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1986 | P. Soper

MAIN POINT: (I tried my best guys, I hope this helps)

Soper argues that the kind of legal theory adopted has no connection with morality. Both may
produce the same results. What would constitute as moral is not dependent on the kind of legal
theory adopted. Soper supported his argument by considering the effects of legal theory on the
two kinds of citizens on MacCormick’s claim, and the potential constraints each theory poses on
two kinds of officials: the good and the evil judge.

He critiques the arguments of both positivists and naturalists to push his claim that choosing a
particular legal theory will not affect “morality”.

Moral Case for Postivism

 Soper challenges MacCormick’s argument on the final sovereignty of conscience especially with
regards the claim that the way to get people to adopt a critical attitude towards state authority is
to insist on the conceptual distinction between legal validity and moral value.
 He claims that a conceptual distinction between the two will not affect ordinary attitudes and
 He is basically arguing that making this conceptual distinction is immaterial in how a person
adopts a critical attitude (whether he follows the law because he has tested and critically ascertain
that it must be followed, or if he merely follows it because it is declared to be a law by an authority).


o Imagine two hypothetical citizens.
o Gandhi is ideally conscientious and possesses the morally desirable trait of testing all
legal demands by reference to critical morality before deciding what to do.
o Eichmann is unconscientious. He merely complies with the law and never appraises it.
He is like a soldier unquestioningly obeying the orders of a superior.
o The main concern is: How is the behavior of either Gandhi or Eichmann affected by the
choice between natural law and positivism?
o Whether positivism or natural law is adopted, neither Gandhi nor Eichmann’s behavior will
change. The legal theory is immaterial with regards their attitudes.
o Gandhi will act the same way. He will subject the claims of law to the test of critical
morality. He reacts not to what legislators and judges claim, but to what his moral
conscience tells him is the case about the compatibility of formal law with moral
o Eichmann will also not change. Being unconscientious, he will remain as is. He will
continue to comply with the law as it is claimed by others. He doesn’t appraise it with
critical reflection.

 Another problem is that whether positivism or natural law is applied, the claims of officials within
a society will also not change. Even positivists who deny any necessary connection between
law and morality are not prevented from claiming that their legal order is in fact a moral one.
 Law will always be thought as virtuous. A lawbreaker, even if conscientious, will be stigmatized
as a moral wrongdoer.
 MacCormick’s claim may be an educational one which purports citizens to become Gandhis and
not Eichmanns, which in essence is to teach the positivist view from the beginning: instilling that
no moral tests are part of the criteria for law and urging citizens to develop for themselves the
capacity of sifting formal law through moral filters.
 The question is how one’s view about the conceptual distinction between law and morality can
have any bearing on this educational goal.
o If we succeed in making citizens conscientious, it is not because of the legal theory. It is
because of the arguments about why individual autonomy and moral reflection are
inescapable and the judgments of others always potentially fallible.
o A good positivist knows that there is no necessary connection between law and morality.
But such knowledge does not mean that he knows what morality is or that he even cares
about finding out.
o Legal theory, whether Positivism or Natural Law, cannot ensure conscientiousness.
 In a naturalist view, laws are considered moral because otherwise they could not be claimed to
be laws. A conscientious person will of course not take this moral endorsement at face value.
But often, people are somewhere between the extremes that are Gandhi and Eichmann. This
“moral excuse” may be exactly what they need to defer their own judgment and obey the law.
 Example through two hypothetical SC decisions:
o Decision 1: Court sustains the state’s action on the basis of interpreting the existing
statutes, but explicitly disavows any opinion on morality.
o Decision 2: Court sustains the action but also explicitly indicates that because of the
due process clause, the statute passes minimum requirements of fairness, and thus, is
not too immoral.
o People will be more inclined to deter from making their own evaluation with the second
o It would seem that if conscientiousness is our goal, then the goal may be achieved
sooner by removing moral filters as tests for deciding what the law is.
 Soper: But none of these seems to be a consequence of the particular legal regime. In the first
decision, the Legislature may just pass on the moral merits that the Court did not do. It is true
that people will more likely defer to the judgment of the Court, than that of the Legislature. But
this is not because of the legal theory adopted but because the Courts enjoy sufficient respect
and prestige to give moral judgments.

Moral Case for Natural Law

 According to naturalists, positivism is responsible for the abdication of individual moral
responsibility in Nazi Germany.
o Cannot be sustained because the fact that morality and law were seen as separate does
not explain why individuals in Germany would defer to law rather than to their own
assessment of the morality of action.
o Such deference may be explained with an erroneous political theory about absolute
moral authority of the state, however unjust the laws are, or a socio-psychological theory
about people’s tendency to submit to actual power.
o But the suggestion that legal theory itself had a causal influence is difficult to defend.

 Fuller’s charge against positivism focuses on the connection between legal theory and the
ability of those bent on doing evil within a legal system to achieve their ends—The Evil Judge.
o Fuller argues that positivism encourages buck-passing in which the Court interprets and
enforces a law but avoids moral responsibility. It hides behind the maxim of “law is law”.
Easy to avoid having to justify its decisions or its evils.
 But Soper says that such buck-passing scenario is not a consequence of legal
positivism, but of a particular societal arrangement for enacting and enforcing
o Fuller’s critical assumption is that in a natural law theory, such “hiding” and “avoiding to
justify” will not be allowed to happen.
 Soper: But all that a natural law needs is that the regime endorse a view that if
official directives are too unjust, they are not law. Nothing in this claim requires
one to institutionalize the process of testing the justice of the law in a forum of
the sort that Fuller has in mind.
o If a regime thinks that the empirical claim about evil being constrained by the need to
justify is plausible, then—regardless of whether the regime thinks moral tests are
necessarily part of the test for law—it can take advantage of that empirical fact by
requiring any institution to justify a decision that declares, enacts, or otherwise finds the

 The Good Judge

o One of the arguments regarding naturalists is that judges in a natural law regime who
are morally ahead of the rest of society will be free to express their moral judgments and
base their opinions on them without fear of criticism for stepping outside the limits of
their role.
o Soper, now, looks at the example of a good judge to see the constraints legal theory
may pose.
o Dworkin: legal theory was partly to blame for judicial failure to move the country more
rapidly toward the abolition of slavery.
 He claims that if judges had correctly interpreted the available institutional
materials, they would have seen that the law supported the anti-slavery result the
judge wanted to reach.
 Soper: But the positivist regime, if it thought it made sense to tell judges to seek
the best answer even in hard cases, could so instruct judges. It must again be
charged not to legal theory but to the particular theory of adjudication judges
were using.
 Another problem is that this argument assumes that the individual judges in a
natural law view do indeed have the correct views.
 Individual judges acting on their own moral lights are not likely to have much
chance of reversing contrary moral judgment of the rest of society.
 If these judges are continually reversed by other judges or replaced by society, at
some point the invitation to keep moral tests in view in reaching legal decisions is
going to be obviously futile that a good judge would do better to resign or look for
other ways to change opinion.
 However, Soper concedes that this argument may still have purchase in a way
that these good judges, being encouraged to engage in moral evaluation in
reaching decisions, might initiate dialogues that could lead to reevaluation of
existing doctrines as other courts and society attempt to respond to the moral
argument of these enlightened judges.
 Dworkin’s claim is similar to Fuller’s. Instead of requiring justification to prevent
evil, Dworkin’s claim focuses on undoing the evil.
 Soper: There is no necessary connection between the society’s prevailing
legal theory and whether or not it has designed courts to permit this
continued possibility of built-in challenge and response.