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Sunday, March 27, 2005

Legal Positivism - Jurisprudence and Schiavo 

It's rare that the traditional blogosphere gets itself involved in jurisprudential debates, but the Schiavo case has led to some armchair jurisprudential theorizing that I find rather interesting. Most commenters on the case appear to agree that their is a distinct difference between the moral issues involved in making a decision like whether to let Terry Schiavo die and the legal issues involved in how that decision is made.

I'm taking Jurisprudence right now, and we've been going over the primary differences between various forms of Legal Positivism (most notably that espoused by H.L.A. Hart in his classic The Concept of Law) and forms of Natural Law Theory (most commonly in class the species espoused by Ronald Dworkin). I'm certain that Professor Leiter will correct me if I am wrong in any of the roughshod comments I make in this post.

In any event, the Positivist vision of the concept of law adheres to what is known as the "separation thesis" - the claim that law and morality are not, of necessity, bound together. In other words, the law can find validity and function without resort to moral norms.

This post is basically just a "Hey look! Something in my Jurisprudence class is actually happening in the real world - take that everyone who told me to take something 'practical' instead."

Josh Marshall, posting on the Schiavo case, says the following:
The law is not the same as morality. Law is rooted in values and moral judgments, yes. Often moral judgments are what prompt us as a society to pick up the pen again and rewrite the law. But the two are not the same. And that is precisely the point. That is the power of the law -- or one of its great attributes, what makes the 'rule of law' more than just empty rhetoric.

It is precisely because we cannot come to agreement on the most contentious and profound questions of morality that we have the law -- an agreed-upon-in-advance set of rules -- to find our way to solutions which are at least equitably-arrived-at if not necessarily moral or ones that we ourselves agree with. The alternative is a descent into public violence and lawlessness, which we are already seeing the first hints of in Florida.

There is a high public morality at stake in respecting the rule of law even in cases where we disagree with the outcomes it generates or even find them immoral in themselves.
Sounds to me like Josh, a layperson where the law is concerned (I presume), would be what is called a Hard Positivist. I deduce from his comments that he would support a strong version of the separation thesis, and given how he describes the dependence of the Rule of Law on the morality of law as anathema to public order, I suppose he would (were he to couch things in these terms) deny, as Raz does but Hart does not, that the Rule of Recognition of our society includes or may include moral criteria of legal validity.

His attitude I see throughout this discussion on the Left. I invoked the difference last night in discussing it with my girlfriend's parents. The colloquial way to invoke the separation thesis is such a situation is to say something along the lines of "well the moral aspects of this situation - which are murky and subjective - differ from the legal aspects - which are clear." In other words, the law does not depend on morality for its authority. Even more "jurisprudentially," this could be described as denying the existence of content-based criteria in the Rule of Recognition.

Sorry for studying out loud, but its rare to have a real world example dangling in front of you when taking such a theoretical course.

I noticed that Matt Yglesias had used the Schiavo case to start a discussion on philosophy, so I thought I'd add an "of law" to the end of that philosophy.

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