Rembrandt, Two old men disputing 1628, National Gallery of Victoria
Evan Whitton, former editor of the National Times, is a distinguished journalist, known for his courage in exposing corruption. His criticism of the law and lawyers is often merited, with a fund of disturbing quotes as well as amusing anecdotes. One might expect his views to add to debates on teaching as well as the law itself. But whatever the flaws of Australian law schools (which for decades have played a major role in law reform and reform of legal education) his criticism of the late British philosopher HLA Hart, someone he holds responsible – along with other ‘positivist’ thinkers – for corrupting law students and the legal profession, calls for a response.
In ‘ The moral failure of law schools’ (Tasmanian Times 1st July) Whitton repeats a charge he made in a book review in the lawyers’ online journal Justinian for 13th May, 2008, that Hart, a former Professor of Jurisprudence at Oxford, thought ‘morality does not matter’. He cites the widely held view that Hart was the most important legal philosopher of the 20th century, reminding us that his ideas were highly influential. But he also believes Hart, along with positivists US Supreme Court justice Oliver Wendell Holmes Jnr and famed Harvard teacher Christopher Columbus Langdell, are to blame for the moral failure of law schools, lawyers, judges and the law itself.
There is no serious attempt to support the thesis and this omission, together with his own uncritical acceptance, suggests Whitton may be searching too hard for a unifying theme for his articles criticising lawyers. But he goes much too far; not only is Hart’s theory of law corrupting, it explains (he says) why colleagues did not respect him. It is why fellow Oxford dons – including his good friend Isaiah Berlin – treated him with contempt by having affairs with his wife Jenifer. Five years later, he is still repeating this crude claim.
All this is puzzling. If Hart thought ‘morality does not matter’, how do we account for his contributions to reform – for ground-breaking books on causation, punishment and responsibility – all morally insightful, and for his celebrated defence (Law, Liberty and Morality, Stanford UP, 1963) – of ideals of freedom, dignity and humanity against a mid-1950’s conservative backlash, led by Lord Patrick Devlin, who argued that the state had a right to punish abortion, prostitution, homosexuality, attempted suicide, vagrancy, drunkenness and so on.
We should ask why no-one questions Hart’s pre-eminence as a philosopher of law, and why he was held in such high regard and affection by students and leading scholars, including those who disagreed with his ideas. This is true of such distinguished critics as the Australian Natural Law scholar John Finnis and the late Ronald Dworkin, Hart’s successor to the Oxford Chair – although Dworkin has been responsible for discrediting positivism in general and Hart’s theory of law in particular, he never ceased to pay homage – reminding us of his role in transforming jurisprudence fromsummary accounts of what famous people had said about law into a philosophical discipline in its own right.
So what did Hart say, and what did he mean? As Hart himself put it, his defence of positivism – a thesis which holds that, despite important, obvious and ‘natural’ connections, there is no logical relationship between law and morality – aimed to assist clarity in conflicts between legal rules and moral values. Hart believed the founders of this legal theory – Jeremy Bentham and John Austin – wished to emphasise two features; first, the mere fact that a rule was a valid rule of law was no reason to suppose it was moral and must be obeyed; secondly, the mere fact that a rule was a part of community morality was no reason to think it was, or should be, a rule of law – that is, a rule to be enforced by the state.
Accordingly, since the judge has a duty to do justice according to the law, he is not free to interpose a personal view of what the law should be; on matters of statutory law he must respect the authority of parliament and on common law that of precedent, thus ensuring all citizens are governed by the same legal standards – a universal tenet of justice. The same constraints apply to lawyers, whose task is to defend legal rights not dispute moral claims. Hart saw this as compatible with a concern that laws serve community aims and not be unjust.
In Hart’s theory a legal system may incorporate moral standards to judge legal rules, either in specific doctrines or in broad general principles. The most famous example of the latter is the US Bill of Rights which invalidates laws, including federal statutes, if they violate certain principles of freedom and fairness. But for positivists they have this status because they are enshrined in the Constitution – because the law itself says so. By contrast, a Natural Lawyer following Aquinas will say unjust law is not valid law because morality says so.
Seen in this way, positivism in legal philosophy expresses an empirical approach to the social sciences; it sees law as an artefact not an aspiration. The law of a community is man-made – it consists of the rules made by parliament and the courts in accordance with the criteria governing law-making authority within the system (Hart’s famous ‘Rule of Recognition’). Its inspiration is scientific and anti-metaphysical, rejecting the language of Natural Law and Natural Rights as more likely to obscure than enlighten. It rejects, in particular, Blackstone’s ‘declaratory’ theory that judges read from a script invisible to ordinary mortals.
It was HLA Hart’s genius to systematically examine positivist claims, including the ideas of Bentham and Austin, as well as the errors and distortions of later scholars, and reconstruct the theory in a far more sophisticated form, one which – because of Hart’s philosophical background and lucid prose – drew high praise even from its critics. The theory is set out in The Concept of Law (OUP, 1961). Those interested in Whitton’s claims should read the discussion of law and morality in Chapter 9. There is also an influential article by Australian WL Morison, ‘Some myth about positivism’ in 68 Yale Law Journal, 212.
Despite the arguments of Ronald Dworkin it is probably fair to say positivism, in one form or another, remains the default position of most Australian lawyers and judges. One sees this in the continuing popularity of the idea that, where the rules are unclear or there is no law on the matter, judges must ‘legislate’ to fill the gap. This follows from the idea that legal rights are the product of man-made rules; hence judges cannot avoid a covert policy-making role – they engage in ‘interstitial legislation’ – they do this by creating a rule justified by its consequences, not the supposed rights of parties. After all, if rules are unclear how can they articulate rights?
Since every issue of law disputed in an appellate court is by definition one where the law is unclear – one on which good lawyers and experienced judges disagree as to the right answer, as well as the reasons why it is right – it follows that the theory confers a good deal of discretion to interpret the law to attain moral ends. Accordingly, we might test Whitton’s thesis against any judgment we think is a major contribution to the law, such as the Mabo recognition of indigenous land rights or the freedom of political speech the High Court found implicit in the Constitution. We might, of course, prefer to highlight more conservative decisions, but the question in each case must be on what rational basis could we say Hart’s positivist thesis rules it out?
However that may be, Whitton is not the first to suggest that positivist theories, because they treat law and morality as distinct, are responsible for corrupt lawyers and unjust laws. In the immediate post-war period German jurisprudence saw a revival of the Natural Law idea that unjust law is not valid law. A major influence was the experience of Gustave Radbruch, a famous positivist jurist who, it was said, came to see that the separation of law and morals had fatally undermined the ability of German lawyers and courts to stand up to the Nazis.
One reason this idea has gained little traction is the difficulty of explaining why, in other jurisdictions, it goes hand in hand with some of the most enlightened reforms of the past two centuries, under the influence of Mill, Hume, Bentham and other positivist critics. Bentham is widely regarded, including by historians such as GM Trevelyan, as ‘the father of English law reform’. The American jurist John Forrest Dillon, writing in 1907, explains:
‘The common law … was by everybody in England regarded with a veneration superstitious to the verge of idolatry. It was declared, and generally believed to be, “the perfection of reason.” … Imprisonment for debt, and distress for rent with all its harsh and oppressive incidents, were in unabated force. The criminal law … abounding with capricious and cruel punishments, and which denounced the penalty of death on about two hundred offences, remained in a state which no one any longer hesitates to pronounce outrageous and shocking. It was on this system that Bentham, when he was under thirty years of age, solitary and alone, commenced the attack which he incessantly continued until his death in 1832, at the age of eighty-four. He was a multiform man; but it is as a law reformer that he stands the most conspicuous and pre-eminent. He had all the personal qualities of a reformer – deep-hearted sincerity, unbounded faith in his own powers and self-sufficiency, unwearied zeal, and dauntless moral courage….”
Hart supported positivism because it was, in his view, the most defensible theory of law and its relationship with morality; it avoided the flaws of less coherent and more pretentious theories. While I believe Dworkin’s reasons for rejecting the positivist thesis are ultimately compelling, it is hard to overstate Hart’s contribution. One might even argue, paradoxically, that his recasting of positivism in such a clear and powerful form has been an important step in its demise.
Instead of explaining why he rejects the theory Whitton, against all the evidence, misrepresents Hart as someone who thought moral principles were not important and had been preaching this to generations of students. This is why he blames Hart and positivism for what he finds wrong with law and lawyers. Those interested in the truth should read Nicola Lacey’s superb biography, and perhaps a selection of the many tributes, memorials and accolades from fellow scholars, including Berlin and Dworkin.
None of this detracts from Whitton’s achievements or his high standing as a journalist. It is, perhaps, another reminder of how easy it is to misinterpret controversial ideas and theories on issues which give rise to strong moral views. He should, however, delete the gratuitous personal remarks from his online articles – the debate is pointless unless one starts with the most generous interpretation of an opponent’s ideas as well as his reasons for holding them.