Ethical Positivism: a Reply for Legal Injustice

ETHICAL POSITIVISM: A REPLY FOR LEGAL INJUSTICE

Prakriti. M and Keerthna. G[1]

Abstract:

The term ‘ethics’ is usually described as ‘duty’ and ‘obligation’ but when it comes to the legal aspect these are less fundamental than ‘values’. Though, this comparison is yet to be recognized by individuals or societies which run on a predesigned set of rules and practices which are unquestioned. The legal studies have now reached a point where it is a critical requirement of the hour to determine the basis of ethical positivism and provide the term a well-defined meaning which is derived after careful analysis of the said requirement. Austin put the concept in rather simple terms while the dominant view among the analytically inclined philosophers of law is contradictory stating it is a subject of more competing interpretations along with persistent criticisms and misunderstandings.

It’s a well-established fact that legal concepts are not one to be understood by layman and thus learned professionals are trained in order to understand and execute it. It’s high time the concept of ethical positivism be turned into the basis for explaining certain concepts of law and hence answers all the criticisms and misunderstandings.

Keywords: legal norms, ethical positivism, values, duty, obligation.

INTRODUCTION

"In civilized life, law floats in a sea of ethics - Earl Warren"

Philosophy of law is a study which concerns with providing an overview of a general philosophical analysis of law and legal institutions. The issues dealt with under this subject range from the nature, scope and objectives of law to the legal systems and practices to the general questions about the connection between law, morality and values along with a justification for various legal institutions.

In order to simplify the study of legal philosophy, they are roughly divided into three categories namely; Analytical Jurisprudence, Normative Jurisprudence and Critical Theories of Law.

Analytical Jurisprudence, as the name suggests entails providing an analysis of the essence of law to give an understanding of what differentiates it from the other systems and norms, such as Ethics. This includes the Natural Theory, Legal Positivism and also Ronald Dworkin’s Third theory.

The Natural Theory elucidates the necessity of a positive relation between the concepts of law and the social morality. Summarizing the theory, in short, we can say that according to this theory that the concept of law cannot be completely articulated without referencing or consulting the moral notions.

Legal Positivism on the other hand, which is opposed to all forms of naturalism, is roughly constituted by three theoretical commitments: (i) the Social Fact Thesis, (ii) the Conventionality Thesis, and (iii) the Separability Thesis. The Social Fact Thesis (which is also known as the Pedigree Thesis) asserts that it is a necessary truth that legal validity is ultimately a function of certain kinds of social facts. The Conventionality Thesis emphasizes law's conventional nature, claiming that the social facts giving rise to legal validity are authoritative in virtue of some kind of social convention. The Separability Thesis, at the most general level, simply denies naturalism's Overlap Thesis; according to the Separability Thesis, there is no conceptual overlap between the notions of law and morality.1

And the last theory under the analytical jurisprudence is the Ronald Dworkin’s Third theory which has rejected both the above said theory on grounds that there are certain technicalities and complications in the legal process. He tries to convey that the legal process is much more complicated than portrayed under the other theories and that there are certain rules and regulations which are mandatory and should not be tampered with. Hence he concludes by saying, “if we treat principles as law we must reject the positivists' first tenet, that the law of a community is distinguished from other social standards by some test in the form of a master rule”.2

Normative jurisprudence, deals with the study of normative, evaluative and prescriptive issues which are commonly faced when it comes to law. These include Freedom and the Limits of Legitimate Law, Obligations to Obey the law and the basis of punishment i.e. justification of the punishments.

Freedom and Limits of Legislative law refers to the restrictions imposed by laws to contain human autonomy and for the benefit of the society and to maintain peace. These cannot be questioned by anyone and are rules that ought to be followed by all irrespective of their position in the social chain.

Obligations to obey law and Justification of Punishment are interlinked in a way. It is the duty of the people to follow and obey the law. In case, any disobedience is caused the consequences can be catastrophic i.e. punishment encrypted under the law. The punishments are allotted depending on the intensity of the crime from one of the five categories namely; Retributive, Deterrent, Preventive, Rehabilitation and Restitution.

Finally the Critical Theories of Law, which as understood by the name is a critical analysis by various jurists of the legal methodologies, legal policies and the legal studies itself on the whole. It began with the Legal Realism/Realist Movement which was inspired by John Chipman Gray and Oliver Wendall Holmes and was carry forwarded by the works of Karl Llewellyn, Jerome Frank and Felix Cohen.

The critical Legal Studies aims at expanding the interpretation of the ideologies which contribute in shaping of the legal concepts and have a wider meaning for the legislature which not only satisfies the professionals of law but also the profession of law and its objectives.

This paper deals with the concept of Legal Positivismwhich is discussed under the Analytical Jurisprudence. According to positivism theory, law is something that is prescribed, decided, practiced and tolerated or in simple words can be called as a orderly constructed mould of legal norms and aspects keeping moral values or ethics in mind. But in reality law is much more than just moral values and ethics. Law is something that creates the ethics and keeps moral values in check. That is, law influences society just as much as the society influences law.

Legal Positivism has been a victim to various criticisms, misunderstandings and plagiarism from the start of time. Though many jurists have attempted to define Legal Positivism, the famous and renowned jurist of all time Sir John Austin, a legal philosopher who has made a huge contribution to the legal world has left a prominent mark in this issue. He formulated legal positivism as: “The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry.”3

He has though not completely justified the legal process, has given a simple yet glaring meaning to the term Legal Positivism. The definition says that though the merits of law are important and the peripheral to the philosophy of law, they are not the complete basis for the existence of law.

MORAL PRINCIPLE AND AMORAL LAW

There has been a divorcement of law from morality since the rise of legal positivism. Even though legal and moral codes are interrelated and overlapping, they are coincidental. Many social actions are being outlawed by the government authorities and they are into smooth functioning even if they're morally wrong.

The concept of Legal Positivism has been criticised at many levels on the basis that it does not give morality the importance which it ought to be given. Legal positivism is a subject that has drifted from the legal theory. Now a days, people are always looking for a practical solution which has in abolished the initial divine and moral approach of law. Even though years have been spent in trying to make man understand the moral values and principles, the modern law systems are not intended to seek redemption from moral values.

The moral principles of law are nothing but "natural law" and natural law is an ambiguous term. It claims to explain two independent theories i.e.; the moral theory and the legal theory. Moral theory or morality in general is used to keep an eye on the role of legal norms, that is, to determine the authors of the legal theory in practice. St. Thomas Aquinas, for example, identifies the rational nature of human beings as that which defines moral law: "the rile and the measure of human acts is the reason, which is the first principle of human acts". On this common view, since human beings are by nature rational evenings, it is morally appropriate that they should behave in a way that conforms to their rational nature. Thus, Aquinas derives the moral law from the nature of human beings, thus "natural law".

As a response to legal positivism Ronald Dworkin proposed his so called "third theory". According to law as integrity, proposition of law are true if they figure in or follow from the principles of justice, fairness and procedural due process, which provide the best constructive interpretation of the community's legal practice. Positivism is different from law as integrity because it rejects consistency in principle as a source of legal rights. Positivism does not consider the law as having an integral life of its own. Positivism will present the law as comprising of a set of discrete decisions, which judges have the discretion to make or amend.4

In the modern time, breaking law has become a trend due to their intolerance and lack of patience. Malice, laziness, convenience, to name a few is some of the factors due to which people break the law. Another not excusable but acceptable reason for why people break the law is ignorance .i.e. people are unaware of their rights and are not informed about the protections they can avail or are entitled to under the law. They are oblivious to the legal norms and procedures that are available to them in the society.

But there are a few people in the society who are well aware that a certain act is morally wrong and yet perform it since it is legally right. On the other hand there are cases where the conflict between morality and law are questionable, for example, feeding pigeon is illegal in some countries which are actually morally right. Here the conflict is illogical since there is no real harm in feeding pigeons.

While this moral stance is generally a justification of and not the impetus for the illegal act, it is nonetheless an example of the way in which people cast their relationship to the law in ethical light. People in these circumstances break laws as a way of acting out against what they see as governmental morality, and to make a statement of what they think is right.5

Positivists, as they call themselves have over the years come up with three main arguments for determining the extent to which social sources are to be considered.

First, most of the vital and major decisions when it comes to legal aspect is taken with reference to social morals. For example, while appointing a member of the judiciary their legal knowledge is not the sole ground but also their morality and political background is checked. Morality is a requirement and cannot be abandoned.

Second, although law claims to be perfect or as a legitimate authority it may fail at times by being unjust, pointless and ineffective. Law cannot be called the ultimate legitimate authority as it is influenced by political practices Consider an example. Suppose we agree to resolve a dispute by consensus, but that after much discussion find ourselves in disagreement about whether some point is in fact part of the consensus view. It will do nothing to say that we should adopt it if it is indeed properly part of the consensus. On the other hand, we could agree to adopt it if it were endorsed by a majority vote, for we could determine the outcome of a vote without appeal to our ideas about what the consensus should be. Social sources can play this mediating role between persons and ultimate reasons, and because the nature of law is partly determined by its role in giving practical guidance, there is a theoretical reason for stopping at source-based considerations.

Third, is the challenges underlying the idea of inclusive positivism or as it may be referred to as The Midas Principle .i.e. just like everything King Midas touched turned into gold, everything law touches becomes a law or enhances legality.

In other words it can be said that Law is an open normative system which adopts and enforces moral norms and social policies to ensure social welfare and peace. But this idea can also be used in a negative way as law is available to every citizen and every citizen has a right to enhance the law and question the norms.

ADJUDICATION AND ETHICS

Adjudication has to be unbiased, just and should follow the regulations prescribed by law, this is the usual criteria for a perfect judgement but there are certain exceptions that need to be reviewed. The judges should have the knowledge and power to interpret the law in accordance to the circumstances. And the law made, judgement given should have moral values so that it is not biased, moral values doesn't need legal norms and legal norms doesn't need moral values but there's a necessity for both of them to co-exist in the society in order to recapitulate an issue.

While learning the concept of Interpretation of Statues it is clearly instructed that though the judges don’t have the ultimate authority they do have a minimum jurisdiction or power to interpret as required by the scenarios present before them. Certain crimes are so hideous that it calls for a diversion from the actual meaning prescribed by law and adapt a new meaning.

Dworkin believes adjudication is and should be interpretive: "judges should decide hard cases by interpreting the political structure of their community in the following, perhaps special way: by trying to find the best justification they can find, in principles of political morality, for the structure as a whole, from the most profound constitutional rules and arrangements to the details of, for example, the private law of tort or contract" Ronald Dworki.6

There are, then, two elements of a successful interpretation. First, since an interpretation is successful insofar as it justifies the particular practices of a particular society, the interpretation must fit with those practices in the sense that it coheres with existing legal materials defining the practices. Second, since an interpretation provides a moral justification for those practices, it must present them in the best possible moral light. Thus, Dworkin argues, a judge should strive to interpret a case in roughly the following way:

“A thoughtful judge might establish for himself, for example, a rough ‘threshold’ of fit which any interpretation of data must meet in order to be ‘acceptable’ on the dimension of fit, and then suppose that if more than one interpretation of some part of the law meets this threshold, the choice among these should be made, not through further and more precise comparisons between the two along that dimension, but by choosing the interpretation which is ‘substantively’ better, that is, which better promotes the political ideals he thinks correct.”7

Hart distinguishes three types of secondary rules that mark the transition from primitive forms of law to full-blown legal systems: (1) the rule of recognition, which ‘specifies some feature or features possession of which by a suggested rule is taken as a conclusive affirmative indication that it is a rule of the group to be supported by the social pressure it exerts’; (2) the rule of change, which enables a society to add, remove, and modify valid rules; and (3) the rule of adjudication, which provides a mechanism for determining whether a valid rule has been violated. On Hart's view, then, every society with a full-blown legal system necessarily has a rule of recognition that articulates criteria for legal validity that include provisions for making, changing and adjudicating law. Law is, to use Hart's famous phrase, "the union of primary and secondary rules".

According to Hart's view of the Social Fact Thesis, then, a proposition (P) is legally valid in a society (S) if and only if it satisfies the criteria of validity contained in a rule of recognition that is binding in S. As we have seen, the Conventionality Thesis implies that a rule of recognition is binding in S only if there is a social convention among officials to treat it as defining standards of official behaviour. Thus, on Hart's view, "rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behaviour by its officials”.8

Each conflict is to be treated by considering the competing obligation and overlapping framework of ethics and law. Adjudication is necessary and important, however, in the current scenario along with adjudication there is a necessity for maintaining certain basic ethics and principles which are vital to maintain social welfare.