moreso. legal defeasibility and the connection between law and morality (1) (1)

of 22 Legal Defeasibility and the Connection between Law and Morality*PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2013.All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of amonograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: UniversitatPompeu Fabra; date: 04 March 2014

The Logic of Legal Requirements: Essays on DefeasibilityJordi Ferrer Beltrn and Giovanni Battista Ratti

Print publication date: 2012Print ISBN-13: 9780199661640Published to Oxford Scholarship Online: Jan-13DOI: 10.1093/acprof:oso/9780199661640.001.0001

Legal Defeasibility and the Connection between Law and Morality*

Jos Juan Moreso

DOI: 10.1093/acprof:oso/9780199661640.003.0014

Abstract and Keywords

One of the most important questions in recent legal positivist literature ishow legal adjudication mirrors the positivist law identification thesis, i.e.,what are the legal adjudicative consequences of understanding the natureof law in a certain way? And, particularly, whether the identification of lawdepends on moral considerations or not. This chapter defends the positionthat the identification of law can depend on moral considerations, but it neednot depend on them. It shows that this conception of the nature of law allowsus to obtain an adequate image of the adjudication of law, an image whichboth fits the legal practice and provides us with fruitful theoretical tools.

Keywords: legal adjudication, positivist law identification thesis, nature of law

I

One of the most important questions in recent legal positivist literature ishow legal adjudication mirrors the positivist law identification thesis, i.e.what are the legal adjudicative consequences of understanding the natureof law in a certain way? And, particularly, whether the identification of lawdepends on moral considerations or not. Here, I shall defend the positionthat the identification of law can depend on moral considerations, but itneed not depend on them. And I shall try to show that this conception of thenature of law allows us to obtain an adequate image of the adjudication oflaw, an image which both fits the legal practice and provides us with fruitfultheoretical tools.


The fact that the identification of law depends on moral considerations is,obviously, entangled with our understanding of the identification thesis,which is usually presented through certain versions of the so-called socialsources thesis, according to which both the existence and the content ofthe law in a certain society depend on a set of social facts, i.e. a set ofactions by the members of that society. The existence of law is not a naturalphenomenon, absolutely independent of us. The existence of law is not likethe existence of planets and stars. The truth of the statement that the Earthis round does not depend on our beliefs and attitudes; even if all humanbeings believed the Earth to be flat, it would not be true that the Earth isflat. The roundness of the Earth is a natural phenomenon. On the contrary,the existence of queues is not a natural phenomenon. In order to see a rowof human beings as a queue, we must share an institutional practice; wemust accept certain constitutive rules that define the concept of queue, andcertain prescriptive rules that attach certain duties and rights to the positionin the queue. The existence of queues is, as it were, practice-dependent.They exist, in the sense identified by Searle,1 as an institutional fact. Thus,even if in a much more complex way, legal systems also have an institutionalexistence, they are similar to queues and not to planets. It is for this reasonthat the social sources thesis seems (p.226) platitudinous: the existence andthe content of the law in a certain society depend on a set of complex socialfacts.

From the social sources thesis it is possible to derive as a corollary thefollowing thesis, which I shall call the law identification thesis (LIT):2

The determination of what law is does not depend on moral criteria orargument.

There are, at least, three ways in which it can be understood.3 Accordingto the first version, the expression does not depend in LIT is construed ascannot depend, that is, it is necessarily the case that the determinationof law does not depend on moral criteria. The second version proposesthat we read does not depend as need not depend, that is to say, it isnot necessarily the case that the determination of law depends on moralcriteria. In accordance with the third version of LIT, does not dependamounts to should not depend. In this way LIT has a prescriptive reading: itrecommends a certain way of identifying the law, a mode which presupposesthat what the law is can be identified without resort to morality.


The two first versions of LIT express two interpretations of the separabilitythesis between law and morality, a core thesis of legal positivism. In J.Colemans words:4

The two most plausible and distinct interpretations ofthe Separability Thesis can be expressed in terms of thedifference between what in modal logic is called internal andexternal negation. On the internal negation formulation, theSeparability Thesis is the claim that in all legal systems it isnecessarily the case that the legality of a norm not depend onits morality or its substantive merits. On the external negationformulation, the Separability Thesis is the claim that it is notnecessarily the case that in any legal system the legality of anorm depend on its morality or its substantive merits.

Thus, the necessary connection thesis between law and morality can berejected either by positing that the idea of the connection between law andmorality is conceptually impossible or that the connection between law andmorality is contingent. From a modal point of view, a threefold partition ofpropositions is usually assumed, these being necessary, impossible, andcontingent. As a consequence, these positions completely cover the logicalspace.5

(p.227) Supporters of exclusive legal positivism defend the first version,6 andauthors who uphold inclusive legal positivism adhere to the second.7

The third version amounts to so-called ethical (or normative) positivism.8 Itcan be said that this version conceptually accepts the second version of LIT,but normatively endorses the first version.

II

In this paper I deal with the explanatory capacity that each of the versionsof LIT has in order to shed some light on our understanding of the practice oflegal adjudication, and in the case of the third version, that of normative orethical positivism, to the extent that this version is normatively suitable.9

But before commencing the analysis of these questions, it is worth pausingto consider that our conception of the identification of law does notdetermine the answer to the question of legal adjudication; it could bethat the identification of law and the adjudication of law are quite distinctmatters. It is conceivable that someone could maintain that the law must


be identified without resort to morality and, however, still hold that judgesshould solve legal cases in accordance with morality, i.e. maintain thatjudges should put the law aside when it is in contradiction with their moralduties. David O. Brink, for instance, asserts that legal positivism and naturallaw theory should be construed as compatible and (p.228) complementarydoctrines. According to Brink, natural law theory endorses two theses: onthe one hand, the existence and content of the law depend on true or soundpolitical morality and, on the other hand, a correct judicial decision in anygiven case must satisfy true or sound political morality. Legal positivism, onthe contrary, denies both theses; this means that the existence and contentof the law do not depend on true or sound political morality and the correctjudicial decision in any given case does not need to satisfy true or soundpolitical morality. However, Brink adds that the first legal positivism thesis,the identification thesis, is compatible with the second natural law thesis,given that this second concerns what judges have an all-things-consideredobligation to do.10

If the question of legal adjudication depends on what judges should do all-things-considered, then it will be obvious thatto the extent that this is amoral questionthe answer must be making decisions which are morallycorrect.11 Given that judges are moral agents, when they make decisionsthat affect the well-being of other persons (as virtually always happensin judicial decisions), they have a moral duty to ground their decisions onmoral standards. However, this is not the question which preoccupies usconcerning the connection between the law identification thesis and legaladjudication. We are not asking what judges should morally do, but whatjudges should, in accordance with the law, do and what role morality plays(or should play) in the decisions that judges make according to law. In Razswords:12

From the fact that the question how, all things considered,should the courts decide the case? is a moral question it doesnot follow that the question how, according to law, shouldcases be decided? is a moral question.

III

It could be conceived that the first version of LIT is as follows:

[LIT1] The determination of what law is cannot depend on moral criteria orargument, requires a formalist view of legal adjudication.


According to this interpretation, the legal reasoning used in legaladjudication is technical reasoning which obeys its own rules; legal reasoningis autonomous or isolated, without any reference to moral reasoning.However, this is not the reading propounded by the defenders of exclusivepositivism. Raz, for instance, criticizes this conception as follows:13

It is a hard doctrine to sustain. First, there is the questionwhether the resources of the law are sufficient to provide theresources necessary for the courts both to obey the law and tofollow the formalist doctrine. Second, there is the difficulty ofreconciling the doctrine with legal practice. Finally, there is themoral issue: is the formalist doctrine morally acceptable?

In fact, Raz believes that formalist doctrines cannot overcome thesedifficulties: the social sources of law do not determine all the answers tothe legal controversies; it is a matter of fact in legal practice that legaladjudication often resorts to morality and the formalist doctrine is not, forRaz, morally acceptable.14

(p.229) According to Raz, it is the law identified by LIT1 which empowersjudges to apply extralegal considerations: quite commonly courts have thediscretion to modify legal rules, or to make exceptions to their applications,and where they have such discretion they ought to resort to moral reasoningto decide whether to use it and how.15 For Raz, therefore, the law is alwaysidentified in accordance with LIT1, but judges have discretion to modify it,following moral criteria, when they decide cases. By this reason, Raz divideslegal reasoning into reasoning about the law and reasoning according to law:The first is governed by the sources thesis, the second I believe to be quitecommonly straightforward moral reasoning.16

In other words, the reasoning according to law is neither autonomous norisolated but, as it were, peninsular.

IV

The second version of the law identification thesis asserts:

[LIT2] The determination of what law is need not depend on moral criteria orargument.

Therefore, according to this thesis it may be that the identification of lawdepends on moral argumentation, but it may also be that this is not the


case. Even though this question is usually associated with the possibility thatthe rule of recognition includes moral reasons as part of the very criteria oflegal validity,17 it will be sufficient, in the context of this discussion, to takea weaker incorporationist thesis into account: the familiar sources of lawlike statutes and constitutional provisionsmay include moral concepts orconsiderations.18

In accordance with this interpretation, then, when legal norms incorporatemoral concepts or considerations, the law must be identified using theseconcepts or considerations. Judges should, therefore, apply the law withresort to morality in pertinent cases.

We can now ask whether there is an actual difference here, regarding legaladjudication, between the Razian thesis of reasoning according to law andthe adjudication view of inclusive positivism. For both theories, when thelaw resorts to morality, judges should decide the cases by means of moralargumentation.19

Perhaps for this reason, it has been suggested that the controversy betweenLIT1 and LIT2, the controversy between exclusive and inclusive legalpositivism, is a definitional question, which depends on our definition of legalvalidity. In positivist legal theory, a distinction is sometimes made betweentwo senses of validity: legal validity as membership, and legal validity asapplicability. A norm is valid, in the sense that it belongs to the (p.230) legalsystem S, if and only if it is identified as a member of the system by thecriteria of the rule of recognition of the legal system S. A norm is valid, inthe sense that it is applicable to a certain case, if and only if there is anothernorm, belonging to S, which authorizes or obliges the courts in S, to applyit to such a case.20 In the context of the discussion between exclusive andinclusive legal positivism, J.L. Coleman puts the question in the followingterms:21

A better strategy relies on the distinction Joseph Razemphasizes between legal validity and bindingness on officials.All legally valid norms are binding on officials, but not everystandard that is binding on judges is legally valid, in thesense of being part of the communitys law. The laws offoreign jurisdictions, the norms of social clubs as well as othernormative systems generally can be binding on officials incertain adjudicatory contexts, though they are not part ofthe host communitys law. Judges may be authorized, evendirected, by otherwise valid rules to appeal to such principles.


They need not be part of a communitys law in order for judgesto be required to appeal to them in the context of a particularsuit. Thus, it does not follow from the fact that judges maysometimes be bound by certain moral principles that thoseprinciples are themselves part of the law or are legally valid.

In accordance with this distinction, it could be the case that a moral standardis not part of the law and, nonetheless, is binding on the courts, which haveto decide according to it. In this sense, a defender of exclusive positivismcould argue in favour of the strong reading of the social sources thesis, eventhough moral standards are, sometimes, binding on the courts.

Recently, C. Dahlman has insisted on this idea in the following terms:22

There is no conflict between the strong social thesis and theobservation that the law sometimes instructs the judge torecognize a norm as a part of the law because of its moralcontent, since the strong social thesis only concerns epistemicrecognition, and the observation that the law sometimesinstructs the judge to resort to morality concerns adjudicativerecognition.

Nonetheless, there is a way of constructing LIT1 that makes a differencewhen it is applied to the duties of judges. In standard cases, judges havea legal duty to apply the legal norms identified through the social sourcesthesis.

According to LIT1, derived from the strong thesis of social sources, whenlegal norms incorporate moral concepts, judges have discretion. Raz hasclearly expressed this view:23

Let us assume, for example, that by law contracts are validonly if not immoral. Any particular contract can be judged to beprima facie valid if it conforms to the value-neutral conditionsfor the validity of contract laid down by law. The propositionIt is legally conclusive that this contract is valid is neithertrue nor false until a court authoritatively determines itsvalidity. This is a consequence of the fact that by the sourcesthesis courts have discretion when required to apply moralconsiderations.


(p.231) If LIT1 implies that whenever the law incorporates moral conceptsor considerations judges have discretion (as Raz affirms), then there aregood reasons to cast doubts on the plausibility of that thesis. If A signs acontract with B binding himself to kill C within a month, A does not kill C, andB brings an action for breach of contract against A, no lawyer could say thatwe must wait for the judicial decision in order to know whether the contractbetween A and B is or is not valid: this contract is void because it is immoraland judges have no discretion in this case. In a similar way, what happensif a constitutional provision specifically excludes cruel punishments and thelegislature enacts a norm which attaches, as in Roman Law, the followingpunishment for parricide (poena cullei): the culprit must be drowned in aleather sack together with a cock, a dog, a serpent, and a monkey. Can wesay that this is a cruel punishment? I think that all of us would acknowledgethat poena cullei is a cruel punishment,24 and, therefore, is unconstitutional.Even though cruel is, without doubt, a moral term, it is applied withoutany controversy to poena cullei, and there is no room here for discretion.Obviously, there is room for disagreement in other cases of application ofthe concept of cruelty, the cruelty of capital punishment being the mostimportant. In any case, resorting to morality does not necessarily implyjudicial discretion.

It seems more reasonable to argue, as LIT2 implies, that when the lawincorporates moral concepts, these moral concepts must be used in orderto identify what the law decrees. Thus, contrary to Razs view, the legalreasoning in those cases is not only moral reasoning when it is reasoningaccording to law, but also when it is reasoning about the law. This iscompatible, obviously, with the fact that in some borderline cases ofapplication of this kind of concept, judges have discretion.

As is well known, Raz rejects the incorporationist thesis for reasons relatedto his conception of authority.25 This conception will not be analysed here,but I suggest that if the Razian notion of authority has such implausibleconsequences, perhaps we should try to revise it.26

I cannot deal here either with the other question relevant to the feasibility ofLIT2 or inclusive legal positivism: whether this thesis presupposes, in order tobe suitable, the thesis of moral objectivity.27

V

The third version of the law identification thesis can be expressed as follows:


[LIT3] The determination of what law is should not depend on moral criteriaor argument.

(p.232) LIT3 presupposes the truth of LIT2, that is to say it presupposes thatlegal systems can be conceived of wherein the determination of the contentof the law depends on moral argument. However, it considers that the coreof legal positivism is found in the following normative thesis: the law shouldbe written in such a way that what a law decrees can be identified withoutresort to morality. Thus, judges could apply the law in a formalistic style, onthe basis that they are able to identify the content of legal norms withoutresort to moral argumentation.

Understood in this way, legal positivism relies on a normative (political andmoral) account of the law:28

Positivist ideals relate directly to the political justification of prescriptivepositivism. The ethics of positivism are concerned with the conduct of thosewho fill the various roles within a system of government through rules:principally legislators, citizens, lawyers, and judges.

In my view, the defence of ethical (or normative) positivism can besummarized in an argument as follows:

(1) There is a pervasive disagreement on the criteria for moralcorrection.(2) In order to respect the moral autonomy of persons, we shouldgovern human conduct through clear and precise rules, which allowus to determine with certainty when certain conducts are legallyforbidden.

(1) and (2) imply

(3) If in order to identify the conduct that is legally forbidden, we must resortto a moral argument, then there will be considerable disagreement and,therefore, certainty will be sacrificed and personal autonomy damaged.

Therefore,(4) The law should be identifiable without resort to morality.

That is to say, there are normative reasons to ban the incorporation of moralconcepts and considerations in the law and to strongly recommend LIT1,from a normative point of view.

I agree with the defenders of ethical positivism that something similar tothis previous argument is part and parcel of some classical conceptions of


legal positivism and also that, even though contemporary accounts of legalpositivism are often presented as a set of conceptual theses, this argumentunderlies implicitly the majority of these versions.

Premise (1) has been clearly defended by many of the adherents toethical positivism. Tom Campbell, for instance, refers to:29 the pervasivedisagreement between members and groups within a politic regarding boththe proper ways of making and enforcing decisions which are binding in thatsociety, and the principles and goals which ought to determine the contentof these decisions. Sometimes this thesis carries the (p.233) assumptionof scepticism (as is the case with H. Kelsen and A. Ross)30 or, at least, ofrelativism in morals.31

However, it is not necessary to endorse moral scepticism or relativism inorder to acknowledge the indisputable fact of disagreement on morals. Eventhough we accept a place for objectivity in morals, we can acknowledgeextensive epistemic difficulties in determining moral rightness and, perhaps,the fact that some moral disagreements are not eradicable.

Premise (2), which insists on the importance of having clear and preciselaws, is intertwined with two worthy ideals of political liberalism: first, theideal of the rule of law, the ideal of being governed by laws, not by menand, second, the separation of powers, with an insistence on the distinctionbetween making law and adjudicating law. In Campbells words:32

In an ideal Positivist world there would be no such thingas judicial legislation, although there would always be alegislative element in rendering general terms more precise inrelation to the complexities of concrete situations. In the non-ideal world we actually inhabit judicial legislation may be thelesser of the two evils.

I do not question that premises (1) and (2) contain a certain amount of truth.However, I am arguing that (1) and (2), correctly understood, even thoughthey imply a weak version of (3), cannot allow us to conclude that the lawshould be identified without resort to morality.

Regarding (1), I wish only to offer a reminder that, even though thedisagreement on morals is extensive, it is not absolute. When the lawexcludes cruel punishments, it forbids clearly poena cullei. When the lawauthorizes the justified use of force as self-defence, it allows me to defendmyself against an attack with a knife. When the law declares void a contract


accepted through unjust coercion, it makes invalid a contract that someonehas signed under the threat to kill her child. I think that it cannot be seriouslyargued that whenever the law incorporates those moral concepts in legalnorms, judges have discretion and such cases are not regulated by law.

Thus, we must formulate (1) in a different way:

(1) There is, to a certain extent, a relevant disagreement onthe criteria for moral correction.

Premise (2), however, deserves a more detailed analysis.33 It is indisputablethat certainty is an ideal for legal regulation. Legal certainty is a value,but we should identify the reasons for certainty, in order to determinewhether they are sufficiently important to defeat any kind of reasonsagainst certainty. Most of the reasons for (p.234) conferring value on legalcertainty relate to the value of personal autonomy. One of the faces ofpersonal autonomy is related to the capacity of choosing and carrying outour own plan of life and only clear, precise, and public laws allow us tochoose and to plan our life in a reasonable way.34 But are there reasonsto carry this enlightened ideal to extremes? I do not think so, becauseI consider that personal autonomy also requires that the addressees ofrules should argue in favour of the justification of their conduct, whenthey do not follow these rules. For this reason, legal rules should, in manysituations, make it possible to have recourse to the underlying reasons(which are moral reasons) in order to apply them. In this way, for instance,criminal law treats the justifying and excusing conditions, and private lawtreats the invalidating conditions of certain civil transactions (wills, gifts,contracts, and marriages).35 A criminal law without justifying conditionswould display more certainty than our present criminal systems, but it wouldbe more unjust because our personal autonomy would be weaker. It is morerespectful to personal autonomy to allow self-defence against an attack,even though that opens the door to a less certain terrain than the easierone of determining whether an individual has injured another person ornot. Now we must determine if the self-defence was legitimate, that is, if itwas proportionate, if the attack was not the reaction to a previous unjustprovocation, etc. A private law without invalidating conditions would havemuch more certainty, but it would also be more unjust. If the contracts werenot void in the cases of mistake or duress, then it would be clearer (as thestipulatio in old Roman law) when we are under a contractual duty. Now, wemust determine, for instance, the nature of the mistake, the injustice of thecoercion, etc. In brief: honouring personal autonomy, which attaches value


to legal certainty, requires making a place for moral argument, even thoughit sacrifices certainty to some extent. In our moral horizon, there are alwaysvalues in conflict. How to fit them and weigh them is our task as moralagents. Therefore, the fact that the incorporation of moral concepts intolaw sometimes diminishes certainty should not necessarily be consideredundesirable; on the contrary, often it is the only way to make law morerespectful of our moral autonomy.

The same happens with the rules in our daily life. If I want to enjoy a morningof calm work, without being disturbed, in order to, for instance, finish thispaper, I can ask my secretary not to put any telephone calls through tome this morning. It is a clear and precise rule, but if the secretary followsit without exceptions, then it could produce ill effects: the President of theBoard of Trustees of my University, who wants to talk to me urgently, maynot be able to speak to me, or my wife may not be able to tell me that ourdaughter has been admitted to hospital, etc. For this reason, we do not wantsecretaries that apply our orders mechanically. Sometimes we formulateexplicitly the defeater, which makes the rule inapplicable: Please dontput any calls through to me this morning, unless it is very important. Thissecond rule is less precise than the first. Even though some cases are clearlyexcluded by this second rule (my wifes call, for instance), other cases posedoubts for the secretary, who should exercise judgement in order to applythe rule. However, this second rule respects my autonomy to a greaterextent than the first. Someone could still argue that it would be better toformulate a rule that includes clearly all the exceptions. However, this is notpossible: there are so (p.235) many diverse circumstances that lead to theinapplication of a rule and we cannot enclose them in a canonical formulationwithout concepts of value.

Thus, my suggestion is that the law introduces moral concepts in a wayanalogous to the example of the secretary and, with the same arguments, ina justified way. The moral concepts incorporated in the law often work likedefeaters, permitting certain conduct (self-defence) or forbidding certainregulations (cruel punishments). In my view, even if certainty is sacrificed tosome extent, our moral autonomy is defended.36

As F. Schauer has argued,37 the rules always suffer, in relation to the reasonthat justifies them, their rationale, from under- and over-inclusiveness. Away of partially preserving the advantages of being governed by rules andtaking the problem of under- and over-inclusion into account, consists ofthe incorporation of some defeaters to the rules. This means that the rule-


applying agencies have recourse to the underlying reasons in some cases, inorder to put aside the rule in cases not covered by the underlying reason. Itis clear that the inclusion of such defeaters affects the semantic autonomyof rules and, moreover, diminishes certainty. But this reduction of certaintyis balanced by a more suitable justification of the mechanism of applyingrules. We could return to the example of the secretary: if we do not includein the rule dont put through any phone calls this morning the clause unlessit is very important and we try to specify the circumstances in which therule should not apply, we will become mired in a casuistry that lead us tothe infra-inclusion: there will be circumstances not included in the defeaterand not covered by the rationale of the rules. Infra-inclusion in the defeateramounts to over-inclusion in the rule.

T. Campbell seems to be aware of these problems when he observes:38

There are problems in the inclusion of vague moral judgment-inviting terms like just and reasonable which encourageextensive judicial discretion. But while it may not be possibleto exclude these altogether, they can usually be interpreted asdisguised references to accepted standards of conduct in therules of society at the time, thus incorporating current practiceinto the law. But, in general, such legislation is undesirablyvague and ambiguous in purpose and insufficiently restrictiveof judicial legislation. It represents an understandable butregrettable passing of the legislative burden from governmentto courts.

I have two comments on Campbells remarks: first, the suggestedinterpretation of moral defeaters as just or reasonable does not seemto me very promising,39 because in most relevant cases the members of asociety will be divided on that point (and some will be rather perplexed).Then we must ask what degree of consensus is required to know whether anevaluative concept is called for. Second, following the adduced reasons, thelegislation incorporating moral concepts as defeaters does not seem to meundesirably vague and ambiguous, but rather seems to me desirable, eventhough it necessarily introduces indeterminacy to some extent.

(p.236) A recent debate on the scope of intuitionism in moral philosophymay be helpful here.40 The question is as follows: is it suitable to conceiveof morals as a set of general principles applicable to particular cases? Thegeneralists answer affirmatively and the particularists negatively. Somegeneralists not only consider that we should conceive morality as a set of


general principles, but also, given that moral properties supervene in certainnatural properties, that such principles can be formulated pointing outthe natural properties which make a human action morally right or wrong.Utilitarianism, which considers the property of increasing human well-being(or sentient creatures well-being), is an instance of such generalism, withonly one moral principle. Particularists insist on the impossibility of pointingout any natural property, which invariably maintains its contribution to therightness of human actions.

There is, nonetheless, a third possibility named thick intuitionism byMcNaughton and Rawling: this refers to non-trivial cases of general moralprinciples that incorporate necessarily thick moral properties. We canpreserve the moral principle, which obliges us to keep promises and wecan concede that the notion of promise-keeping can be spelled out in non-moral vocabulary. But this moral principle must incorporate some defeaters(usually conceived as implicit conditions): provided that ones promise isnot given under duress and is not an undertaking to do something immoral,then it supplies one with a moral reason to act so as to keep it.41 It isworth noting that we can only complete the principle by adding evaluativeconcepts: we have tried to show that there are some reasons for thinkingthat there might be plausible weak moral principles involving thick concepts,and none involving non-moral concepts.42

Thus, my suggestion is that we should conceive legal regulation in this way:there are good reasons for thinking that we should regulate human conductin the relevant cases (criminal law, private law, etc.) through clear rules thatincorporate defeaters formulated in moral terms.

If these arguments are accepted, then premise (2) (In order to respect themoral autonomy of persons, we should govern human conduct through clearand precise rules, which allow us to determine with certainty when thisconduct is legally forbidden) has to be changed to:

(2) In order to respect the moral autonomy of persons, weshould govern human conduct through clear and precise rules,which incorporate defeaters with moral content and, whichallow us to determine with certainty when this conduct islegally forbidden.

(1) and (2) do not imply (3) (If in order to identify the conductlegally forbidden, we must resort to moral argument, then there willbe a lot of disagreement and, therefore, certainty will be sacrificed


and personal autonomy damaged), but they imply a weak versionof (3) as follows:

1. (3) If in order to identify legally forbidden conduct, we mustresort to moral argument, then there will be disagreement toa certain extent and, therefore, certainty will be sacrificed inorder to preserve personal autonomy.

(p.237) And most importantly: (1), (2), and (3) do not allow us by anymeans to conclude:

1. (4) The law should be identifiable without resort to morality.

Given that, and this has been the core of my argument, (2) presupposesrejecting (4).

VI

My conclusions are, then, the following:

(1)From a conceptual point of view, it is suitable to sustain thesecond version of the law identification thesis, given that it allowsus to take into account the indisputable fact that judges oftenresort to moral argumentation when they solve legal cases. Onthe other hand, it takes into account this fact without resort tothe implausible assumption, developed as complementary to thefirst version of the law identification thesis, according to whichwhenever legal rules incorporate moral concepts judges havediscretion.(2)From a normative point of view, even acknowledging theimportance of the certainty related to the moral autonomy ofpersons, it is precisely the moral autonomy that requires sacrificingcertainty to some extent in order to make room for the presence inlegislation of moral defeaters, which allow us a justified applicationof rules.

Therefore, exclusive legal positivism is unsuitable from a conceptual pointof view and, from a normative point of view, there are no good reasons forsustaining ethical positivism.


Notes:

*Professor of Legal Philosophy, Pompeu Fabra University, Barcelona. I amvery grateful to the participants in the Seminar on Legal Defeasibility at OrielCollege, Oxford, 1011 March 2008: Bruno Celano, Bruce Chapman, PierluigiChiassoni, Timothy Endicott, Jordi Ferrer Beltrn, Jonathan Nash, GiovanniBattista Ratti, Frederick Schauer, and Richard Tur for their comments andsuggestions. For the introduction to the different ways of rejecting theso-called connection thesis I am indebted to Jorge L. Rodrguez and forsome suggestions on how to improve my presentation of certain thesis andcriticisms I am indebted to an anonymous referee of Oxford University Press.

(1) J. Searle, The Construction of Social Reality (London: Penguin Books,1995).

(2) See this formulation of the LIT thesis in D. Dyzenhaus, PositivismsStagnant Research Programme, OJLS 20 (2000), 706.

(3) The three ways are presented and analysed by M.H. Kramer, Dogmas andDistortions: Legal Positivism Defended. A Reply to David Dyzenhaus, OJLS 21(2001), 67980.

(4) J.L. Coleman, Second Thoughts and Other First Impressions in B. Bix(ed.), Analyzing Law. New Essays in Legal Theory (Oxford: Oxford UniversityPress, 1998), 265.

(5) Let : possible, and : necessary, and the predicate L legal andM identified by moral argument. Thus, the necessary connection thesisbetween law and morality can be expressed as follows:

and, by Barcans formula (see, for instance, G.E. Hughes and M.J. Cresswell,A New Introduction to Modal Logic (London: Routledge, 1996), 244), amountsto

and its internal negation:

which equates with the first version of LIT, i.e. it can never be the case thatthe determination of law depends on morality or, from the identification


point of view, the relationship between law and morality is conceptuallyimpossible. On the contrary, the external negation will be:

an expression logically equivalent to

i.e. it is possible that the identification of law does not depend on morality.On the other hand, the second version of LIT implicitly presupposes that it isalso possible that the identification of law depends on morality:

and the conjunction of the two last logical expressions amounts to assertingthat the relation between law and morality is contingent on and, therefore,is compatible with legal systems with resort to morality and legal systemswithout resort to morality.

(6) Mainly J. Raz, The Authority of Law (Oxford: Oxford University Press,1979), ch. 3; J. Raz, Authority, Law, and Morality in Ethics in the PublicDomain (Oxford: Oxford University Press, 1994), ch. 9; J. Raz, Incorporationby Law, Legal Theory, 10 (2004), 117. But see also S. Shapiro, On HartsWay Out, Legal Theory, 4 (1998), 469508; and S. Shapiro, The DifferenceThat Rules Make in B. Bix (ed.), Analyzing Law. New Essays in Legal Theory(1998), 3364.

(7) See W.J. Waluchow, Inclusive Legal Positivism (Oxford: Oxford UniversityPress, 1994) and J.L. Coleman, The Practice of Principle: In Defence of aPragmatist Approach to Legal Theory (Oxford: Oxford University Press, 2001)and my own view in J.J. Moreso, In Defense of Inclusive Legal Positivism in P.Chiassoni (ed.), The Legal Ought (Turin: Giappichelli, 2001), 3763.

(8) As far as I know, the first articulated version of this conception is foundin U. Scarpelli, Cos il positivismo giuridico (Milan: Edizione di Comunit,1965). More recently it has been defended, for instance, by T. Campbell,The Legal Theory of Ethical Positivism (Aldershot: Dartmouth, 1996), J.Goldsworthy, The Sovereignty of Parliament. History and Philosophy (Oxford:Oxford University Press, 1999) and J. Waldron, Normative (or Ethical)Positivism in J. Coleman (ed.), Harts Postscript. Essays on the Postscript tothe Concept of Law (Oxford: Oxford University Press, 2001), ch. 12.

(9) In this sense, exclusive and inclusive legal positivism do not claimtheir plausibility from the beneficial moral consequences of adopting one


concept of law or another. However, this is precisely the claim of normativepositivism. On the beneficial moral consequences thesis see J. Dickson,Evaluation and Legal Theory (Oxford: Hart Publishing, 2001), 84102 andF. Schauer, The Social Construction of the Concept of Law: A Reply to JulieDickson, OJLS, 25 (2005), 493501.

(10) D.O. Brink, Legal Positivism and Natural Law Reconsidered, The Monist,68 (1985), 377. This seems also the view of T. Spaak, Legal Positivism, LawsNormativity, and the Normative Force of Legal Justification, Ratio Juris, 16(2003), 482.

(11) J. Raz, Incorporation by Law, 27.

(12) J. Raz, On the Autonomy of Legal Reasoning in Ethics in the PublicDomain, 312.

(13) Ibid., 314.

(14) An argument used, sometimes, against certain understandings of thesocial sources thesis. J. C. Bayn has called it an argument from lack of fit:It claims that actual legal practice, as currently developed in countries suchas ours, flies in the face of the so-called sources thesisto wit, the claim thatthe existence and content of the law is a matter of social fact and then it canbe fully determined without resort to moral argument, which is taken to bethe very gist of legal positivism. Therefore, the argument concludes, legalpositivism is to be modified in order to fit the practice. J.C. Bayn, Derecho,convencionalismo y controversia in P.E. Navarro and M. C. Redondo (eds),La relevancia del derecho. Ensayos de filosofa jurdica, moral y poltica(Barcelona: Gedisa, 2002), 57.

(15) J. Raz, On the Autonomy of Legal Reasoning, 319.

(16) Ibid., 31617.

(17) As Hart clearly asserts using the term soft positivism, in H.L.A. Hart,Postscript to The Concept of Law (2nd edn, Oxford: Oxford University Press,1994).

(18) B. Leiter, Law and Objectivity in J. Coleman and S. Shapiro (eds), TheOxford Handbook of Jurisprudence and Philosophy of Law (Oxford: OxfordUniversity Press, 2002), 978.


(19) For this reason I think that M.H. Kramer is right when he asserts: ForRaz, adjudication consists in reasoning about the law as well as reasoningaccording to the law, and thus the Razian judges might decide cases in amanner indistinguishable or virtually indistinguishable from the Dworkinianjudges. Though such a practical convergence is hardly inevitable, it is farfrom impossible. M.H. Kramer, Dogmas and Distortions: Legal PositivismDefended. A Reply to David Dyzenhaus, 682.

(20) See the distinction between these terms in E. Bulygin, Time and Validityin A.A. Martino (ed.), Deontic Logic, Computational Linguistics and LegalInformation Systems (Amsterdam: North Holland, 1982), 6582, P. Navarroand J.J. Moreso, Applicability and Effectiveness of Legal Norms, Law andPhilosophy, 16 (1997), 20119; and J.J. Moreso, Legal Indeterminacy andConstitutional Interpretation, trans. by Ruth Zimmerling (Dordrecht: KluwerAcademic Publishers, 1998), 10515.

(21) J.L. Coleman, Incorporationism, Conventionalism, and the PracticalDifference Thesis, Legal Theory, 4 (1998), 4045. The origin of thisdistinction is J. Raz, The Authority of Law, 1012, 11920. See also W.J.Waluchow, Inclusive Legal Positivism, 157, J.L. Coleman, Second Thoughtsand Other Personal Impressions, 2601, fn. 19 and 263, fn. 22; S. Shapiro,On Harts Way Out, 506 and M.H. Kramer, How Moral Principles Can Enterinto the Law, Legal Theory, 6 (2000), 1037. See also J.J. Moreso, In Defenseof Inclusive Legal Positivism, 413.

(22) C. Dahlman, Adjudicative and Epistemic Recognition, Analisi e Diritto(2004), 231.

(23) J. Raz, The Authority of Law, p. 75. See a lucid analysis of this Razianview in T. Endicott, Raz on Gaps: The Surprising Part, Ars Interpretandi.Journal of Legal Hermeneutics, 6 (2001), 34971.

(24) Precisely for this reason the Romans consideredmistakenly, I thinkthat this was the deserved punishment for such an atrocious crime.

(25) J. Raz, Authority, Law, and Morality. On the question of the tensionbetween the Razian thesis of the social sources and his thesis of legalreasoning according to law in relation to his doctrine of authority, see F.Atria, Legal Reasoning and Legal Theory Revisited, Law and Philosophy, 18(1999), 53777 and J.C. Bayn, Derecho, convencionalismo y controversia.


(26) It is a suggestion by R. Dworkin: Raz thinks law cannot be authoritativeunless those who accept it never use their own conviction to decide what itrequires, even in this partial way. But why must law be blind authority ratherthan authoritative in the more relaxed way other conceptions assume? R.Dworkin, Laws Empire (Cambridge, Mass.: Harvard University Press, 1986),42930, fn. 3.

(27) But see H.L.A. Hart, Postscript, 254; K. E. Himma Incorporationismand the Objectivity of Moral Norms, Legal Theory, 5 (1999), 41534; M.H.Kramer, In Defense of Legal Positivism. Law without Trimmings (Oxford:Oxford University Press, 1999), 15261 and J.J. Moreso, In Defense ofInclusive Legal Positivism, 4350.

(28) T. Campbell, The Legal Theory of Ethical Positivism, 95. Almost fortyyears ago U. Scarpelli wrote: A political choice is inherent to legal positivism,but this choice is a choice for the positive law identified by its formalcharacteristics, it is a choice for a legal science and practice which, giventhe positive law, is studied and applied faithfully and independently onany value judgement. U. Scarpelli, Cos il positivismo giuridico, 133(my own translation into English). Recently, also L. Hierro, Por qu serpositivista?, Doxa, 25 (2002), 272, fn. 6, has also revived Scarpellis viewsand demonstrated his agreement with this view.

(29) T. Campbell, The Legal Theory of Ethical Positivism, p. 15. See also T.Campbell, El sentido del positivismo jurdico, Doxa, 25 (2002), 313.

(30) H. Kelsen, Reine Rechtslehre (Vienna: Franz Deuticke, 1960), 6071 andA. Ross, On Law and Justice (London: Stevens & Sons, 1958), ch. XII.

(31) See, for instance, U. Scarpelli, Cos il positivismo giuridico, 153, fn. 3.On the other hand, Jeremy Waldron has strongly insisted on the significanceof moral disagreement for legal theory: J. Waldron, Law and Disagreement(Oxford: Oxford University Press, 1999). Waldron considers the fact ofdisagreement as a reason to take our public decisions by majority: thisis the main link between democracy and disagreement. Given that thedisagreement is ineradicable, it is better to take decisions democraticallythan to give this power to judges. I accept the cogency of this argument infavour of democracy, but if my argument works, then the limited activity ofjudges is compatible with democracy. See also S. Besson, The Morality ofConflict: Reasonable Disagreement and the Law (Oxford: Hart Publishing,2005).


(32) T. Campbell, The Legal Theory of Ethical Positivism, 120. See also theinsistence on the importance of certainty in U. Scarpelli, Cos il positivismogiuridico, 145 and J. Goldsworthy, The Sovereignty of Parliament, 271.

(33) I develop here some ideas previously presented in J.J. Moreso,Commanducci sobre (neo)constitucionalismo, Isonoma, 19 (October 2003),2745.

(34) See also J.J. Moreso, Principio de legalidad y causas de justificacin(sobre el alcance de la taxatividad), Doxa, 24 (2001), 5325.

(35) The analogy between excusing conditions in criminal law and invalidatingconditions in private law comes from H.L.A. Hart, Legal Responsibility andExcuses in H.L.A. Hart, Punishment and Responsibility (Oxford: OxfordUniversity Press, 1968), 2853.

(36) It is obvious that the culture of constitutionalism has increased theextent of the incorporation of morality to the law (see, with a positivevaluation of the impact of constitutionalism: M. Atienza, El Sentido delDerecho (Barcelona: Ariel, 2001), 11214). However, my argument here doesnot deal with the normative suitability of constitutionalism, but simply triesto show that incorporationism is a fact of the law of modernity and that thisfact is justified from a normative point of view. See, in this sense, F. Laporta,Entre el Derecho y la Moral (Mexico: Fontamara, 1993), 612. From this pointof view, constitutionalism is a special case of incorporationism.

(37) F. Schauer, Playing by the Rules (Oxford: Oxford University Press, 1991),314.

(38) T. Campbell, The Legal Theory of Ethical Positivism, 119.

(39) See also this interpretation in C.E. Alchourrn and E. Bulygin, Los lmitesde la lgica y el razonamiento jurdico in C.E. Alchourrn and E. Bulygin,Anlisis lgico y Derecho (Madrid: Centro de Estudios Constitucionales,1991), 31516.

(40) I follow the presentation and the ideas of D. McNaughton and P. Rawling,Unprincipled Ethics in B. Hooker and M. Little (eds), Moral Particularism(Oxford: Oxford University Press, 2000), 25675. Similar conclusions areobtained from R. Holton, Principles and Particularisms, Proceedings of theAristotelian Society, suppl. vol. 76 (2002), 191210; and P. Vyrynen, MoralGeneralism: Enjoy in Moderation, Ethics, 116 (2006), 291319.


(41) P. Vyrynen, Moral Generalism: Enjoy in Moderation, 269.

(42) Ibid., 272.

moreso. legal defeasibility and the connection between law and morality (1) (1)

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