intimate study of both the theory and the philosophy of law which, in turn, requires an acute understanding of the way in which the legal system works and the reasoning that is displayed by all entities within the system. Despite the potential depth of this study, there are three key areas of study within legal theory, each of which takes its own distinct view on how, if at all, moral judgments should impact on the way in which legal theorists analyse the issues before them. Natural law theory, for example, takes the point of view that there are laws of nature that cannot be changed and that the legal systems should work towards complementing these in so far as is possible. Normative theory looks at the area of what law should be and how punishment should be used, as well as whether or not it is acceptable to break the law in certain circumstances. Critical to this discussion, however, is the field of analytical theory which requires questions such as whether or not there is (or ought to be) a relationship between law and morality and how exactly legal rules gain their validity. Legal theorists looking at taking an analytical approach are much more likely to be involved in discussions of the moral worth of legal concepts and are, therefore, the primary focus for this discussion. It should be noted, however, that legal theorists in the other fields will often discuss the very same topic when looking at wider legal concepts.
Historically and dating back to ancient Greece and the works of Lycophron, there has been a body of thought that has argued that morals and legal rules are inherently linked as a moral individual would follow the letter of the law. At a very basic level, this shows a particularly strong argument for the need for legal theorists to consider moral values when discussing legal concepts. If the two are to be deemed intertwined, it is not possible for theorists to consider one without the other as the issues and arguments are so strongly interrelated. However, the position is not as straightforward as the early day philosophers may have believed. Social contracts and cultural norms have developed, as have the legal structures and concepts, so that the direct correlation can arguably be said not to exist.
This is a position discussed by many, to the extent that it has now developed its own body of legal theory, referred to as legal positivism. It is in this area of thought that the main issues relating to the how and when moral judgment should form part of legal theory is discussed at length. Essentially, and at the heart of legal positivism, is the notion that there is no inherent or necessary link between law and morality and that greater evidence needs to be brought in order for a legal concept to be deemed to have its foundations in a moral judgment and that this link should not necessarily be drawn.
One of the leading texts in this regard is that of Hart, The Concept of Law. Although this was later criticised heavily, it laid down several key concepts and ideas surrounding how and why moral judgments should form part of legal theory. At the centre of this book is the legal positivism approach which states that there is no automatic link between law and morality (or indeed between law and coercion). He does, however, raise the question as to whether all legal rules could potentially be seen as either moral commands or coercive orders, but that to form this universal link in relation to all laws would be misleading, as it would suggest a degree of uniformity across all laws which may, in reality, perform very different functions. The main argument advanced is for the fact that not all laws have the same ultimate effect. For example, whilst one set of laws may place limits on an individual’s actions and what individuals within society (or a section of society) can undertake, other laws may offer rights without corresponding obligations. Hart also differentiates between primary rules, i.e. rules that impose either obligations or duties, and secondary rules which allow those primary rules to be managed. By forming this differentiations, Hart makes it clear that he does not believe that individuals follow the primary rules of obligation purely due to habit or obedience to the state, but rather because there is an acceptance that all individuals are bound, under their social contract, to recognise that these rules are valid. Critically, he argues that moral judgments and legal rules may overlap considerably, but it is in their operation that the real distinction exists. Legal rules can be changed, provided suitable legal and political authority is allocated to the task, whereas moral rules are developed over a longer period of time and in line with social norms.
Hart’s position was heavily criticised by the legal theorist, Ronald Dworkin. In his works, he argues that the relationship between moral judgments and legal rules and theories are so intertwined that the issue of theory cannot be limited merely to descriptive roles but must, necessarily, have an interpretative element which requires a recognition and application of the surrounding moral judgments. When considering the role of the judiciary and the way that it deals with vague or new circumstances, Hart argues that it is establishing new laws, whereas Dworkin prefers the argument that judicial discretion of this nature is about making judgments as to what principles should be applied in the context of existing laws. This will often require a degree of moral judgment and interpretation to ensure that the current laws accord, as well as possible, with the prevailing social context. Dworkin goes on to argue that a full study of legal theory must not only describe the laws as they are found, but also must interpret and evaluate them; this requires not only the force of the law to be considered, but also the grounds with which these laws are created and followed. If the arguments put forward by Dworkin are to be accepted, this not only suggests that legal theorists are allowed to refer to moral judgments, but rather that they are under a positive duty to consider these judgments by looking at the interpretation and evaluation of the rules of laws laid down.
Before concluding whether moral judgments should form part of the work of legal theorists, it is helpful to consider some scenarios whereby there would be a natural overlap between law and morality and where there would not. Consider, for example, the laws that simply defend basic values, for example, the prevention of murder or rape, where law and morality work in tandem in all but the extreme cases. In other cases, where it is not as clear, such as speeding offences or petty theft, there is likely to be a degree of moral judgment in the way that the judiciary interprets and punishes the appropriate crime. Whilst some laws will take into account the state of mind (mens rea) this is not always the case and the law does not, in most circumstances, have the right to govern what is in the mind. However, morality is often expressed publicly through the use of laws and is a way of codifying the basic principles by which the public, as a whole, chooses to abide.
Pulling all of this together, and with reference to the legal theories raised by the likes of Hart and Dworkin, it is concluded that moral judgments have a large and rightful place within the role of the legal theorist. As suggested by Dworkin, simply to describe legal rules and concepts would only really be considering one third of the total issues that a legal theorist should rightly be considering. There must be an element of interpretation and of evaluation in any study of legal theory and with these elements comes a necessary degree of moral judgment. Questions such as what basis does this law have to be enforceable will almost always require consideration of the moral situation and not simply a description of the law as it stands.
It is concluded, therefore, that in order to undertake any meaningful role as a legal theorist, it is necessary for the moral judgments and basis for the legal concepts to be considered and discussed and not simply for the laws as they stand to be accepted and described. Failure to do this would result in an incomplete analysis from the legal theorist and may lead to misleading concepts, as a result.
Beyleveld, Deryck & Brownsword, Roger, Law as a Moral Judgment, London: Sweet & Maxwell, 1986, p. 483
Dworkin, Ronald, Law’s Empire, Cambridge MA: Harvard University Press, 1986
George, Robert P., The Autonomy of Law: Essays on Legal Positivism, Oxford University Press, 1999
Hart, Herbert Lionel Adolphus, The Concept of Law, Clarendon Press, 1961
Kerruish, Valerie, Jurisprudence As Ideology, Routledge, 1992
Kramer, Matthew H., In Defense of Legal Positivism: Law Without Trimmings, Oxford University Press, 2003
Mulgan, R.G., Lycophron and Greek Theories of Social Contract, Journal of the History of Ideas, 40, 1, 1979, pp. 121-128
Patterson, Dennis Michael, Philosophy of Law and Legal Theory: An Anthology, Wiley-Blackwell, 2003
Tebbit, Mark, Philosophy of Law: An Introduction, Routledge, 2005