevertheless, this author does not say that law requires the consent of an individual. This is the critical point that is overlooked by the critics of legal positivism, including Phillip Soper. Furthermore, according to the author, every state that claims to be democratic has to provide some ethical or rational justification for its legislative acts. Hence, the law has to be tested against some criteria, including moral ones. The supports of legal positivism can counter this argument by saying that one individual or a group of people can criticize a legal norm and their consent will be impossible to obtain.
Finally, Phillip Soper argues that a person should not have an internal obligation to recognize and follow unjust laws. As it has been said before, a great number of laws can be viewed as unjust. Moreover, if every person accepts Soper’s ideas, the very existence of a society can be put under threat because individuals will be more willing to break the rules imposed by the state. The very existence of society is based on the idea that people recognize and adhere to some rules, norms, or principles. The entire social contract theory relies on this principle. Without it, any a society can collapse in the state of anarchism (Kelsen, 436). This is an issue that the advocates of legal positivism try to emphasize. The merging of morality and law can lead to the most disastrous results. This is the danger of rejecting legal positivism entirely. There has to be some boundary between ethics and interpretation of the law.
Laws that are accepted by the majority
As it has been said before, the opponents of legal positivism insist on the justification of law from a moral viewpoint. In the previous section, it has been shown that this is a very difficult task because one would have to receive the consent of all citizens or at least their majority. The problem is that even if the majority of people can agree on the necessity of a certain legal act, one cannot guarantee that this law will be ethical. It is quite possible that in the future it can be condemned by society. For instance, in the previous centuries slave trade was not condemned in many countries. The critics of legal positivism cannot explain how exactly one can dispute the laws that are accepted by the majority of people who possess civic rights. The key point is that even unethical laws may be considered to be valid provided that it comes from a certain authority that is regarded as a legitimate source of power by the majority of citizens. Phillip Soper’s natural law theory implies that a law that has been justified to the citizens is a valid legal norm. To some degree, this model can be regarded as a form of legal positivism. More importantly, even his legal theory cannot guarantee that laws will be ethical. Thus, there is an internal flaw in Phillip Soper’s views.
The separation of powers
The critics of positivism tend to argue that this legal philosophy completely separates law and morality. To a great extent, Phillip Soper also incorporates this argument in his article. Nevertheless, this is not a correct interpretation of legal positivism. The thing is that it primarily advocates the separation of legislative and judicial powers of law-making (Gardner, 217). This is the main distinction that legal positivists insist on. In other words, they believe that judges have to make decisions on the basis of existing legal norms, rather than their own ethical principles or values (Hart, 597). This is why one can disagree with the ideas expressed by Phillip Soper who believes that legal positive focuses only normative acts. His approach gives a very simplistic description of legal positivism.
Certainly, one cannot reasonably deny the necessity for ethical evaluation and justification of laws. The states that do not do it are more likely to autocratic or totalitarian. Furthermore, legislators cannot assume that laws are perfect only because they come from a specific authority. This viewpoint can result into the complete stagnation of the legislation system. Yet, the thing is that majority of legal positivists accept the idea that laws can imperfect or even unjust. Moreover, they do not oppose the change or abolition of some legal norms. (Gardner, 214). Yet, they only insist that these legislative acts should be changed or corrected by people who have the authority and expertise in legislation (Burge-Hendrix, 38). Provided that a norm can be questioned on ethical grounds, it can still be viewed as valid because the ethical interpretation of a legal act is not always the same. One should mention that this legal philosophy supports the premise that judges should take part in legislation and adopt rules that did not exist before (Gardner, 214; Dickson, 27). Therefore, one cannot argue that legal positivism completely disregards the necessity to evaluate the directives of the state. This is another way in which legal positivism can respond to the critique offered by Phillip Soper. This scholar does not give an accurate account of legal positivism.
Conclusion
Overall, Phillip Soper’s article has several important implications. This author emphasizes the necessity to bridge the gap between law and morality. He gives a critique of legal positivism and defends the principles of natural law theory. The author has been able to demonstrate the dangers of excluding ethical arguments from legal discussion. Moreover, he shows that moral judgments can be an inherent part of legal acts. However, it is dangerous to assume that morality or immorality of the law can be adequately assessed. Furthermore, a law may only be perceived as unjust by a group people, but one cannot say that it is irrelevant or invalid. Moreover, the justification of coercive measures that Soper calls for does not ensure laws will be just. This is why the principles of legal positivism should not be rejected by modern lawyers or policy-makers.
References
Articles/Books/Reports
Burge-Hendrix, Brian, Epistemic Uncertainty and Legal Theory (Ashgate Publishing, Ltd, 2008).
Dickson, Julie, ‘Is the Rule of Recognition Really a Conventional Rule?’ (2007) 27 Oxford Journal of Legal Studies 3.
Fuller, Lon, ‘Positivism and Fidelity to Law – a Reply to Professor Hart’ (1958) 71 Harvard Law Review 4.
Gardner, John, ‘Legal Positivism: 5 Myths” (2001) 46 The American Journal of Jurisprudence 3.
Hart, Herbert, ‘Positivism and the Separation of Law and Morals’ (1958) 71 Harvard Law Review 4.
Hendrick, Judith, Law and Ethics (Nelson Thornes, 2005).
Luban, David, ‘Rediscovering Fuller’s Legal Ethics’ (2001) 801, Georgetown Journal of Legal Ethics 2.
Kelsen, Hans, General Theory of Law And State, (The Lawbook Exchange, Ltd., 2007).
MacKinnon, Barbara, Ethics: Theory and Contemporary Issues (Cengage Learning 2010).
Perry, Stephen, ‘Hart on Social Rules and the Foundations of Law: Liberating the Internal Point of View’ (2006) 75 Fordham Law Review 20.
Soper, Phillip, ‘In Defense of Classical Natural Law in Legal Theory: Why Unjust Law is No Law at All’ (2007) 20 Canadian Journal of Law and Jurisprudence 1.
West, Robin, Normative Jurisprudence: An Introduction (Cambridge University Press, 2011).