LAW, POSITIVISM AND MORALITY: THE PENSIVE ENQUIRY OF A PROSPECTIVE STUDENT OF JURISPRUDENCE by Frederick Agaaya Adongo

In earlier stages of our academic journeys, we were made to believe simply that “law” refers to rules and regulations that govern a group of people. Confronted with the question “what is law”, the layman would, in one or another formulation, define it along the stated line. However, this will appear to the student of the law to be a palpably misleading oversimplification. A little brush work with the law will reveal glaringly to those involved that there is more to the question “what is law” than just a set of rules and regulations that govern a group of people.

What then is “law” in the proper sense of the term? Sadly, law has no definition. In finding answers to this question, many legal scholars and philosophers have, since time immemorial, held one another in a deep well of mental and intellectual captivity. In the process, several identifiable strands of argument have emerged in respect of this apparently simple but jurisprudentially complex question.

Whereas the opinions proffered vary in many material and substantial degrees, some similarities have been identified in the works of some of these scholars. This process has led inexorably to the classification of these points of view about law into what is known to the student of the law as “schools of jurisprudence”. The major and most well known schools of jurisprudence are; positivism, natural law, legal realism, Marxism as well as the historical and sociological schools of jurisprudence.

This essay has as its focus the discussion of one of the very key principles in the positivist school of legal reasoning, while endeavoring to examine the soundness of this central theme of the positivistic thesis. To be specific, it would examine the central idea of positivism – “the separation thesis” to determine its veracity or otherwise.

This brings us to the question “what is positivism” or in the alternative “who is a positivist? ”. It is arguably impossible to formulate an exact definition of positivism. Thus, I do not intend to say much about what positivism is for fear that such an attempt may result in a monumental intellectual fiasco. Nevertheless, it is hoped that everyone after examining this little piece to its logical conclusion will have a fair and appreciable grasp of what positivism entails.

The positivistic school of thought about what law his has been principally put forward by leading actors in this school such as John Austin, Jeremy Bentham, Thomas Hobbes, Hans Kelsen, H.L.A Hart and Joseph Raz. The positivists are not themselves congruent on all points of law.

For instance, in Austin’s conception of law, law “may be said to be a rule laid down for the guidance of an intelligent being by an intelligent being having power over him”. Austin therefore proceeded to propose a trilogy definition of law which posits that law is a command of a sovereign backed by threats of sanction.

While rejecting Austin’s command theory of law, Hart posits that “nothing which legislators do makes law unless they comply with fundamental accepted rules specifying the essential lawmaking procedures”. Hart also disagreed with Austin on issue of sanctions. He posits rather that there are declaratory laws which do not necessarily have any sanctions attached to them.

Notwithstanding the diversity of thought in this school, in their extrapolation about law, something basic runs through almost all the tractates of the practitioners in the positivist school of jurisprudence. This basic feature of positivism is dubbed the “separation thesis”, by means of which law and morality are on two different pedestals, “never the twain shall meet”. If they meet at all, that is nothing more than a mere coincidence, according to the positivists.

A number of positivists have laboriously endeavored to put forth their arguments on the question about what law is, while rejecting the conjectures of the natural law theorists. That notwithstanding, and without making a hasty a priori classification as to significance, Hart’s and Austin’s projections of the positivist stand are of more significance to the present discourse and same will be relied on herein.

Hart believes that at the heart of every system of law is what he describes as the union of primary rules and secondary rules. He posits that his elucidation on primary and secondary rules should be the acceptable one on the subject of what law is because it does not presuppose a necessary connection between law and morality hence his position is morally neutral.

In his Concept of Law, Hart rejects any claim that a “legal system must exhibit some specific conformity with morality or justice, or must rest on a widely diffused conviction that there is a moral obligation to obey it”. Consequently, he argued that “it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have often done so”. 

In his Positivism and the Separation of Law and Morals, Hart attacked the naturalists on several grounds. Drawing inspiration from John Austin and Jeremy Bentham he indicated that the naturalists “had blurred this apparently simple but vital distinction” between “law as it is from law as it ought to be”. 

On this same premise, John Austin in his Province of Jurisprudence Determined posits thus:

“The existence of law is one thing; its merit or demerit is another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry. A law, which actually exists, is a law, though we happen to dislike it, or though it vary from the text, by which we regulate our approbation and disapprobation. This truth, when formally announced as an abstract proposition, is so simple and glaring that it seems idle to insist upon it”. 

On this basis therefore, when one distinguishes between what law is and what law ought to be, one would see that the naturalists are not really providing answers to the question “what is law” but rather “what should law be.”

In a very erudite legal masterpiece titled Positivism and Fidelity to Law: A Reply to Professor Hart, Lon L. Fuller contends the propositions of Hart. Rephrasing the question of “law and morals” in terms of “order and good order,” he criticizes H. L. A. Hart for, inter alia, ignoring the internal “morality of order” necessary to the creation of all law. That to which Fuller refers is the natural law. This great legal conflict between Hart and Lon Fuller has become widely known as the “Fuller-Hart Debate”.

The natural law school of thought has been spearheaded by many scholars such as St. Augustine of Hippo, St. Thomas Aquinas, Lon L. Fuller, John Finnis, Edward Coke, among others. This school of thought has as its principal thesis the advancement of good generally and the promotion of justice on the one hand and the proscription of evil on the other. Thus, for practitioners in this school of jurisprudence, laws which do not answer questions of common good are not laws at all.

For instance, John Finnis famously noted that the conceptual point of law is to facilitate the common good by providing authoritative rules that solve coordination problems that arise in connection with the common pursuit of the common good. In his book Natural Law and Natural Rights, John Finnis argues that “since authority is derived solely from the needs of the common good, the use of authority by rulers is radically defective if they exploit their opportunities by making stipulations intended by them not for the common good but for their own or their friends’ or party’s or faction’s advantage, or out of malice against some person or group”. 

In the words of St. Augustine of Hippo an unjust law is no law at all. By way of illustration, Augustine posits thus:

“…the law is unjust which grants permission (a) to a traveler to kill a highway robber, so as not to be killed himself; (b) to any man or woman to slay a rapist in his onslaught, if possible, before enduring rape. Indeed, the law bids a soldier to kill the enemy, and if he holds back from this bloodshed he pays the penalties from his commander. Surely we will not dream of calling these laws unjust – or rather, not to call them “laws” at all, for a law that is not just does not seem to me to be a law”. 

Developing the natural law point of view further in his magnum opus Summa Theologica, Thomas Aquinas identifies four different kinds of law: eternal, divine, natural, and human (man-made). In his view, eternal law is a reflection of God’s grand plan for the whole universe. Further, divine law is that set of principles revealed by Scripture. On the other hand, natural law is eternal law as it applies to human conduct. Human law, according to Aquinas refers that which is constructed by human beings to fit and accommodate the requirements of natural law to the needs and contexts of different and changing societies.

On these premises, Thomas Aquinas poignantly posited that law “is nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated”. As such, he argued further that “human law has the nature of law in so far as it partakes of right reason; and it is clear that, in this respect, it is derived from the eternal law. But in so far as it deviates from reason, it is called an unjust law, and has the nature, not of law but of violence”. This is basically partly a reiteration of what Augustine had posited earlier that an unjust law is no law at all.

Having considered the major schools of jurisprudence as are germane for purposes of this paper, I shall proceed to examine the propriety of the separation thesis that runs through the works of the positivists. To my mind, the positivist account of law as being distinct from morality appears to be a scar in the conscience of the legal profession (especially among those interested in legal philosophy) and must be viewed with skepticism.

I am inevitably compelled to posit that the presuppositions on which legal systems are structured is supposed to be the underpinnings of morality. This is the discipline of all laws, that evil may be avoided and good promoted, if one were to consider it in the language of Thomas Aquinas. It would appear to be a herculean task to distinguish between what is good and what is bad, since what may be good in one town may be bad in another. However, there are some overriding principles and values which are generally regarded as good. I refer here to the basic values about good neighbourliness, fairness, justice, among many others that are inexhaustible to enumerate.

Although this contention may appear to rely largely on the distinct feature about what law should be, it is worthy of note that both the analytical and normative considerations of law which deal respectively with “what law is” and what law “ought to be” cannot be dispensed with in any jurisprudential discussion. In the real sense, the question should not even read as much as “what is law” as it should “what constitutes good law”. An answer to the second is unavoidably the answer to the first.

Indeed, law is nothing save what is just and moral. Even if it is not moral and just, at the very least, it must not contradict the precepts of justice and morality. Thus, there may be some laws which may not appear to have any extrinsic moral value attached to them. However, insofar as these laws do not sharply contrast good morals, then they are inherently moral, and validly law. For instance, laws that require driving on the right side of the road may not have any visible moral value attached to them, since those laws could actually have required that everyone drives on the left side of the road and the same result would have been achieved. Thus, this is validly law, although it does not appear to have any moral worth. The reason is simply that it does not digress from the dictates of morality.

Accordingly, “laws” which are identified as contra bonos mores (contrary to good morals) need to be amended when the actors in society subject those so called laws to criticisms for being wantonly immoral or amoral. A critical example that refuses to get out of my mind is the criminal libel law that was repealed in Ghana.

Before its repeal, a number of Ghanaian legal academics, including the Bench, had subjected the state of the law at the time on criminal libel to stiff criticism. Notably, in Republic v Tommy Thompson Books Ltd (No 2) [1996-97] SCGLR 484 Acquah JSC indicated that he had no doubt whatsoever that “criminal libel constitutes a restriction on the freedom and independence of the media”, whereas media freedom is crucial in every democratic establishment. Also, Professors C.E.K Kumado and E.V.O Dankwa, regarded the laws on criminal libel as “chilling restrictions on freedom of speech and expression”, which freedoms unarguably are essential cogs to the enhancement and promotion of democracy.

In response to all these criticisms, the Criminal Code (Repeal of Criminal Libel and Seditious Laws) (Amendment) Act, 2001 (Act 602) was passed which repealed the relevant sections of the Criminal Code which were inimical to media freedom and the right to freedom of speech and expression generally.

In conclusion, I do not dispute altogether all the claims of all positivists. Nevertheless, as far as their propositions are dependent on the separation thesis, same must be avoided. Thus, laws that appear to be contrary to the principles of morality: justice and the common good; should not at all be regarded as law. The end that law seeks to achieve should therefore be the underlying principle and key determinant of what law is. In essence, we cannot properly define law in any formulation without reference to the ends for which laws exist.