Authors: Kaden Blankenship, Teena Hamada, Asvika Rajeshbabu, and Alaina Walker
Mentor: Filipa Paes. Filipa is currently a doctoral candidate in the Faculty of Law at the University of Oxford.
Abstract
The intricate relationship between law and morality has captivated the minds of scholars and philosophers, fueling intense debates on the nature of jurisprudence. This research article delves into the central theories that have shaped our understanding of the connection between law and morality: Natural Law Theory, Legal Positivism, Legal Realism, and Legal Anti-Positivism. Spanning from ancient Greek philosophers to contemporary legal thinkers, each theory offers distinct perspectives on whether law is intertwined with moral principles. Moreover, this article discusses the evolution of these theories throughout history, tracing their lineage of contributors. By exploring the similarities and differences between these approaches, this paper aims to shed light on the diverse viewpoints that continue to influence legal thought and shape the ongoing discourse on the interplay between law and morality.
Introduction: The Possibility of an Immoral Law?
Throughout modern history, morality has become a popular topic for philosophers of a field known as jurisprudence. To a large extent, legal philosophers concern themselves with answering the question of What is law? As a consequence of attempting to elucidate such matters, they face a further question: Is law grounded in morality or is law a separate entity from morality?
Much discussion has taken place in answering this second question. Yet, to truly understand it, it might be helpful to look at it differently. In order to add some context, it is helpful to attend to the now famous Hart-Fuller debate on the Nuremberg Trials, in which “Hart argued that law and morality are separate from each other (...) [whereas] Fuller was of the view that there exists a deep connection between law and morality.”[1] This debate erupted because of the Nuremberg Trials, which were a famous set of court proceedings that took place in order to convict Nazi war criminals. However, one question that loomed over these trials was whether or not the Nazis had done anything legally wrong: were they following their laws or were those laws not law at all? These trials further raised the question of whether we can punish retroactively, and whether doing so creates a dangerous precedent? If someone can be punished for something that they have done in the past when it was legal, how are we to draw the line and what is the role of morality in these situations? What is the role of law and legal systems in these circumstances?
All these questions that such a turbulent time in world history gave rise to, served to give legal philosophers new force and explains the vast amount of work produced in the last century in this field. Ultimately, this moment in history made it clear that questions about the relationship between law and morality cannot be avoided. This review introduces and discusses the main theories of law that have shaped our understanding of the connection between law and morality: Natural Law Theory, Legal Positivism, Legal Realism, and Legal Anti-Positivism. Spanning from ancient Greek philosophers to contemporary legal thinkers, each theory offers distinct perspectives on whether law is intertwined with moral principles. Moreover, this article discusses the evolution of these theories throughout history, tracing their lineage of contributors. By exploring the similarities and differences between these approaches, this paper aims to shed light on the diverse viewpoints that continue to influence legal thought and shape the ongoing discourse on the interplay between law and morality.
An Overview of the Main Theories of Law
i. Natural Law Theory
Natural law is the theory that our world is governed by intrinsic values and universal morals, originating from Greek philosophy. It asserts that ethical standards are innate to human nature rather than imposed by human institutions.[2] According to natural law theory, these principles provide a foundation for objective and unchanging customs. The approach offers a bridge between ethics and law, suggesting that laws enacted by governments should observe these principles.
The origins of natural law trace back to ancient Greece, particularly scholars such as Socrates, an ancient Greek philosopher who lived around 469-399 BCE. Socrates significantly influenced the development of natural law through his philosophical inquiries and teachings. Although Socrates did not explicitly formulate a formal theory of natural law, his ideas and methods laid the groundwork for later philosophers to explore the concept. Socrates' approach to philosophy was characterized by the use of critical reasoning and the pursuit of truth through dialogue and questioning.[3] He engaged in numerous dialogues with citizens, challenging their beliefs and encouraging them to critically examine their values and actions. Through this method, Socrates sought to uncover objective truths and universal principles that governed human behavior and ethics.[4] One of his key contributions to natural law was his emphasis on the importance of moral virtue and knowledge of the good. He believed that all human beings possessed an innate sense of moral knowledge and that by examining their beliefs and actions, they could understand and align themselves with these inherent principles.
Socrates further argued that an individual's moral knowledge should guide their actions and that the pursuit of virtue and the good life was the highest aim of human existence. This emphasis on the significance of moral character and virtuous conduct in leading a fulfilling life became a central theme in many natural law theories that followed. Socrates' philosophical legacy influenced later thinkers such as Plato and Aristotle, both of whom further developed and expanded on his ideas. Plato's Dialogues, for example, explored the concept of the "Forms" or "Ideas," which were considered abstract representations of reality. These Forms were seen as the ultimate sources of truth and morality, serving as a precursor to natural law.[5] Aristotle, another disciple of Socrates, developed a comprehensive ethical system that emphasized the cultivation of virtues and the pursuit of eudaimonia (flourishing or well-being). His works, particularly "Nicomachean Ethics," became influential in the development of natural law theories, with his emphasis on human nature and rationality as a basis for ethical principles.[6]
Despite these early influences, natural law theory gained much of its reputation due to the work of Thomas Aquinas and John Locke. Aquinas’ Summa Theologica provided a theological framework for natural law theory.[7] Locke expanded on the concept and emphasized individual rights through his social contract theory in 1689.[8] His ideas on natural law were instrumental in shaping the foundations of modern political thought. It became noteworthy in the Middle Ages, but a shift in legal theories occurred in the Enlightenment era of the 17th and 18th centuries, as Enlightenment thinkers challenged the notion of natural law. David Hume and Immanuel Kant shifted the focus from relying on inherent moral principles to human autonomy, empirical observation, and rationality.[9] The shift in law theories was driven by historical events leading to societal changes.
The Age of Enlightenment brought many transformations due to occurrences such as the American and French revolutions, which aimed to establish new legal and political systems based on human rights and individual liberty, straying away from natural law. These events guided a reevaluation of the traditional understandings of natural law, paving the way for the emergence of new theories such as legal positivism and legal realism.
While natural law theory has been influential in shaping ethical and legal thinking, it also faces criticism and ongoing debate in its attempt to provide a comprehensive framework for human morality and behavior. One major critique revolves around its assumption of universal moral principles that apply to all cultures and societies, as this clashes with the idea of cultural relativism. Cultural relativists argue that morality is relative to individual societies, shaped by their unique norms, customs, and beliefs, challenging the notion of universally applicable natural law.[10] Another criticism centers on the difficulty of determining the specific content of natural law principles. Unlike positive law, which can be explicitly written and codified, natural law is often considered abstract and open to interpretation. Different philosophers have proposed various sets of moral principles, leading to potential conflicts and ambiguities in their application. For example, John Finnis' seven common goods (life, knowledge, friendship, play, aesthetic experience, practical reasonableness and religion) outline key aspects of a good life.[11] While some moral theories propose universal moral principles that apply in all situations, Finnis’ “seven common goods'' framework recognizes that the application of these goods may vary depending on the context and cultural factors, allowing for a more flexible and adaptive ethical approach.[12] Still, this lack of consensus raises questions about the practicality and reliability of natural law as a moral guide.
What is now known as the "is-ought gap" poses another challenge to natural law theory. This philosophical idea, first introduced by Hume, raises the question of whether one can derive normative statements (“ought”) solely from descriptive statements about the world (“is”).[13] Critics argue that simply observing the way things are in the natural world does not necessarily provide us with moral guidance on how things should be. Additionally, the incorporation of a higher moral order, often linked to religious conceptions such as God, has been a subject of contention. While some versions of natural law theory rely on the idea of a divine being or a supernatural source for these moral principles, critics argue that such attributions raise questions about the source and nature of that higher order. This can create challenges for those who do not share the same religious beliefs, leading to conflicts in accepting and applying natural law principles universally.
Further, critics contend that natural law arguments can become tautological or circular, lacking substantive moral reasoning. For example, stating that something is good because it is in accordance with natural law, and natural law is good because it aligns with what is inherently good does not offer a compelling basis for moral evaluation. The circularity of such arguments weakens the validity and persuasive power of natural law as a robust ethical framework. Indeed, it cannot be forgotten that there are instances when natural law conflicts with positive laws established by human societies and governments. In such situations, individuals may face dilemmas about which set of laws to adhere to when they clash, leading to questions about the legitimacy and practicality of natural law as a guiding principle in legal contexts.[14]
Among various legal theories, natural law theory is considered the most closely aligned with morality. Natural law theory has a significant relationship with morality as it proposes that there are innate and objective moral principles that exist in nature and govern human behavior. This theory declares that certain actions are naturally right or wrong, regardless of cultural or societal differences, and individuals can discover and understand these moral truths through observation. The connection between law and morality, according to this theory, lies in the idea that there is a higher moral order in the world, accessible to all human beings. For natural lawyers, moral principles are not simply arbitrary rules imposed by human institutions; rather, they are rooted in the very essence of reality and human nature itself.[15] For instance, a natural law might suggest that protecting innocent lives, being truthful, and promoting justice are moral imperatives because they align with the inherent good and order of the world. The concept of natural law also provides a basis for ethical decision-making. It serves as a guide for individuals to understand their moral obligations and responsibilities, helping them distinguish what actions are in accordance with universal moral principles. Advocates of natural law argue that aligning one's actions with these objective moral truths can lead to human flourishing and the pursuit of a good life.
ii. Legal Positivism
Legal Positivism has taken many shapes throughout the years starting with classical legal positivism, which can be traced back to the works of Thomas Hobbes and Jeremy Bentham.[16] In its infancy this theory of law included a materialistic conception of nature, similar to natural law, unlike contemporary legal positivism.[17] Nowadays, legal positivism rejects nature in its theory and its central figures have changed.
In recent times, the figures of reference within this school have been Hans Kelsen, John Austin, and H.L.A. Hart.[18] In particular, H.L.A. Hart, whose book The Concept of Law has been lauded as one of the most important works in legal philosophy and gave new force to legal positivism. Yet, despite finding themselves in the same school of thought, it must be noted that these theorists disagree with each other, and have not provided the same answer to the central question of “what is law?” The reason they are all proponents of legal positivism is that they all stand by one essential idea: ‘the thesis that the existence and content of law depends on social facts and not on its merits’,[19] as articulated by Leslie Green. By ‘merits’ what Green has in mind is the question of whether a law is good or bad in a moral sense.[20] In short, legal positivists believe that there is no necessary connection between law and morality.
In short, legal positivists believe that individuals only have to follow explicitly stated laws, those which have been ‘posited’. While the main idea of legal positivism as a theory is that law and morality are separate, positivists do recognize moral norms to be valid if the source behind it is from “divine commands or in social conventions”.[21] This essentially means as long as the moral norms are not subjective they can be given recognition, but it does not entail that positivists hold the belief that morals necessarily have a place in law.
As previously stated, the philosopher H.L.A. Hart made a very substantial contribution to Legal Positivism to the extent that his theory provides the foundations for the contemporary version of this theory. Putting it succinctly, his theory consists of two claims; first, “the validity of legal rules is strictly a function of their recognition by law-applying institutions according to criteria established by the system’s rule of recognition” and second, “the rule of recognition exists, and has its status as a rule, strictly by virtue of the fact that it is practiced by law-applying officials”.[22] Courts along with other law-applying institutions replaced the importance given to legislative institutions. Legislative institutions had a way of using coercive force and this "gave way to theories emphasizing the systematic and normative character of law".[23] Additionally, Hart “argued that all (modern or mature) legal systems have secondary rules- rules about rules, rules that allow for some identification, modification, and application of ‘primary rules’”.[24] Hart’s argument shows that legal positivism is focused on rules, and that more rules are built upon these for a just society. He encompasses the main idea of legal positivism, focusing on rules and facts rather than morals.
This main idea does not dismiss morals altogether though; the division is not as literal as keeping the church and state separate. As a matter of fact, legal positivists “through the ages have classified moral principles as law”.[25] In fact, legal positivists believe that morals can set the grounds for creating laws.[26] Morals are seen everywhere in the law, and positivists do not reject it. A good example of this are laws that prohibit sex discrimination: individuals believed discrimination based on sex was immoral and created laws prohibiting it.[27]
To understand what Legal Positivism is, it might be helpful to understand what it is not, as there are many misconceptions about this theory. For example, legal positivism does not support the idea of only self-satisfaction/achievement in judicial decision making and legal interpretation.[28] In other words, positivists believe judicial decisions and legal interpretation should be made with the intention to help the people rather than establishing oneself. Another misunderstanding of this theory is the idea that legal positivists are overwhelmingly willing to follow unjust laws; the idea that for legal positivists whatever is a law is a law, whether it is good or bad.
Legal Positivism is constantly at odds with other legal theories. Moreover, it is contested within itself, as its core principles are constantly disputed among philosophers. For example, though in general legal positivists strongly believe that norms should not be considered as necessarily amounting to laws, those who are called more “soft” or “inclusive” legal positivists, make an allowance for norms to be valid based on their merits if, and only if, “other legally valid norms happen to pick out those merits as relevant to legal validity”.[29] The past decade has been a significant time for the expansion of legal positivism and the theory is still developing, and as it expands, more theorists give their input, including criticisms and concerns. This has led some theorists, such as Jeremy Waldron, to state that “these analytical discussions tend to be flat and repetitive in consequence, revolving in smaller and smaller circles among a diminishing band of acolytes”. Moreover, William Twining described debates among positivists as “repetitious, trivial, and almost entirely pointless”. Overall, the growing expansion of this theory is a blessing and a curse as it both welcomes believers and criticism.
iii. Legal Realism
‘The law is what the judge had for breakfast’ is a common turn of phrase amongst those who study the law, and one which to an extent represents the skepticism realists have with regard to the question of whether judges will bring their personal biases into the courtroom and judicial decision-making.[30] Indeed, realists question whether law truly derives from public policy and prevailing social issues rather than from legal syllogisms (as previously held by legal formalists). Legal Realists explore this idea by theorizing that court cases are decided by judges who consider public policy, social issues and abstract rules when deciding a court case.
Legal realism developed in the late 19th century and has continued to grow since then, finding particular traction in the U.S. during the 1930s, where it remained influential. Nowadays, it is rare for a lawyer to graduate from an American law school without taking at least one class in legal realism and the philosophy is embedded into the American legal system.[31] Legal Realism in America has since its inception been split into two separate factions, the left-wing and the right-wing factions, which makes criticizing the movement as a whole difficult.[32] As Jones put it, “American legal realism is not a systematic philosophy of law but a way of looking at legal rules and legal processes”.[33] Still, this philosophical movement is bound together by similar deductions in reasoning and patterns that arise from social issues and the courts’ response to those social issues.
To begin with, Legal Realism puts the emphasis on the decisions made by the courts and the pragmatic aspect of law and legal practice. Indeed, often, lawyers who use this theory advise their clients to try and settle the issue out of the courts, due to a concern that the judges will hold onto their biases and let go of the ideal of legal certainty, thus hindering lawyer’s ability to predict the outcome of a court case on the basis of past decisions of a similar nature.[34] Realists also find it particularly revealing that while the language of a law remains the same, it can be bent in a plethora of different manners, leading to wildly different outcomes.[35] Often, the language that is used in the law allows for a multitude of interpretations, which makes predictions of cases almost impossible. Further, Legal Realists do not often trust that the courts will withhold their personal alignments, beliefs and biases from the court case and as such, are skeptical of the court system as a whole.
Legal Realists hold the belief that the law should follow the scientific method or that it should be easy to determine fact from fiction within the law, but are skeptical of whether this belief is one that those within the court system, i.e. judges, also hold. According to Christopher Langdell, the Dean of Harvard Law School after World War II, law should be established as one of the specialized disciplines and it should be categorized as a school of scientific thought in its own right; he thought that the task of a legal scholar was like that of a natural scientist, to transform the disordered data found in judicial decisions and make it accessible to the general public.[36]
Legal Realism originated as high-level jurisprudence that held deep connections with philosophy as a whole, created as a natural academic response to a crisis that occurred in the early 20th century concerning the legal system.[37] Due to this, Legal realism is an ideal that is almost unachievable as, according to this theory, every court suffers from personal biases, prejudices, and takes into account conscious and unconscious interests and personal philosophies.[38] By adding wild theories and abstract ideas into the law, through precedent, theories, debates and court cases, the ideal that realists have built upon, where the law is purely scientific in nature, is unveiled to be something that is ever-changing and wild, like nature itself. Human nature is what leads to the changes in law, as the law adapts to fit new social structures and societal beliefs into the pre-established mandate, creating an opening for grand theories.
All this reveals the way in which legal realists approach law: with skepticism and a pessimistic outlook on the court system and judges. One cannot be a realist without being conscious, as judges and critics of judges, that the business of judgment is to decide the way that people and their relations are affected by the issue presented before the court.[39]
Legal Realism holds further ties to theory and establishes itself as a school of thought through the lens of comparison between Scandinavia and the United States of America. While the two schools of realism differ greatly in terms of one subject, their ideals align as well. Property is the area upon which these two schools of realism diverge, as American Realists discuss property at length and quite often within their theories, whereas Scandinavian Realists almost never discuss property, unless in purely conceptual or analytical debates.[40] The Americans, on the other hand, discuss property in a social manner and as a legal institution, as something that holds political, economic and social value.[41] This is further echoed by the comparison between the British and American legal systems. In America, judges tend to take a case-by-case approach to every court case and examine the law through reference to policy and identify gaps in the law, while the British system identifies problems within the law and use historical evidence and precedence to decide court cases.[42]
Morality, in terms of Legal Realism, is dependent on what is good, legal and fair in the perspective of the individual. But what is the definition of good and evil and how are these terms decided? How do people determine what is good, righteous and moral and what is not? And how are these terms assigned to law? By exploring Nietzsche’s philosophy through the well-known slogan: ‘beyond good and evil,’ Leiter shows the difficulties in identifying what is to be classified as ‘good’ and ‘evil’, an issue that has long been subject to debate in philosophy.[43] Scholars have argued that the moral theory to be drawn from Legal Realism is “not to be found in rules and principles, or the higher law appraisal of rules and principles, but in the process of responsible decision, which pervades the whole of law in life”.[44] In this way, the moral insights arising from realist thought can be compared to the literature discussing contemporary theology.[45] In its approach to the law-morality problem, Legal Realism falls closer in line with the tradition of natural law, agreeing with their stance on morality in the law more than they agree with Legal Positivists.[46] If the Legal Realist analysis of the law is correct, then the working day of practicing lawyers and judges involves processes far less orderly and more intricate than meets the eye when it comes to assessing how fact situations and morals are to be dealt with in law.[47]
Due to Legal Realist’s defining question: “What is the law?” Many realists are left to debate morals at their own discretion. This leads to questions of where to inject morals into the law and where and when to draw the line. In the perspective of a Legal Realist, choice, decision and responsibility for a decision are central elements to the philosophy of law and, indeed, the basis of all decision-making.[48] Does this apply to morality in the law or does it subtract from it, are realists looking to apply their personal ideals to the law? The answer to that is no, as Realists are deeply skeptical about judges who do the same. So, how do Legal Realists impart their morals into jurisprudence? The answer is relatively simple, they tend to fall into line with those who agree with natural law, that people are born with a moral compass that guides moral behaviors.[49]
iv. Legal Anti-positivism
Throughout the 20th century, contemporary legal theories such as legal positivism started being developed to challenge the older, and until then widely accepted, natural law theory. This new legal theory gained much traction in the 20th century, but since then a new theory has been proposed to challenge it called Anti-Positivism. Plunkett & Sundell write that one of the main reasons for the growth of legal Anti-Positivism in contemporary law is that, in legal practice, “legal actors appeal to moral considerations about issues like fairness, equality, freedom, or justice.”[50] Legal Anti-Positivism seeks to reject the legal positivist idea that social facts are the only thing that determines the content of the law; instead they claim that both social and moral facts help to determine the content of the law.
Legal Anti-Positivism started developing when the American legal philosopher Ronald Dworkin set out to reject HLA Hart’s view that law is grounded only in social facts. Dworkin instead believed that “law should be grounded in moral integrity”, a view he first set out in his influential book Law’s Empire.[51] This encapsulates the approach that Anti-Positivists take to morality. They believe that all law is grounded in some sort of morality and that every working legal institution must use it to operate correctly. A particularly influential theorist in this school is Mark Greenberg who writes that “legal institutions take actions that change our moral obligations.”[52] Further, he says that if the job of legal institutions is to change our moral obligations, then that must mean that they are a central part of our legal system.[53]
One way to which legal anti-positivists approach morality is through the act of asking questions about the law. Steven Schaus writes that “Living in a political community makes it both possible and necessary to ask new moral questions.”[54] The only way to ensure that our legal institutions are making the right decisions is to ask these questions (e.g., ‘Are we making a morally correct decision?’) and make sure that they stay in line with the responsibilities it has. We witness all the time that the way in which judicial decisions can severely impact our life and the way we live it. Take for example, the Supreme Court decision, Dred Scott v Sandford,[55] through this decision the Supreme Court had a long-lasting effect on the morals of US citizens. Indeed, their decision that Dred Scott was to be considered ‘property’, and therefore had no right to sue, led to major controversy between the North and South at the time. Further, it changed the way that black people were perceived, eventually, becoming a root cause of the Civil War. This is just one example of many of the different judicial decisions that have had a major impact on the morals and ethics of citizens in the United States.
In order to fully understand legal Anti-Positivism and its position on morality, allow us to use an example from Greenberg’s own paper, ‘The Moral Impact Theory of Law’. The US Supreme Court was faced with a famous decision called Smith v United States,[56] in which Smith had traded cocaine for a gun. The question the Supreme Court was faced with was whether or not he was properly sentenced under a statute that provides for an increased penalty if the defendant had used the firearm in a drug related or violent crime. This is where Greenberg talks about the ‘semantic content’ of the statute and the fact that the semantic content of the statute entails that Smith was properly sentenced while the ‘communicative content’ of the statute says that Smith was not properly sentenced. The difference being one of interpretation: what falls under ‘use’ of a firearm to commit a crime? Greenberg deploys this case to show us that in this situation the Supreme Court had to figure out what was morally better when making a choice between the two competing interpretations, therefore furthering the point that morals have some relation to law.
Though a relatively new theory, some criticisms of Legal Anti-Positivism have already been laid out. The main criticism of legal Anti-Positivism is that since it is so new, it can be broken down easier than other theories. Legal Positivism has been around for much longer than legal Anti-Positivism so, it could be said that theorists from the former school have more arguments in defense of their theory. Still, one point of criticism of legal Anti-Positivism can be found in Steven Schaus’ paper, ‘How to Think About Law as Morality: A comment on Greenberg and Hershovitz’.[57] In the paper, Schaus emphasizes a major problem with their framework which is that they “need to make the distinction between legal and moral facts.” Both of them have tried to answer that problem but neither have had a sufficient answer according to Schaus. Considering the fact that both Greenberg and Hershovitz are major proponents of the Anti-Positivist theory, this problem presents a major roadblock to their work, and as Schaus argues, they needed to solve it to strengthen their arguments.
A further criticism that legal positivists have put forward against the anti-positivist school can be found in Plunkett’s work and it concerns the issue of reliability when making decisions in court. He says “there is an explanatory challenge tied to the epistemology of law” in that it is challenging to explain the reliability of the judgments people form about legal content, and “positivist theories are, in general, better equipped to deal with [this challenge] than anti-positivist theories.”[58] When explaining what law actually is, Plunkett says that positivists are better off with their theories than anti-positivists in the sense that anti-positivists still have much work to do to tighten their theory.
The Legal Theory Wars on the Role of Morality in Law
Having reviewed the main theories of law and how each deals with the question of law’s moral grounding, this article will now discuss the way in which each of the theories previously introduced differ from each other, as well as the similarities they share, with the aim of improving our understanding of the relation between law and morality.
i. Natural Law vs. Legal Positivism
As has been discussed above, natural law posits that law is derived from inherent moral principles found in nature or human reason. It emphasizes a strong connection between law and morality, suggesting that just laws must align with higher moral standards. In contrast, legal positivism, championed by figures such as John Austin and H.L.A. Hart asserts that law is a social creation and its validity is not dependent on moral considerations. According to legal positivism, a law is valid as long as it is properly enacted by a legitimate authority, irrespective of its moral content. Thus, Natural law, which is considered universal and the product of nature, differs from positive law as it is human made and an authorized legislature.[59]
The two theories also differ when it comes to the nature of social facts and the role that society and social behaviors play in the law.[60] While both theories address the concept of law and its role in society, they diverge significantly on the source of law and its relationship with morality, with natural law theory stressing the importance of morality as a basis for law, and legal positivism separating law from moral judgments, focusing solely on its formal validity.
One such advocate of abandoning Natural Law and promoter of pragmatic law was Oliver Wendall Holmes, who stated that law should be understood as a social phenomenon shaped by human experiences and evolving social values; this has led some to consider him a Legal Positivist.[61] This battle is not novel, and it is often headed by the question of whether religion should play a role in the law. As such, Positivists have a harder time forming a connection between the law and morality, as they do not believe that the two are inherently intertwined.[62] Proponents of natural law have no problem folding morals into their conclusions within the sphere of jurisprudence, as they believe that the two build and grow because of one another. This belief and reliance on religion within the way that natural lawyers view the law, however, can impede upon their ability to separate their personal biases from the law and the court, as well as make proponents of this form of law more stagnant and set in their ways. This is due to how proponents of natural law draw a lot of their ideals and theories from the intersection of law and religion, as the two are intertwined to them. Many Legal Positivists claim that appealing to natural law is authoritarian and facile, as natural lawyers utilize their tradition in ways that are purely beneficial for them.[63]
ii. Natural Law vs. Legal Realism
Legal Realism is rooted in the belief that legal officials hold biases and that judges are likely to use their own personal biases to decide court cases and make legal decisions. As such, it can be argued that Legal Realism is closer to Natural Law when one asks the morality question than it is to any other legal theory.[64] This similarity is due to their almost stagnant structure and the fact that both theories have developed based on their responses to morality within the law, but ultimately the two theories are fundamentally different. Both theories state that what the law on paper is, and what it ought to be, might differ to the extent that the answer to the latter question is what is to be recognized as law. Indeed, Legal Realism echoes this thought with its recognition of the unpredictability of decision-making and of the wide discretion existent within the life of the law.[65]
Furthermore, both Natural Law theorists and Legal Realists accept that religion can affect the law. However, Legal Realists believe that religion can affect judge’s beliefs individually and in turn affect their legal decisions, while Natural Law believes religion affects society as a whole and their views on laws.
iii. Natural Law vs. Legal Anti-positivism
Natural law and legal anti-positivism are similar in the sense that the two theories emphasize a moral foundation of laws, directly critique legal positivism, and rely heavily on one’s ability to analyze and decipher what something is, and depending on the context, whether it is right or wrong. For instance, both theories reject legal positivism's assertion that law is solely a product of human legislation and authority. Instead, they give recognition to the importance of moral principles in guiding legal norms.[66]
Despite these commonalities, they remain distinct philosophical approaches, with natural law rooted in an objective moral order whereas legal anti-positivism focuses on the moral dimension of law while acknowledging diverse moral perspectives. Indeed, natural law contends that moral principles are inherent in nature and should guide laws, whilst legal anti-positivism argues that law's validity involves moral considerations beyond mere social acceptance or state power. The key difference between the two theories is their stance on the source of law's legitimacy: natural law relies on objective, universal moral principles, whereas legal anti-positivism challenges the notion that the validity of laws is solely determined by their enactment by the government, instead suggesting that the moral and ethical aspects of law should be independently evaluated.
iv. Legal Positivism vs. Legal Realism
Legal Realism and Legal Positivism hold deep ties to each other, as they both see the law as a human, social creation. Contesting the acclaimed H.L.A. Hart, Leiter argues that Realism and Positivism are compatible and that they even work in tandem, as Realism is deeply dependent on the actions of the court, veiled in mystery and guesswork, and Positivism focuses on the analysis of the concept of law.[67] Yet, Legal Positivists hold the view that law can be understood through observation and evidence whereas Legal Realism defends the idea that law arises from unpredictable and independent thought and decisions.
A particular way in which Legal Realism and Legal Positivism differ is legal positivists’ sense of trust in the court system, from which they draw their conclusions that legal rules, societal norms and conventions are to be considered legally binding by judges, whereas Legal Realists believe that sources of law are permissive, and conclusions are drawn from factual evidence. Legal Realists and Positivists also differ in relation to the argument that positivists are more sympathetic to Langdellian formalism and realists reject such a way of looking at the law.[68] The divergence between the two theories, which can also be seen as a similarity, is to be found in the idea that legal positivism is associated with the view that social behavior and facts determine what the law is, and legal realists hold the view that law is something that is practiced and that can change according to aspects relating to the judge as an individual.[69]
v. Legal Positivism vs. Legal Anti-positivism
The main opponent of legal anti-positivism is legal positivism and though they are nearly complete opposites, there are some similarities between them. One of those similarities is that they both ask a similar question about the law. Plunkett writes that “Legal philosophers routinely state that the debate over positivism aspires to tell us what law is or the nature of law.”[70] This question is at the heart of both of the legal theories. This goes to show that they are debating over a similar idea, even if they come to hold very different views about that central question.
One of the main differences between the two theories is that legal positivists believe that moral facts are not nearly as important when determining the law as social facts are. Leiter writes that, according to this theory, “[t]here is no necessary connection between law and morality.”[71] The main idea defended by legal positivism is that social facts determine the content of the law (even if there are less extreme versions of this idea). Anti-Positivists, on the other hand, believe in the complete opposite of this, as they defend that both social facts and moral facts help to determine the content of the law.
One further crucial difference between positivism and anti-positivism is that they believe in a different system of law. Legal positivists believe in a two-system model for law and morality because it renders law and morality as two separate branches, whereas anti-positivists believe in a one-system model. In fact, the legal anti-positivist Scott Hershovitz has argued that Dworkin “should have insisted on a one-system picture, which would render law as a branch of morality.”[72]
vi. Legal Realism vs. Legal Anti-positivism
While both Legal Realism and Legal Anti-positivism are relatively new as schools of thought, they do not hold much overlap when it comes to the ideas each defends. In particular, Legal Anti-Positivism and Legal Realism differ due to Anti-Positivism holding the belief that the general theory of law holds too many false narratives, while Realism relies on facts and societal norms.
One of the main differences is that they believe in a different question about what the law actually says. According to Michael Green, “The legal realists hold that the question “What is the law?” is best understood as a request for a prediction about how judges will rule.”[73] In this way, Legal Realists defend the idea that the prediction of how a certain judge will rule is what the law, whereas anti-positivists go into the epistemological facts about what the law is and do not necessarily engage with judicial decision making at all.
The final difference between the two theories is that legal realists are approaching the law in a completely different way from the anti-positivists. According to Vividh Jain, “Legal realism is characterized as a type of jurisprudence by its emphasis on the law as it currently appears in reality, rather than the way it works in the books.”[74] Legal realism is defined as being much more realist than any of the other theories, in a pragmatic sense. Legal anti-positivism attends to law in an entirely different way, since it emphasizes much more the theoretical aspect of law and not solely how it works in reality. Overall, this difference makes the two theories not very similar at all.
Conclusion - Law's Moral Grounding
In this paper, we have discussed the main question of whether or not law is grounded in morality. First, we went over the main theories and the way in which each approaches morality in law, as well as discussed the different facets of those theories. We then turned to each of the four separate theories and presented them in contrast with each other in order to get a view of how they agree and disagree when it comes to the question of law’s moral grounding. Overall, the paper has shown that a wide range of views about how morality interacts with the law have been defended across the literature.
However, it is important to call the reader’s attention to the fact that there are further questions as to the relation between law and morality that can be asked. Indeed, Lon L. Fuller did so, in his seminal book The Morality of Law.[75] In particular, the book discusses the “morality that makes law possible”. This is different from what this article has discussed, as our focus has been on substantial morality in law. Fuller, on the other hand, focuses on formal morality. He proposed specific criteria for law in response to the moral and ethical questions that the atrocities of World War II gave rise to.
Fuller sought to provide a framework to evaluate legal systems and their ability to promote justice. The principles he set forth, which are generality, publicity, non-retroactivity, clarity, non-contradiction, constancy, and congruity, are all interconnected as they aid in the establishment of laws that endorse harmony and fairness.[76] By embodying these principles, he argues, laws become more effective in maintaining social order. Fuller's principles continue to influence legal philosophy and serve as a guiding light for lawmakers and scholars striving to create a more equitable and morally sound society. Ultimately, Fuller defended the idea that there is no way to have law without some sort of morality, which, of course, aligns with what theories such as Natural Law theory and Legal Anti-Positivism defend, but he did so by putting the emphasis in a different form of morality.
Morality within the law has been a topic of great debate for centuries, from philosophers during the Greco-Roman period to today's practitioners of jurisprudence, and how morality is classified is likely to always be a subject for debate. Even so, in some ways, morality and the law go hand in hand, as values and morals are the lifeblood of law.[77] Legislators, when creating laws often have moral principles in mind; practitioners, when they dealing with the law, have to attend to some principles of legal ethics; and Judges, when adjudicating are not working in a vacuum, but in a world in which law and morality are intertwined and co-exist.[78] For these reasons the question of how law and morality relate should give anyone with an interest in law pause.
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Murphy, "The Natural Law Tradition in Ethics", The Stanford Encyclopedia of Philosophy (Summer 2019 Edition), Edward N. Zalta (ed.), <https://plato.stanford.edu/archives/sum2019/entries/natural-law-ethics/> accessed 22 July 2023. [16] See, for example, S. Coyle, ‘Thomas Hobbes and the Intellectual Origins of Legal Positivism’ (2003) 16(2) Canadian Journal of Law & Jurisprudence 243-270, and L. Green, ‘Legal Positivism’ in E N Zalta (ed) The Stanford Encyclopedia of Philosophy (Spring 2019) <https://plato.stanford.edu/entries/legal-positivism/> accessed 15 July 2023. [17] D. Priel, ‘Towards Classical Legal Positivism’ (2015) 101(4) Virginia Law Review 987-102, 105. [18] See, for example, J. Gardner, 'Legal Positivism: 5½ Myths', Law as a Leap of Faith: Essays on Law in General (Oxford, 2012) 19-53. [19] L. Green, ‘Legal Positivism’ in E N Zalta (ed) The Stanford Encyclopedia of Philosophy (Spring 2019) <https://plato.stanford.edu/entries/legal-positivism/> accessed 15 July 2023. [20] ibid. [21] L. Green, ‘Legal Positivism’ in E N Zalta (ed) The Stanford Encyclopedia of Philosophy (Spring 2019) <https://plato.stanford.edu/entries/legal-positivism/> accessed 15 July 2023. [22] G.J. Postema, ‘Legal Positivism: Early Foundations'. In Marmor, A. (ed.). The Routledge Companion to Philosophy of Law (Routledge 2012) 31–47, 47. [23] L. Green, ‘Legal Positivism’ in E N Zalta (ed) The Stanford Encyclopedia of Philosophy (Spring 2019) <https://plato.stanford.edu/entries/legal-positivism/> accessed 15 July 2023. [24] B. Bix, ‘Legal Positivism’ in M.P. Golding and W.A. Edmundon (eds.) The Blackwell Guide to the Philosophy of Law and Legal Theory (Wiley 2005),4-5. [25] E.H. Atiq, ‘Legal Positivism and the Moral Origins of Legal Systems’ (2022) 36(1) Canadian Journal of Law & Jurisprudence, 37-64, 39. [26] ibid. [27] L. Green, ‘Positivism and the Inseparability of Law and Morals’ (2008) 83(4) New York University Law Review 1035-1058, 1037. [28] B. Bix, ‘Legal Positivism’ in M.P. Golding and W.A. Edmundon (eds.) The Blackwell Guide to the Philosophy of Law and Legal Theory (Wiley 2005), 4. [29] J. Gardner, 'Legal Positivism: 5½ Myths', Law as a Leap of Faith: Essays on Law in General (Oxford, 2012) 19-53, 21-22. [30] D. Priel, ‘Law Is What the Judge Had for Breakfast: A Brief History of an Unpalatable Idea’ (2020) 68(3) Buffalo Law Review 899-930, 899. [31] E.B. Rock, “Corporate Law Doctrine and the Legacy of American Legal Realism.” (2015) 163(7) University of Pennsylvania Law Review 2019–53, 2019-22. [32] L.L. Fuller, ‘American Legal Realism’ (1934) 82(5) University of Pennsylvania Law Review and American Law Register 429–62, 431-32. [33] H.W. Jones, ‘Law and Morality in the Perspective of Legal Realism’ (1961) 61(5) Columbia Law Review 799-809,799. [34] L.L. Fuller, ‘American Legal Realism’ (1934) 82(5) University of Pennsylvania Law Review and American Law Register 429–62, 429-31. [35] H.J.M. 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Plunkett and D. Wodak, ‘Legal Positivism and the Real Definition of Law’ (2022) 14(3) Jurisprudence 317-348. [71] B. Leiter, ‘Why Legal Positivism?’ (2009). U of Chicago, Public Law Working Paper. [72] S. Hershovitz, ‘The end of jurisprudence’ (2014) 124 Yale LJ, 1198. [73] M. Green, ‘Legal Realism’ (2020) <http://carneades.pomona.edu/2020-Law/03.LegalRealism.html#:~:text=The%20legal%20realists%20hold%20that,bad%20man's%20point%20of%20view> accessed 22 July 2023. [74] V. Jain, ‘Legal realism and legal positivism’ (iPleaders blog, 2021)<https://blog.ipleaders.in/legal-realism-legal-positivism/> accessed 30 July 2023. [75] L.L. Fuller, The Morality of Law (Yale University Press, 1964). [76] J. Waldron, "The Rule of Law", The Stanford Encyclopedia of Philosophy (Fall 2023 Edition), Edward N. Zalta & Uri Nodelman (eds.), <https://plato.stanford.edu/archives/fall2023/entries/rule-of-law/> accessed 30 July 2023. [77] R. A. Raghunada, “Role of Morality in Law-Making: A Critical Study,” (2007) 49(2) Journal of the Indian Law Institute, v194-211, 194. 194. [78] ibid.
Wow this is amazing. Hope this girl gets into Harvard. Amen!!!