| Special Workshop Title: | Legal Positivism after Hart and Dworkin |
| Author: | Wil Waluchow |
| Paper Title: | From Pre-legal Society to Constitutional Morality |
| Abstract: | Following Ronald Dworkin's sustained critique of H.L.A. Hart's theory of law, positivists have split into two camps. Exclusive Positivists proclaim the "sources thesis": that a norms's status as valid law depends exclusively on whether it has the appropriate source, e.g. in precedent or parliamentary legislation. The norm's validity is independent of its content. Inclusive positivists reject the sources thesis, arguing that there is nothing in the nature of law which rules out content-dependent criteria of legal validity. For example, it is possible that a norm's conformity with moral principles enshrined in a constitutional document could stand as a test of its legal validity. In defending the sources thesis, exclusive positivists draw on two key features of law highlighted by Hart in The Concept of Law: its claim to be authoritative and its claim to provide practical guidance. Moral tests of legal validity are conceptually ruled out, it is argued, once we fully appreciate these two essential features of law. In this paper I would like to further these debates among positivists by returning to Hart's thoughts on the move from a "pre-legal" society to one with law. Theorists who defend Exclusive Positivism tend to focus on the promised gains of such a move: e.g., the possibility of authoritative guidance. Here I would like to consider the no less important downside of law: that the very features which facilitate the promised gains increase the possibility that legally valid norms will be deeply immoral or inconsistent with what a community accepts as morally legitimate. I will argue (a) that the nature of law in no way precludes a society which recognizes this downside from imposing moral limits on its legal authorities; and (b) that, under certain conditions, there are good moral reasons for its doing so. I will further argue, (c) that there are different kinds of "moral" tests which could be adopted; and (d) that one of these, conformity with what I call the "community's constitutional morality", may provide an acceptable mix of moral protection and authoritative guidance. |
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