The Soundest Theory of Law C. L. Ten

Unless otherwise stated, all subsequent references to Dworkin are to this

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Unless otherwise stated, all subsequent references to Dworkin are to this

round a Constitution that is formulated in terms of vague general

principles which constantly call for judicial interpretation.

Judicial activism in striking down legislation, and in giving birth

to new legal rules, operates on a scale that exists in no other legal

system. Where else, for example, can a judge declare, as only

recently an American judge has declared, that the requirement

that dogs should have licences is unconstitutional?1

But the central thesis of legal positivism is the separation

thesis, namely, the thesis that law and morality are conceptually

distinct, although they may be connected in many other ways. It

is only this thesis that I want to rescue from Dworkin's attack. I

shall begin by briefly spelling out what is involved in the separation

thesis. I shall then argue that Dworkin has not said anything to

make us doubt the truth of the thesis. Finally, I shall consider

Dworkin's own theory, and discuss the extent to which it is

compatible with legal positivism, defined in terms of the separation

thesis. My aim in this last part is not so much to oppose Dworkin

as to try to understand more clearly the character of his theory

of law.
The separation thesis states that it is possible for there to be a

valid law which is grossly immoral. In other words, the criterion

of legal validity does not have to incorporate morally acceptable

standards. On the other hand, some of those who deny the

separation thesis argue that a particular rule, to be legally valid,

must satisfy moral requirements like those embodied in traditional

natural law theory. In separating law from morality, the legal

positivist also wishes to drive a wedge between the claim that a

law is valid, and the different claim that one has a morally sufficient

reason for obeying the law. Thus in the context of a legal system

like that of Nazi Germany, legal positivists will recognize certain

morally repugnant rules as rules of law, but argue that on moral

grounds one should not obey them. Some legal positivists, like

Bentham and Austin, subscribe to a utilitarian morality, and so

for them the question of whether a law is morally acceptable, and

the question of whether we should obey the law, are to be settled

in the light of utilitarian considerations. But there is no necessary

link between positivism and utilitarianism. A legal positivist can

I .Australian Broadcasting Commission, 'News', 31 May 1978.
even, at the level of normative ethics, accept traditional natural

law theory. The natural law doctrine, in so far as it is a legal

theory as distinguished from a moral theory, consists of two

claims: (i) that there are objective principles of morality based on

human nature and discoverable by human reason; and (ii) that

all legally valid rules must not violate these objective moral

principles. It is only the second claim that is inconsistent with

positivism. Taken on its own, the first claim, which is the core of

the moral theory, can be reconciled with the separation thesis.

Historically legal positivists have rejected natural law as a moral

theory, but logically positivism ,and natural law moral theory

can go hand in unfamiliar hand.

Of course from the fact that law and morality are not necessarily

connected, it does not follow that in a particular legal system, the

criterion of legal validity cannot be a moral criterion. Thus it is

possible for a legal system to adopt the criterion that all its rules,

to be legally valid, must satisfy certain moral standards. Indeed

something like this standard enters into one of the criteria of

validity in the United States. There are certain constitutional

provisions which are clearly moral, and legislative enactments

and judicial decisions have to conform to them. But the existence of

such a legal system, with a clearly moral criterion of legal validity,

does not refute the separation thesis. The thesis merely claims

that the law of a society does not have to satisfy moral require-

ments, and not that it must not, or cannot, or does not in fact

satisfy such requirements.

Although the separation thesis concentrates on particular laws,

those who have rejected legal positivism have sometimes joined

issue with it at a different level. Thus Lon Fuller argues that a

system of rules as a whole must satisfy certain minimal moral

standards before it can properly be considered a legal system.l

So a legal system must embody certain moral values. There are

many ways in which this claim can be developed, and I shall not

explore them here. But legal positivists would wish to maintain

that a legal system of a morally evil kind can exist. It is not clear

whether Fuller would deny this. For his thesis that there is, what

he calls an 'internal morality of law' which all legal systems must

satisfy, may only involve the relatively unexciting view that

moral, as opposed to non-moral standards are a necessary part

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