National Review recently published the commencement address George Weigel delivered at Ave Maria School of Law in Florida. In it, Weigel urges prospective Catholic lawyers to, like Martin Luther King Jr., challenge the philosophy of legal positivism, which Weigel says “empties law of moral content, detaches it from reason, and treats law as merely an expression of human willfulness.” He argues that, for legal positivists, law is only a command, a mere exercise of power, as opposed to what one subscribing to natural law legal theory, like Pope Leo XIII, would believe: namely, that “a true law is a rule mandated by reason; a true law is enacted by a properly constituted authority; and a true law serves the common good of society.” According to this view, a law that fails to fulfill these criteria is unjust, and an unjust law is not truly law. A just law is a law that is rooted in a correct moral understanding of creation, an understanding that can be attained by the proper use of human reason. There is thus a necessary connection between law and morality. For Weigel, legal positivism is dangerous because it rejects that necessary connection.
Some legal positivists, however, might raise an objection to Weigel’s characterization of their philosophy. In The Province of Jurisprudence Determined, John Austin would agree that a law is a command which obliges political inferiors, but he would emphasize that there is an essential distinction between the existence of a law and its merit or demerit. However, he does say that human laws should conform to divine laws insofar as they are certain, and that the laws of God may move a person to disobey unjust human laws. However, he simply thinks that it is a misuse of language to say that an unjust law is no law; if the law is enforced, guides behaviour, and shapes society, then for him it clearly has effect as law.
Similarly, H.L.A Hart, in “Positivism and the Separation of Law and Morals,” simply notes the difference between what law is and what law ought to be. For him, the “final moral question” is whether the law ought to be obeyed; law must not supplant morality (618). Hart is a legal positivist but this does not mean that his moral concern is diminished or that he devalues the use of reason. He acknowledges that law has always been shaped by moral concerns and wants to see the “uncommanded commander” (his term) who makes law – namely, the state – as something other than a “gunman situation writ large” (603). This is a much more limited legal positivism than Weigel describes and not as immediately problematic.
In this way, we can begin to see that the Catholic relationship to legal positivism can be complicated. Pope Emeritus Benedict XVI, in an address to German government officials, says that “the positivist approach to nature and reason, the positivist world view in general, is a most important dimension of human knowledge and capacity that we may in no way dispense with. But in and of itself it is not a sufficient culture corresponding to the full breadth of the human condition.” Legal positivists are right to note that unjust laws can still take effect and guide the behaviour of citizens, ordering society in a certain way. The danger of simply dismissing these rules as “not law” is that one might ignore this effect. This is an important insight of legal positivism that should not be dismissed out of hand. As Marta Cartabia and Andrea Simoncini found in their book on Pope Benedict XVI’s legal thought, “the positivist approach is not wrong, per se, but it is simply partial” (19). The problem is not in believing that the rules governing society are disconnected from morality, but believing that this separation is an endorsement of the state doing as it pleases, or creating the morality to which it connects law.
This is not to make a wholesale defense of legal positivism. A legal positivism that believes that moral considerations are irrelevant to the making of law (as opposed to not necessarily connected) becomes what Benedict describes as a “concrete bunker with no windows, in which we ourselves provide lighting and atmospheric conditions, being no longer willing to obtain either from God’s wide world…The windows must be flung open again, we must see the wide world, the sky and the earth once more and learn to make proper use of all this.” Believing that, for example, the value of human life could be put to a referendum and believing that the majority’s will is the only consideration when creating a law is clearly an unacceptable positivist view. Indeed, a person who staunchly believes abortion to be a necessary right should also probably object to the raw positivism of putting access to abortion to a simple majority vote. From either perspective, the acknowledgement of a human right (or a perceived right) is at the mercy of the whims of the majority. The greatest danger is not a positivism that seeks to make moral laws possible despite believing that immoral laws can still exist as law shaping society. Rather, the danger is in believing law to be necessarily connected to an inadequate source of morality.
For example, Beverly McLachlin, former Chief Justice of the Supreme Court of Canada, describes herself as “a modern natural law proponent” in her 2005 Lord Cooke Lecture. The fundamental moral norms to which she seeks to reconcile law, however, are constitutional norms and human rights, the latter of which may, to some extent, be discovered by reason. Similarly, the Canadian Charter of Rights and Freedoms sets out various rights and freedoms that the government must respect when it is making law (subject to exceptions such as the notwithstanding clause). Now, we can see this as a sort of positivism in that the Charter is simply a constitutional document written by national leaders to protect certain values. That is another way of saying that the “uncommanded commanders” of the country ordered that all laws be consistent with the morality that they established. However, given that human rights operate as the new source of morality for law, the Charter is effectively a source of a sort of morality with which other laws must comply in order to be true laws. When courts consider whether other laws violate the rights the Charter protects, they are for all intents and purposes engaging in a variation of natural law legal analysis.
In Carter v Canada, the Supreme Court, under McLachlin’s leadership, unanimously found that the sections of the Criminal Code making assisted suicide illegal were unconstitutional and void, as they violated section 7 of the Charter. The law, in the Court’s view, was inconsistent with the rights enshrined in the Charter and so was not true law. From a Catholic perspective, it is the ruling and the subsequent changes to the Criminal Code that are the true injustices as they increase the vulnerability of the elderly and infirm, devalue lives that do not live up to a certain ideal, and even dehumanize death. This, in turn, makes society less human. However, the decision itself is not a clear example of positivist logic; the Court attempts to justify its decision in light of the rights protected in the Charter with which Parliament’s laws must be consistent, as opposed to presenting it as a command issued by the proper authority. (Indeed, if the Court had found that the Criminal Code provisions were constitutional simply because they were properly promulgated, that could be an instance of positivist reasoning, despite it aligning with the Catholic viewpoint.) How convincing one might find the Court’s logic is not, strictly speaking, the issue; the point is that the Court argues the old Criminal Code provisions are unjust law and therefore void because of their failure to respect the moral content of the Charter.
Here we see how slippery it is to classify certain positions. For instance, some justify abortion by appealing merely to the principle that states should not intrude into personal matters of health, believing that the law should simply offer an arena of freedom. This could be a version of positivism that is concerned not with the moral content of law, but with the limits of government. Others, however, would justify abortion as a positive good, as a “reproductive right,” which means that they are appealing to what they believe to be a moral imperative and arguing that the law must conform to (and even endorse) that imperative, instead of just making room for it. This is not merely a sort of legal positivism. Therefore, it is necessary to understand to what legal philosophy the people holding the positions appeal implicitly.
Society and Reason
The problem is not always whether law is necessarily connected to morality and reason but what moral content must reside in laws. For a Catholic, that is a question that hardly needs asking, but in a secular society reluctant to acknowledge a specific source of moral authority, the question becomes thornier. To return to Pope Benedict’s image of the closed concrete bunker: How do we open the windows, instead of making ourselves into the creator of moral standards? Benedict notes that “unlike other great religions, Christianity has never proposed a revealed law to the State and to society, that is to say a juridical order derived from revelation. Instead, it has pointed to nature and reason as the true sources of law – and to the harmony of objective and subjective reason, which naturally presupposes that both spheres are rooted in the creative reason of God.” Reason is, ideally, something shared between persons of all faiths and so can operate as a place of productive encounter and collaboration. But is reason really shared effectively? In a dysfunctional public discourse fragmented by tribalism, virtue signalling, hypocrisy, mistrust, and a general unfamiliarity with basic concepts of logical thinking, that hope seems naïve.
Weigel emphatically characterizes law as a vocation rather than simply as a profession. He says that the vocation of lay people is to live in the world and to “bend the curve of history in a more humane direction.” For those with vocations in the area of law, that involves shaping the law in a more humane way. That will not, however, always involve waging moral crusades before the Supreme Court to repeal unjust laws. Indeed, the daily work of that vocation might be much more prosaic: advising clients how to make business deals ethically, how to provide for families in wills, how to avoid causing harm negligently, etc. These are clearly areas of moral concern, and the Catholic lawyer brings a special tradition of ethics into his practice with him, hopefully also sharing that tradition with others given that it is accessible to human reason. It is the vocation of all lay Catholics to create a culture in which that reason is best received and to encourage lawmakers to enact policies that best serve the common good. There is always the lingering question of just how much a judge will take into account whether a ruling will be consonant with society’s values. If this is seriously taken into consideration, it is not just the values of the lawyers that matter. All lay Catholics must work to make sure that there exists a society in which rulings and laws are easily consonant with their faith and values. All lay Catholics must work to repair the effects of tribalism, hypocrisy, mistrust, and a general unfamiliarity with basic concepts of logical thinking, so that the work of shaping the law may be more fruitful. Such a society would be, not the instrumental world of scientism, in which the most radical positivists deny any connection between the world and moral content, but the sacramental world charged with meaning, with the windows flung wide open.