Law and Morality

Author(s): Jerome E. Bickenbach

Source: Law and Philosophy , Dec., 1989, Vol. 8, No. 3, Symposium on Legitimacy of Law
(Dec., 1989), pp. 291-300
Published by: Springer

Stable URL: https://www.jstor.org/stable/3504589

JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide
range of content in a trusted digital archive. We use information technology and tools to increase productivity and
facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
https://about.jstor.org/terms

Springer is collaborating with JSTOR to digitize, preserve and extend access to Law and
Philosophy

This content downloaded from

64.28.139.201 on Thu, 24 Aug 2023 04:16:35 +00:00
All use subject to https://about.jstor.org/terms
 JEROME E. BICKENBACH

LAW AND MORALITY*

I.

The relationship between morality and law is one of the more endur-
ing problematics of jurisprudence. It has come to be the locus of the
dispute between natural law and legal positivism and has generated a
variety of controversies about the scope of legal enforcement. Like
many perennial philosophical issues, moreover, it has endured because
we are pulled in two opposing but equally plausible directions.
We are convinced, first of all, that questions of the existence of law
are categorically distinct from questions of the moral acceptability of
law.' Law and morality, that is, are at best extrinsically related. More-
over, the law as it is seems to be the product of social forces too
complex and haphazard to preserve, or create, an unambiguous moral
foundation. This being so, neither substantive law nor legal practice or
institution can have an intrinsic claim on our moral allegiance. The
law is merely a social instrument to be closely monitored and assessed
against extra-legal standards of moral or political acceptability.
Still, we also find it difficult to deny that, in at least some respects,

* An earlier version of this paper was read at the Symposium on the Legitimacy
of Law in Modem Society, Tampere, Finland, August 1988.
1 This proposition was central to early legal positivism; see John Austin, The
Province ofJurisprudence Determined (London: Weidenfeld and Nicolson, 1965) and
Jeremy Bentham, Of Laws in General, ed. H. L. A. Hart (London: Athlone Press,
1970). John Chipman Gray expressed the 'separation' thesis as the conceptual
truth that the law is not an ideal, but something that actually exists, in The
Nature and Sources of Law (New York: Macmillan, 1938). Despite an important
qualification about an essential, moral core to law, the separation thesis has been
carried into modem legal positivism by H. L. A. Hart, see his 'Positivism and the
Separation of Law and Morals', Harv. L. R. (1958): 593, and The Concept of Law
(Oxford; Clarendon Press, 1961) Ch 9. On these matters see my 'Law, Morals,
and the Fallibility Thesis', University of Toronto L.J. 35 (1985): 67.

Law and Philosophy 8: 291-300, 1989.

C 1989 KluwerAcademic Publishers. Printed in tihe Netherlands.

This content downloaded from

64.28.139.201 on Thu, 24 Aug 2023 04:16:35 +00:00
All use subject to https://about.jstor.org/terms
292 Jerome E. Bickenbach

the law is intrinsically imbued with moral content.2 We cannot but be

aware of the evident analogies between morality and the criminal law,
for example, or notice that legal discourse depends upon, indeed seems
committed to, moral categories like responsibility, fault, compensation,
justice, and rights. These similarities may persuade us that morality
either dictates the actual content of legal norms or else provides
procedures of practical reasonableness that necessarily regulate the
positive law. And if we are willing to go this far, then we may sense
that to some degree the law must have an inherent moral authority
over us.

These two familiar perspectives on the relationship betw

ity and law tend to channel our approach to the central jur
issue of the normative validity, or legitimacy of law.3 If we b
the law has intrinsic moral content, then the legitimacy
seem to depend on the degree to which moral norms are
substantive law and furthered by legal practice. The le
existing law on this perspective is a matter of the manifestati
or pure legality in actual legal practice.
On the other hand, if we believe that the law lacks intr
content, then legitimacy cannot be linked to the characte
pure or otherwise. Instead, we must look through and bey
as we find it in order to disclose the social aims this inst
ought to secure, maintain, or enhance. And doing so we s
conclude that the legitimacy of the law is a matter of the

2 This is the principal, grounding claim of those accounts of na

build on the basic Thomastic view of law. See Lon Fuller 'Positivism
to Law - A Reply to Professor Hart', Harv. L. R. 71 (1958) and
Natural Law and Natural Righlts (1980). See, for a similar accoun
Kantian moral philosophy, George Fletcher 'Two Modes of Legal
L.J. 90 (1981): 970.
3 This characterization of the central jurisprudential problemati
Max Weber's work, see his Economy and Society (New York: Bed
1968) and Jiirgen Habermas's isolation of the problem of legit
Legitimation Crisis (Boston: Beacon Press, 1973), Strukturwandel der
(Neuwied: Luchterhand, 1962) and The Theory of Communicative A
(Boston: Beacon Press, 1984).

This content downloaded from

64.28.139.201 on Thu, 24 Aug 2023 04:16:35 +00:00
All use subject to https://about.jstor.org/terms
Law and Morality 293

of existing legal discourse and practices in furthering important social

aims without incurring unacceptably high social costs.
I do not wish here to contribute to this ongoing debate about the
essential moral content of the law, or indeed to make any direct claim
about the relationship between law and morality. Instead, I want to
identify a jurisprudential assumption about the nature of the law as a
normative system, an assumption that is, I believe, shared by both sides
of this debate, as it has been traditionally conceived. This assumption
may have a profoundly distortive effect on the issue of the legitimacy
of law, and if so, it should be challenged.

II.

Traditionally, the debate over the relationship between law and moral-
ity has focused on the problem of identifying criteria of legal validity
- those conditions under which a normative proposition or practice
acquires the status of law. This focus has transformed the debate into a
contest between two general conceptions of the nature of law. On one
conception, the principal criteria of legal validity are moral inasmuch
as the law is a structure whose normativity depends upon the embodi-
ment, incorporation, or essential appeal to moral normativity. On the
other, the principal criteria of legal validity are formal since the law is
a more or less content-less normative framework that absorbs substan-
tive moral, prudential, and political content from external sources.4
It is a consequence of the first conception that since morality
secures legal validity, the law receives its legitimacy externally, through
the legitimating power inherent either in the moral content of legal
norms, or in the correspondence between legal processes or norm
creation and application and our moral consciousness. And on this
point the second, positivistic conception of law agrees. For although
the positivist insists that legal validity is ultimately a product of the
normative structure of a legal system, this structure consists entirely of

4 See Ernest Weinrib's characterization of instrumentalist accounts of law in

'The Intelligibility of the Rule of Law' in Hutchinson and Monahan (eds.) The
Rule ofLaw (1987).

This content downloaded from

64.28.139.201 on Thu, 24 Aug 2023 04:16:35 +00:00
All use subject to https://about.jstor.org/terms
294 Jerome E. Bickenbach

rules that specify properties of the "pedigree" or formal legal validity

of positive law. The deeper question of the normative validity of the
content of law cannot be answered from within this formal normative
structure, the positivist argues, but rather presumes a different norma-
tive standpoint external to it.
As well, both conceptions share the view that the authority of the
law cannot, even in principle, arise from within, or solely in terms of,
a distinctively legal normativity. When it can be made out at all, the
obligation to obey the law, it is sometimes argued, can only plausibly
be shown to follow from extra-legal, moral, prudential, or political
principles.5 Even the natural lawyer, who will argue that law as such
commands our respect and obedience, typically means by this that the
moral authority of the law flows directly from the law's inherent
moral content.
In short, the jurisprudential debate about the relationship between
law and morality has traditionally assumed the normative dependence of
the law. As a normative system composed of a collection of distinct
and identifiable practices and institutions, the law is understood as
providing a complex and evolving structure for the creation, develop-
ment, refinement, and application of certain norms. Natural lawyers
and legal positivists disagree about the essential or intrinsic moral
content of those norms, but both seem comfortable with the view
that, when the jurisprudential questions of validity, legitimacy, and
authority are at issue, these norms stand in need of extra-legal evalua-
tion. The law itself, it is assumed, lacks the normative resources to
ground its own fundamental norms.
Now, the assumption of the normative dependence of law may be
necessary to sustain the debate between natural law and positivism, or
to set limits on legal enforcement of morality. But if so, the potential
costs of this assumption are not insignificant. For on the face of it, the
normative dependence of law seems to undermine, or vitiate, the
jurisprudential point of inquiring into the normative validity of law.
This is because the meaningfulness of questions about the legitimacy
of law presupposes, not normative dependence, but the normative

5 An example of this line of argument is found in Joseph Raz, The Authority of

Law (1979), ch. 12.

This content downloaded from

64.28.139.201 on Thu, 24 Aug 2023 04:16:35 +00:00
All use subject to https://about.jstor.org/terms
Law and Morality 295

autonomy of law. Whether we argue that modern law can or cannot

claim legitimacy, we must assume at least that the law is a discrete and
independent normative system. Normative autonomy, I want to sug-
gest, is a precondition of normative rationality, and without normative
rationality, the question of legitimacy loses its point.6
Admittedly, there is a sense of legitimacy that does not require the
normative autonomy of the law. Legitimacy might be taken to refer to
the fact of widespread social acceptance of legal norms. Of course,
on this empiricist interpretation of legitimacy the issue of normative
validity is not so much addressed as replaced by the very different
question of de facto acceptance of, or belief in, the legitimacy of legal
norms and institutions. As a result, to investigate legitimacy in this
sense, nothing whatsoever about the systematic, normative character of
the law need be presumed or considered.
There is some reason to doubt whether this empiricist interpreta-
tion of legitimacy is of lasting jurisprudential interest.7 At any rate, if
our concern is with the normative validity of legal norms - rather
than their de facto acceptance - then we are obliged to attend to the
overall normative structure of the law. We must because a critical
assessment of existing legal norms requires an understanding of the
practices in which those norms are situated, and in terms of which
they acquire their legal significance. And since these practices do not
stand alone, but are themselves located within a matrix created by a
normative structure, one must also seek to identify the preconditions
of the normative rationality of that structure.
The law as a whole is, of course, a complex and multifarious
normative system. As a result, it is common, and perhaps essential, to
distinguish between the legal norms that govern criminal law from
those involved in civil actions, or constitutional judicial reviews, and

6 That normative rationality of law as a precondition of legitimacy I understand

to be Jiurgen Habermas's claim in The Theory of Communicative Action, vol. one
(1981).
7 Thus, for example, Jurgen Habermas argues that there is a difference between
the de facto social acceptance (Geltung) and the validity (Gultigkeit) of legal
norms, with only the latter being of fundamental jurisprudential significance:
Moralbewusstsein und Kommunikatives Handeln (1983).

This content downloaded from

64.28.139.201 on Thu, 24 Aug 2023 04:16:35 +00:00
All use subject to https://about.jstor.org/terms
296 Jerome E. Bickenbach

so forth. Nonetheless, a characteristic of any normative system that

includes, as the law clearly does, practices for assessing, evaluating, or
rating human conduct or state action is that it embodies, and allows
for the expression of, a practical discourse that is sufficiently complete
and flexible to serve the needs of these practices. Such a discourse
must enable participants to express, debate, and potentially resolve any
dispute that might arise from the application of governing norms to
particular cases. A normative system will thus include a variety of
adjudicative processes the outcomes of which make claims to norma-
tive validity.
These adjudicative processes function within and in accordance
with the rules, conventions, or traditions of the governing practical
discourse. In the criminal law, for example, rules and principles of
evidence and procedure, perhaps supplemented by constitutional guar-
antees of due process, set out the boundaries of the practice of
criminal adjudication. The limits of the normative rationality of the
processes at work during the criminal trial, as well as the roles the
various participants must play there, reflect fundamental, and familiar,
legal norms. These norms govern the processes of transformation by
which a criminal suspect becomes a criminal accused, and then,
perhaps, a convicted criminal liable to punishment. The norms
governing other legal adjudicative processes identify and serve other
concerns.

Plainly, the possibility of giving a critical assessment

tices and institutional structures depends upon our abil
them as examples of legal practice and legal normativi
mum, these practices must possess an integrity or inter
sufficient to distinguish them from mere repeatable pa
behaviour. A legal practice must, that is, be recogn
must be able to ascertain, and more importantly to dem
when certain things are said and done the result is an
legal practice and not some other kind of social practice.
As well, those who participate in these practices mu
selves as being governed by rules, conventions, and tr
which they do not have complete discretionary con
expressed by a 'move' in such a practice - say the open

This content downloaded from

64.28.139.201 on Thu, 24 Aug 2023 04:16:35 +00:00
All use subject to https://about.jstor.org/terms
Law and Morality 297

the plaintiff in a civil action, the responding motion to non-suit, or

the judgment of guilt by a court of criminal jurisdiction - must be
independent of the specific motives, desires, or interests of those who
are engaged in the practice. In this sense legal practices are objective
phenomena that embody a claim to normative correctness. As a conse-
quence, participants in a legal practice must defer to its rules and
speak the discourse of the legal normative system. The law allows
room for considerable creative expression, but each legal practice must
retain a measure of control over what counts as acting within, or
fulfilling the preconditions of that practice.

III.

In other words, as a normative system, the law must possess an

immanent authoritativeness: it must be in control of its own rationale
and its own aims. The law must have an integrity that is drawn from
sources internal to it.8 This is required if the task of ascertaining the
legitimacy of law is to be meaningful - if, that is, legitimacy is
understood to be a function of what the law is, qua law, rather than
what the law might be employed to do, by way of furthering some
ideological project or expressing (either intrinsically or extrinsically,
purposively or deterministically) specific moral, prudential, or political
principles.
To speak of the immanent authoritativeness of a normative practice
is to call attention to certain systemic traits characteristic of autono-
mous normative structures. I will mention only two of these traits,
ones which strike me as fundamental to what it means for a normative
practice, or (as in the case of law) a complex structure of normative
practices, to be autonomous.
The first of these systemic traits might be called expressive com-
pleteness. A practical discourse is expressively complete just in case it

Though by speaking here of the "integrity" of law I am relying in part on

Ronald Dworkin's discussion in his Law's Empire (1988) - but see as well,
Bernard Williams in Utilitarianism For and Against (1973) - I do not thereby wish
to align myself with his account of law.

This content downloaded from

64.28.139.201 on Thu, 24 Aug 2023 04:16:35 +00:00
All use subject to https://about.jstor.org/terms
 298 Jerome E. Bickenbach

can satisfy our need to name or

normative universe of discourse.
rich to comprehend, however c
conduct, governmental activity,
concerned to assess or evaluate in
expressive resources will be suff
ment, but also our disagreement.
only to express a consensus but al
of consensus as a disagreement ra
discourses.
With an expressively complete discourse it is unnecessary to retreat
to some other normative system in order to express agreement or
disagreement, or to settle a dispute apparently irresolvable within the
discourse itself Controversy will remain since no normative system
could possibly anticipate, and resolve in advance, borderline cases. But
an autonomous normative system must have the expressive capacity to
identify such problematic cases, and, more importandy, to identify
them as problematic.
Secondly, an autonomous normative system must be internally and
transparently rational. The normative system must be internally
rational in the sense that, whenever it articulates a demand, obligation,
or judgment each of these normative standards can in principle be
linked to the aims and basic norms of the normative discourse. Thus, a
normative system will be internally rational when it can generate -
wholly within its discourse - a consistent set of reasons sufficient to
justify the standards it articulates, and in particular the obligations it
creates.

In addition, these reasons must be transparenty rational.9 That is,

they must both justify the imposition of the standard and be directly
relevant to the normative character of that which is demanded or
required. For example, the moral obligation to forbear from certain
conduct is transparently justified when the reasons given for forbear-
ing are identical to the reasons for thinking the conduct is wrong.

9 For the notion of "transparent rationality" see my critical notice of R A. Duff,

Trials and Punishments (1988) CanadianJ. ofPhiil. 18: 765.

This content downloaded from

64.28.139.201 on Thu, 24 Aug 2023 04:16:35 +00:00
All use subject to https://about.jstor.org/terms
Law and Morality 299

Morality, that is, is capable of transparent rationality since its obliga-

tions can be morally justified, and there is no need to appeal to some
other, non-moral normative standard for a more fundamental justifi-
cation.

Expressive completeness and internal rationality are two, and I think

basic, necessary conditions of immanent authoritativeness. If a norma-
tive system possesses these two systemic traits, then its discourse and
its internal rationality will fuel transparent rationality indefinitely: at
no stage in a dispute carried on within its discourse should the need
arise to abandon the discourse, because it can no longer express what
is controversial, or reach beyond and outside it for normative elements
needed to construct a more fundamental justification.
Although I plainly cannot argue this point here, it is my contention
that we have every reason to believe that the discourse of a mature
legal system is expressively complete and transparently rational.
Doubtless we are often tempted to retreat to the exceedingly rich and
expressive discourse of morality or politics to set out in a more
accessible fashion the questions raised by an issue of criminal, civil, or
constitutional jurisprudence. Nonetheless, inasmuch as an issue is
recognizably legal, it can be expressed in legal terms alone. Since the
discourse of our law has developed over centuries and has been
applied to countess cases, representing a bewildering variety of fact
situations, it is, at least, not apparent that its powers of expression or
its internal rationality are inherently limited. Hence, as a matter of
rebuttable presumption, we have every reason to assume the opposite.

IV.

But, of course, the two traditional approaches to the problem of

identifying the source of the validity of legal norms - and so of
characterizing the relationship between morality and law - deny this
contention. Both natural law and legal positivism, in dramatically
different ways, deny that the law has an expressively complete dis-
course, and both implicitly deny that the law is transparently rational
and immanently authoritative.
But if the law does fail to count as an autonomous normative

This content downloaded from

64.28.139.201 on Thu, 24 Aug 2023 04:16:35 +00:00
All use subject to https://about.jstor.org/terms
300 Jerome E. Bickenbach

system in these respects, then surely there is little point in considering

the legitimacy of the law. A practical discourse that lacks the power to
express agreement or disagreement cannot identify, let alone resolve,
contested normative claims, an obvious prerequisite of normative
rationality. Similarly, a normative system that cannot be relied upon to
generate reasons for or against a proposed judgment, or which will
provide reasons that are not relevant to what are normally taken to be
the aims or inherent values of the normative system, cannot qualify as
a system that embodies normative rationality. There is, in short, no
point to assessing the normative validity of such incomplete and
dependent normative practices.
But there most assuredly is a point to assessing the legitimacy of the
law. And the point of this project is not simply to show that existing
legal norms and practices successfully manifest their intrinsically moral
character, or that these legal phenomena effectively and efficiently
further social aims, or the like. Rather the point of this project - its
intelligibility - is to assess the legal-normative validity of existing
legal norms wholly in terms of the implicit nature of the law as an
autonomous normative system.
In short, perhaps legal theorists should cease to be preoccupied with
the question of whether the law is intrinsically or extrinsically related
to morality and focus more closely on the law itself, thereby conced-
ing to it the respect due a distinct and autonomous normative system.

Department of Philosophy,
Queen's University,
Kingston, Canada,
K7L 3N6

This content downloaded from

64.28.139.201 on Thu, 24 Aug 2023 04:16:35 +00:00
All use subject to https://about.jstor.org/terms