I recently completed an article addressing one of the most important and persistent philosophical issues relevant to the law. The title of the article is “Legality, Morality, Duality.” It has been accepted for publication in the Utah Law Review. Its full text is available on SSRN.
To oversimplify a bit, the issue the article addresses is whether interpreters can say what the law is without making any moral judgments about what it should be. Those who claim no moral judgments are necessary to say what the law is are called “legal positivists.” Those who claim moral judgments are necessary are called “natural lawyers.”
My ultimate conclusion is that they are both right (or, I guess you could say, that they are both wrong). To be more precise, I conclude that each approach is appropriate in the right context. When an interpreter seeks merely to describe the law or predict how it will be interpreted, legal positivism provides the best account of its nature. On the other hand, when an interpreter seeks to understand the law as a source of moral guidance—one that provides a moral reason to act or not to act in a particular way—natural law provides the best account of the law.
So, for example, if tax law has no moral force (a controversial position), and someone wants to minimize the risk of getting punished for violating it, a tax lawyer may be able to predict the odds of various possible consequences of a tax strategy. In doing so, the tax lawyer can describe the law—or predict how it will be interpreted and applied—without making any moral judgments. In contrast, if a judge believes she generally has a moral obligation to follow the law, she will have to make moral judgments in choosing between the competing interpretations of the law that are available to her. It will not suffice for her merely to describe the law—including its various uncertainties—or to predict how it may be interpreted.
The version of this argument in my article is a first step in a larger project. To make it manageable, the article focuses in particular on a book by Yale Law Professor Scott Shapiro, “Legality.” He is one of the most prominent legal positivists today. My claim is that the ways in which his book is not fully persuasive are suggestive of limitations of legal positivism generally. He was generous enough to provide comments on a draft of the article that refined my thinking.
