Part Two

Introduction LEGAL POSITIVISM IN THE 20TH CENTURY by Mauro Barberis

The expression legal positivism, more than one century after its first appear- ance, is widespread in Western legal culture. Various definitions have been of- fered of it, and they will all be considered in what follows; in fact, most of the theorists mentioned in this chapter have either been labelled legal positivists or have problematized the label, or both. The label itself designates less a theory than a research tradition: a complex of practices, beliefs, and atti- tudes cultivated by Western jurists and then articulated in clusters of theories. This tradition traces back to the epoch-making turning point of codification— affecting only civil-law countries in a direct way—and it developed by differ- entiation out of a little older tradition, modern . The millenary natural-law tradition, which in Continental Europe contin- ues in the various forms of Rechtsphilosophie, can be described in turn as a broadly philosophical and normative cluster of theories—where philosophical is opposed to legal, and normative to cognitive. On this conception, the posi- tive law is only a means by which to achieve the proper end of law: justice. Legal positivism broke away from the latest offshoot of natural law, rational law, in order to pursue a broadly legal and cognitive study of . The legal positivist research tradition would thenceforth see a line of development having at least three phases. The first phase began with the great codifications of continental Europe, in Prussia (1794), (begun in 1804), and Austria (1811). The expression legal positivism—which established itself only in the late 1800s on the model of philosophical positivism—applies here above all to the Continental jurists’ le- gal dogmatics in the new legal framework moulded by codification, and today often referred to as the legislative state (Gesetzsstaat). What distinguishes the legislative state from previous particularistic or ius commune systems lies in its formal doctrine of the legal sources; what distinguishes it from what followed, namely, the constitutional state (Verfassungsstaat), which main legal source is not legislation but constitution.1 Revolving around this formal doctrine of legal sources—which always ex- cludes natural law, and occasionally also legal dogmatics and judicial deci- sions—is a complex of practices, beliefs, and attitudes, set forth in the codes themselves or taught at the universities, and sometimes referred to as technical

1 The two expressions alike originate in the 20th century, the former as part of a tripartition with governmental state and jurisdictional state (cf. Schmitt 1932b), and the latter as part of a bi- partition with legislative state (cf. Häberle 1998; Zagrebelsky 2009, 117–46). 182 TREATISE, 12 (2) - 20TH CENTURY: THE CIVIL LAW WORLD legal positivism. Technical legal positivists use positive law exclusively, identi- fying it in different ways from country to country depending on the domes- tic doctrine of the sources. In France, it was established that the only source should be general legislation, namely, Napoleonic codification itself. In Ger- many, the Roman ius commune survived, reinterpreted as national customary law; in England, the survived, too, but the Benthamite proposal to codify it wound up rigidifying the system of precedents. Technical legal positivism—paradigmatically the study of private law by the exegetical school in France and by the historical school in Germany—would branch out into a theoretical legal positivism in England, with general juris- prudence, and in Germany itself, with the allgemeine Rechtslehre. These are general theories of law distinct from the different domestic legal dogmatics, and which would typically uphold theses such as the following: There is no law outside positive law (no natural law); positive law serves to guide conduct by way of commands or norms backed by sanctions; legal norms are created by the state, and are deductively applicable by the judges; law is an ordered set of norms, i.e., a legal system or order, marked by unity, coherence, and complete- ness; legal dogmatics could be considered a genuine science of law, at least in the sense of an objective and teachable doctrine. Theoretical legal positivism—this whole set of theories—would soon be pe- joratively labelled , if nothing else for its abstracting from the different contents of law, thus becoming the polemic target of various neo- natural-law schools, and even more so of those movements referred to as anti- formalist: the jurisprudence of interests, the free law movement, the sociology of law, and especially the Scandinavian and the American legal realisms. The main criticism made by the antiformalist movements was that theoretical legal positivism, such as it existed in the 1800s, did not recognize judge-made law— a criticism that does not yet apply, however, to the legal positivist theories of the 20th century, i.e., Adolf Merkl’s and Hans Kelsen’s reine Rechtslehre and Maurice Hauriou’s and Santi Romano’s institutionalism. It was in the second phase of development, however, once World War II was over and the Nazi extermination camps came to light, that Continental le- gal positivism fell into its worst crisis. What drew criticism this time were not any specific cognitive theses about law—as had been the case with the anti- formalist movements, and as would again be the case with the theorists of the constitutional state—but a broadly normative attitude, that which came to be known as ideological legal positivism. This consists in the assumption—in truth already present in the prosopopoeia of the laws in Plato’s Crito, and common to the whole of Western legal thought thereafter, including natural-law theo- ry—that the law is morally binding, and so that it must be obeyed (by the citi- zens) and applied (by the judges). Legal positivism was blamed in particular for having numbed the minds of German jurists and citizens, desensitizing them to the laws enacted under the INTRODUCTION - LEGAL POSITIVISM IN THE 20TH CENTURY 183

Third Reich—an unwarranted charge for many reasons. Indeed, Nazism re- garded the formalism of legal positivists as an enemy to be vanquished, prefer- ring to resort to judicial interpretation and to the Führer’s orders rather than to the constitution or to the ordinary laws enacted under it. And even more damaging to the charge laid against legal positivism is that Nazism had been presented by its makers as itself being a sort of natural law of earth and blood (see in this regard Chapter 2 in this tome and Chapter 9 in Tome 2 of this vol- ume). Yet the charge resonated widely, considering, among other reasons, that it found a receptive audience among thinkers as far apart from one another as Alf Ross and Gustav Radbruch, the former a rabid legal realist and the latter a legal positivist who embraced a moderate form of natural law. In any event, the charge drove legal positivism into a crisis out of which it would emerge as a deeply changed conception. This change is owed above all to H. L. A. Hart, the most influential legal positivist theorist of the common-law world—though we are only interested here in the way his famous Separability thesis developed in civil-law legal posi- tivism. The legal positivist tradition, which at that time was already a century old, was characterized by Hart (1973, 1961) in terms of the Austinian dictum: “The existence of law is one thing; its merit or demerit is another.” Stated oth- erwise, what joins all legal positivists would be the Separability thesis, the ap- parently “simple” (Hart 1973, 55) and undemanding assumption that the term law can be defined independently of the terms morals and justice. Or again, stated in a different way still, the phenomena denoted by law and morals pres- ent empirical or contingent connections, not any necessary ones.2 The definitional thesis wound up assuming an essentially methodologi- cal sense: The law can be identified, and hence known, without resorting to moral evaluations. In fact, legal positivism is characterized by Hart 1994b as methodological positivism (on which see Section 9.3.1 in this tome), using for the theory a qualifier that (1996) had used more than thir- ty years before.3 Such methodological positivism provided the canvas against which to view the natural-law tradition, accordingly reconfigured starting from the Connection thesis of law and morals. To be sure, the Hartian recon- struction is debatable from a historical standpoint, presenting natural law and

2 As has been noted by Nino 1994 (cf. Section 10.2 in this tome), the concepts of law and of morals can be connected or separated ad libitum, at least on a conventionalist conception of lan- guage, depending on the definition one chooses for these terms. Angloamerican theorists speak today not of a definitional but of an identificatory Separability thesis, aimed not at quid ius but at quid iuris, in terms of a Kantian distinction normally ignored by them (cf. Marmor 2001, chap. 4; Raz 2007). 3 See Hart 1994b, Perry 2001. Hart, unlike many of his English-speaking epigones, read Continental literature and the same Bobbio. And even though Hart 1973 could not have been in- fluenced by Bobbio 1996—Hart 1973, 77, rather shows the influence of Berlin 1958—that work by Bobbio can conceivably have been an influence on Hart 1994b. 184 TREATISE, 12 (2) - 20TH CENTURY: THE CIVIL LAW WORLD legal positivism as different answers to the same universal and eternal ques- tion (Murphy 2003)—but it identified a common ground for debate among different legal and ethical traditions, especially as concerns the civil-law theory of law. In fact, the most important contributions on law and morals would come from German, Italian, Spanish, and Argentinean thinkers, that is, from coun- tries that had known the military dictatorships and the totalitarianisms of the 20th century. But maybe it was only with Hart that this question—hitherto ignored by general jurisprudence and the allgemeine Rechtslehre—became common ground for debate among philosophers and lawyers who had un- til then ignored one another, the former having mostly concerned themselves with normative philosophy of justice and the latter with cognitive theory of law. But the theoretical space opened by Hart also made possible the debate between legal positivism and that “third theory of law,” sometimes referred to by Continental authors as nonpositivism and here termed neoconstitution- alism, whose defining feature consists in its identifying in the constitutional principles the true connection between law and morals (see Section 1.4.5 and Chapter 10 in this tome). The evolution of this debate, it should be noted, de- pended not so much on its being framed in Hartian terms, nor on the shift in focus from the theory of norms and the legal system to themes such as legal reasoning and interpretation. It depended mostly on the changed cultural and institutional context in which the legal positivist tradition was developing, and especially on the shift from the legislative to the constitutional state, the latter seeming to embody morals into law by way of the constitution. In the third, and current, phase in the development of legal positivism, legal theorists, especially the Continental theorists, are attempting to account for the changes that positive law undergo, the major Continental countries drewing up rigid constitutions buttressed by different forms of judicial review. Through such a framework, with rigid constitutions whose interpretation is entrusted to constitutional courts, positive law itself becomes constitutionalized, i.e., pro- vided with constitutions formulated in terms of rights or principles which tend to permeate the whole of legal interpretation. The discussion is only on such principles, considered by legal positivists as a mere positivization of moral values, and by neoconstitutionalists, instead, as a new confirmation of the old connection between law and morals. Just as the evolution of civil-law legal positivism has felt the influence of Hart, so is the evolution of neoconstitutionalism deeply influenced by Ron- ald Dworkin’s criticism of Hart, a criticism initially framed in terms of legal- moral principles, and then in terms of legal-moral integrity or interpretation. Of course, this should not be taken to suggest that the Continental and Latin American discussion is simply an appendix to the debate in the English-speak- ing world: It is rather the case that the debate’s internationalization and the INTRODUCTION - LEGAL POSITIVISM IN THE 20TH CENTURY 185 wide use of English reduce the distinction between the common-law and the civil-law discussion to a merely expository one.4 On the other hand, nonpositivism, or neoconstitutionalism, is a distinctly European theory of law, developed above all by German, Italian, and Spanish theorists with reference to Continental institutions of the constitutional state, such as rigid constitutions and constitutional courts. To be sure, the Conti- nental legal positivists and neoconstitutionalists do take up some theoretical schemes of the common-law debate, but the issues and phenomena they con- cern themselves with are those typically distinguishing the evolution of Conti- nental and Latin American law. Not only do they debate the contentious incor- poration of morals into law via the constitution, but they have also developed a theory of norms infinitely more complex than the originary imperativism, a theory of legal systems now confronted with the problem of European integra- tion, and a theory of legal interpretation increasingly tempted by a moral read- ing of the constitution. These developments will all be taken into account in this Part 2, which will be organized as follows. We begin in Chapter 8 by discussing the legal positiv- ist theory that developed in the civil-law tradition in the first half of the 20th century. Chapter 9 will be devoted to the postwar debate on law and morals and to the increasing importance that legal reasoning and interpretation have come to play, partly on account of that very debate. Chapter 10 will be devoted to nonpositivism, or neoconstitutionalism, conceived as a third way between legal positivism and natural law, or even as a “postpositivist” account seeking to overcome or update legal positivism. In Chapter 11 we will consider the le- gal positivist replies to this neoconstitutionalist challenge. And then, finally, in Section 11.5, we will go back and attempt an overall assessment.

4 We also need to point out a somewhat increasing inability of Anglo-American and Conti- nental theory of law to communicate, at least judging by a recent dispute in which Raz (2007) criticizes Alexy (2007) for not referring to any post-Hartian sources in the English-speaking world, only to be reminded that he himself cites no Continental literature other than an English translation of Alexy. In reality, it is a one-directional incommunicability that we are looking at, with the Anglo-American writers often ignoring the Continental ones, but rarely the other way around.