Vol. 26 No. 4 (August 2016) pp. 71 – 74
JUDGING POSITIVISM, by Margaret Martin. Oxford and Portland, Oregon: Hart Publishing, 2014. 185pp. Cloth $77.00. ISBN: 9781849460996.
Reviewed by John H. Bogart, University of Utah S.J. Quinney School of Law and Principal, Telos VG, PLLC. Email: Jbogart@telosvg.com.
The task Prof. Martin sets for herself in JUDGING POSITIVISM is an assessment of Joseph Raz’s work in philosophy of law. The book is provocative and interesting throughout. It is well-written, not unduly burdened with footnotes or terminological quibbles, and is, as promised, appropriate for both students and academics. The book succeeds in a number of ways: It provides a general account of the Raz’s arguments spread over a number of books written at different times. The exposition of the objects of analysis is generally clear and fair. The footnotes, which are judicious, provide the necessary references to specific works by Raz and to key works of Raz’s interlocutors. Prof. Martin’s work repays the effort of careful reading.
JUDGING POSITIVISM has seven chapters. The first five chapters are organized around central texts by Raz (Chapters 1, 4, and 5) or key ideas of his philosophy of law (Chapters 2 and 3), although these lines are, in practice, blurry. Chapter 1 covers Practical Reason and Norms and the introduction of law as a set of exclusionary reasons. Chapter 2 focuses on the sources thesis (whether a norm is a legal norm depends on its source) with significant discussion of the theory of judicial reasoning. Chapter 3 focuses on the claims of the autonomy or authority of law. Chapter 4 returns to authority and exclusionary reasons as developed in The Morality of Freedom. Chapter 5 discusses the degree to which Raz’s theory regarding source thesis, autonomy, and authority of law can or do fit together. Chapter 6 is a departure: Professor Martin offers up some thoughts about an alternative way of conceiving of the methodology and problems of philosophy of law. The final chapter reads as a summary of the preceding six chapters tied to an exchange between Raz and Gerald Postema.
Martin’s project is an expressly critical one, in both senses. She aims to illuminate fundamental defects in Razian legal positivism, to show that Raz’s account collapses of its own inconsistencies. This will open the door to some form of natural law theory, although the content of that theory is outside the scope of Prof. Martin’s book. Let me turn now to sketching some of Prof. Martin’s central arguments and conclusions.
The general story often offered for the role of law in society is that law works by giving norms for conduct without requiring moral agreement, and thereby engenders order without need for agreement on justice or morality. One basic aspect of a legal positivist theory, then, is acceptance of a sources thesis, that is, the view that the law (of a legal system) is a set of norms identified by their pedigree. Another aspect is the view that law is exclusive and authoritative. Law itself determines the scope or reach of legal norms and, within that scope, determines the import of other normative systems. Legal norms constitute reasons that preempt other reasons, at least within the system of law. A system of law is a practical system, at least if the legal system is a living system. Hence, there must also be a theory of adjudication – a theory about how legal norms are applied and disputes resolved. Hence, Raz must have and has a theory of law (sources thesis) and a theory of adjudication. The latter is, initially, based on the notion that disputes are resolved by judges acting under a duty to apply the law (i.e. a duty to decide disputes by applying law). The duty to apply the law is a legal duty, at least in Raz’s earlier works. In later work, Raz adopts a view that adjudication is governed by moral norms, and that legal reasoning is then a form of moral reasoning. [*72]
Legal norms are exclusionary reasons, in that they pre-empt other sorts of reasons. As a result, judges are under a duty to apply the law and so under a duty to exclude extra-legal considerations. Or so it is in PRACTICAL REASON AND NORMS. Martin argues that “the claim that ‘judges have a duty to apply the law ‘is the theoretical weight bearing plank’” for Raz (and, in her view, for most positivists) (p. 4). If judges are instead understood as moral reasoners, then Razian positivism must be situated within a morally robust conception of authority. And this latter commitment must mean that the sources thesis has to be abandoned. In the end then, positivism must, according to Martin, rest on the “viability of the sharp distinction between non-normative conceptual analysis and normative philosophy,” (p. 4) which Martin takes to be foundational for positivists.
One tension in positivist theory arises from the view that state authority is not based in moral reasons but in social relations, while legal directives have authority if and only if they have morally justified content (p. 12). This issue is returned to in a number of forms. The basic idea is this: Law offers a set of exclusionary reasons, and those reasons are normative. The first problem in Martin’s view can be expressed by the thought that we do not know whether “an individual is actually treating a legal norm as an exclusionary reason rather than as a weighty (first order) reason for action.” (p. 13) This matters because agents should not deliberate about the merits of authoritative directives (that is what it means to be exclusionary), but simply act on the reasons (or, presumably, the reasons are not really exclusionary).
Legal institutions are of three kinds: (1) norm-creating, (2) norm-applying, and (3) norm-enforcing. Norm-applying institutions are key to understanding a legal system for two reasons: (a) norm-applying institutions are a necessary feature of a legal system, and, (b) norm-applying institutions are key to law’s ability to perform its central functions (i.e., regulation of social relations). Think of these as adjudicatory institutions, and the central place of judges is assured. Which leads Martin to her equally central counter-example to positivism: common law adjudication, in particular systems where judges make law by having the power to overrule precedent or to create law. Common law systems are usually handled in positivist accounts by noting that courts are limited in the kinds of rules they may change rules and the circumstances under which they may change rules (This is the rule-plus-exception model). Martin’s view is that this is no solution. If judges have a duty to apply rules (have a duty to apply the law), then it is wrong to suppose that they are also free to change rules.
Martin also offers a more common line of criticism, that adjudication inevitably entails moral reasoning, and in that way defeats the sources thesis. She argues that the rule-plus-exception model fails to capture key feature of (common law) adjudication: a new case may lead a judge to articulate the foundation of some area of law in a new way and that practices of adjudication are infused with values that can shape the judicial decision-making. Those norms are not captured by the sources thesis. A court’s obligation, a la Raz, in such circumstances is to choose “that modification which will best improve the rule” (Raz 1986, p.187). But what does “improve” mean here? However a judge resolves such cases – and there seem to be multiple general approaches – the judge will be making value judgments, not identifying a fact. Yet one would expect a judge to be identifying facts if the sources thesis was consistent with the theory of adjudication. As the judge is not, the sources thesis is defective. In these arguments Martin tends to think of normative thought as moral thought, to treat all norms as moral norms. I think that is an error. Even in the context of law, there are norms governing the form and presentation of argument which it is hard to believe are moral norms, e.g., rules of procedure, procedural burdens, how lawyers dress, and acceptance or treatment of extrajudicial reasons (e.g., business judgment or expert testimony). I also think it does not do justice to the fairly severe limits on argument before a common law court, which affects the nature of the reasons judges admit to considering. [*73]
Chapter 3 continues the attack on the notion that the distinction between theory of law and theory of adjudication must doom positivist theory. Theory of law is a conceptual enterprise while the theory of adjudication is a normative enterprise. The theory of law is captured by the sources thesis, while the theory of adjudication ends up as a “morally robust” theory. Martin approaches this line of argument through discussion of legal reasons. Law offers exclusionary reasons for action, and as a system, law is a system of exclusionary reasons. Judges identify and apply laws, which are norms from the proper sources. So the idea is that legal norms are a discrete set of norms that can be identified and applied without recourse to moral norms.
In ETHICS AND THE PUBLIC DOMAIN, Raz argues that legal reasoning is a species of moral reasoning and is not limited to judges. Courts have discretion to modify legal rules, to make exceptions. Where they do so, courts should apply moral reasoning. Legal doctrines, then, are justified only if morally justified, and should be followed only if morally right to do so. Thus, Raz, in his later work at least, accepts the notion that theories of adjudication are inherently normative and in some substantive sense moral. Hence, where the nature of law is identified with a theory of adjudication, the theory of law becomes a moral theory. The purely conceptual non-normative project then fails.
In Chapter 4 Martin turns to the account of authority and Raz’s MORALITY OF FREEDOM. Historically, an obligation to obey law was argued for under one of two theories: (1) consent or (2) benefits (or some combination of the two). Raz’s view is that all governments claim moral authority but not all possess it, distinguishing between claims of authority and possession of authority. According to Martin, Raz’s account of authority, which is highly individualistic, is plagued by tensions between the pre-emption thesis and the normal justification thesis. For law to bind an individual, the law must be based on reasons otherwise binding on the individual. Under the pre-emption thesis, an authoritative directive is sufficient reason for action and pre-empts direct consideration of the applicable reasons. It is based on the thesis that authorities should base their decisions on reasons that are independently applicable to the subjects of their directives and which are relevant to the actions under the circumstances. It stands in contrast to the normal justification thesis, which holds that the normal way to establish authority is by showing that the subject is likely better to comply with reasons which apply to the subject if the subject accepts directives from the authority as binding rather than trying to follow the reasons directly. If normal justification is correct, then legal norms are not morally binding on individuals who have the relevant expertise to directly weigh the applicable reasons. That outcome cannot fit with the pre-emption thesis (i.e., that the existence of authoritative directives ends consideration of the underlying reasons). Put another way, “the very act of determining whether the norm meets the normal justification standard undermines the pre-emptive force of the norm(s) in question” (p. 77). The essence of Martin’s argument in this chapter is that the pre-emption thesis requires pre-commitment to authority while the normal justification requires case-by-case assessments of authority.
Chapter 5 discusses the relationship between the sources thesis and law as public practical reason. The idea that law offers public practical reasons for action is a theoretical account of how law works in the world and not merely as a description of brute facts. This means the sources thesis is dependent on the outcome of debates in political philosophy (i.e., what constitutes a public reason for action) and on the public accessibility of law. But neither common nor customary law offers discrete reasons for action. They are therefore counter-examples to law as public reason, or so Martin claims.
Raz sees the act of ascertaining content of a legal norm might be complex, but ascertaining the content of a legal norm is not an exercise in moral argumentation. That is, grasping the meaning of a legal norm does not entail adopting a particular moral view or form of moral argumentation. Martin again recurs to the notion that understanding law involves moral analysis of the norms and that such content is [*74] necessary to an adequate account. “If legal norms are going to operate as public practical reasons that serve to unify judgment in a society, then they must enjoy a degree of certainty that allows this task to be carried out” (p. 103). Raz is then committed to need for relative certainty. But relative certainty is not enough for Martin because it relies on too quotidian standards for resolution of disputes – coherence, consistency, etc. Instead, she would have citizens return to “first principles and reflecting on the nature of law as it is manifest in the world” (p. 122).
Chapter 6 offers an intriguing sketch of an alternative natural law theory. It is built around examination of central cases of successful legal systems. Martin suggests that we think of law as a system of norms, not a system of rules or a set of practical reasons. One ought to look to the ideal of the rule of law instead of considering universal features of a legal system. There are, of course, uncertainties in any such short exposition. Why common law would be indicative of the ideal of rule of law is one. But the point Martin makes is that there is a genuine and live alternative to positivist conception of law and of the problems of philosophy of law.
I think highly of the book, but it does have some defects. Although a short book (just 180 pages of text), it is surprisingly repetitive. The same examples do multiple duty, which would be fine except the examples are named but not sufficiently described. So, common law adjudication is taken as a fatal problem for legal positivism in a number of contexts, but Martin does not say very much about what about common law adjudication practices are so problematic for a positivist. A detailed exposition would be of help, because it is in fact far from clear what she has in mind or why common law adjudication is not a problem for everyone. Even a slight acquaintance with the treatment of slavery under English common law, for example, suggests reasons to think common law may not be so much about law. And there are the repeated claims that the positivist has the burden of argument that are just ipse dixit. Let me end where I started: this is a good book, fun to read, provocative. I would say a success.
Raz, Joseph, 1979. THE AUTHORITY OF LAW. New York: Oxford University Press.
Raz, Joseph. 1986. THE MOREALITY OF FREEDOM. New York: Clarenden Press.
Raz, Joseph. 1994. ETHICS AND THE PUBLIC DOMAIN. New York: Clarendon Press.
Raz, Joseph. 1999. PRACTICAL REASON AND NORMS. New York: Oxford University Press.
© Copyright 2016 by author, John H. Bogart.