Conclusion: Beyond Legal Positivism and Natural Law?

Peter Langford and Ian Bryan

Opposition to the natural law tradition, and to its potential re-emergence, forms an integral element of Kelsenian legal positivism. While the conceptual dichotomy between natural law and legal positivism has a discernible historical dimension,1 its substance, subsistence and validity remain of pressing concern in contemporary legal theory. The Kelsenian theoretical framework, together with its emphatic rejection of natural law theories has, over the course of the late twentieth- and early twenty-first century, been increasingly supplanted by a theory of legal positivism originating in the work of Hart.2 In contrast to the radical separation in Kelsenian legal positivism,3 Hartian and Hartian- influenced legal positivism focuses upon the degree to which law and morality occupy discrete, or, in the alternative, intersecting domains; with, broadly, exclusive legal positivists inclined to complete separation,4 and inclusive (or soft) legal positivists comprehending varying degrees of interconnectedness between law and morality.5 The advent of Hartian and Hartian-influenced

1 See, for example, John Finnis, Natural Law and Natural Rights, (Oxford: Oxford University Press, 1980; 2nd ed., Oxford: Oxford University Press, 2011); John Finnis, ‘The Truth in Le- gal Positivism’, in Robert P. George, (ed.), The Autonomy of Law: Essays in Legal Positivism, (Oxford: Clarendon Press, 1996), 195–214; and Robert P. George, In Defense of Natural Law, (Oxford: Clarendon Press, 1999). 2 See Herbert. L A. Hart, The Concept of Law, (Oxford: Clarendon Press, 1961; 2nd ed., Oxford: Oxford University Press, 1994). See, also, Herbert L.A. Hart, Law, Liberty and Morality, (Ox- ford: Oxford University Press, 1962). 3 For recent critical evaluation of Kelsenian legal positivism, see Langford, Peter, Bryan, Ian and McGarry, John (eds.), Kelsenian Legal Science and the Nature of Law, (Dordrecht: Springer, 2017); and Clemens Jabloner, “Die Rechtsbegriff bei Hans Kelsen”, in Stefan Griller and Heinz Peter Rill, (eds.), Rechtstheorie: Rechtsbegriff – Dynamik – Auslegung, (Vienna: Springer, 2011), 21–39. 4 See, for example, Andrei Marmor, Positive Law and Objective Values, (Oxford: Oxford Univer- sity Press, 2001); Brian Leiter, Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy, (Oxford: Oxford University Press, 2007) and Scott Shap- iro, Legality, (Cambridge, MA/ London: Belknap/ Harvard University Press, 2011). 5 See, for example, Wilfred J. Waluchow, Inclusive Legal Positivism, (Oxford: Oxford University Press, 1994); Matthew M. Kramer, In Defense of Legal Positivism: Law without Trimmings, (Ox- ford: Oxford University Press, 1999); Jules L. Coleman, The Practice of Principles: In Defence of a Pragmatist Approach to Legal Theory, (Oxford: Oxford University Press, 2001); and Kenneth

Conclusion: Beyond Legal PosItivism and Natural Law? 501 legal positivism, is also accompanied by renewed reflection upon the concep- tualization of natural law. The character of this reflection is differentiated by the extent to which it remains informed by the body of work comprising the natural law tradition6 or is shaped by contemporary philosophical thought de- veloped outside that tradition.7 In this context, the contention, maintained by inclusive legal positivists, that natural law and positive law may be reconciled and integrated within a single, unified and internally coherent legal positivism, has led to a re-examination of legal theory’s conceptual demarcations. The rigidity of the designations ‘exclusive’ and ‘inclusive’ legal positivism has, accordingly, begun to dissolve and to be subsumed under the more expansive notion of ‘non-positivism’. This is par- ticularly evident in the development of the work of Joseph Raz.8 The Razian detachment from, or repudiation of, the definitional categories of legal positivism and natural law seeks to free legal theory from its traditional conceptual moorings and to enable reconsideration of the essence, nature and content of law. The conceptual space, projected in Raz’s work for the re-thematization of elementary questions in legal theory, is confronted, through a critical exchange with in Robert Alexy, by an insistence upon the continued significance of the

Einar Himma, “Final Authority to Bind with Moral Mistakes: On the Explanatory Potential of Inclusive Legal Positivism”, 24, (1) Law and Philosophy, (2005), 1–45. 6 See, for example, John Finnis, Natural Law and Natural Rights, (Oxford: Oxford University Press, 1980, 2nd edition, 2011); John Finnis, Aquinas: Moral, Political, and Legal Theory, (Ox- ford University Press, 1998); Robert P. George, (ed.), Natural Law Theory: Contemporary Es- says, (Oxford: Clarendon Press, 1992); Mark C. Murphy, Natural Law in Jurisprudence and Politics, (Cambridge: Cambridge University Press, 2006). 7 This is indicated, for example, by the distinct approaches of Robert Alexy, The Argument from Injustice, trans. Stanley L. Paulson and Bonnie L. Paulson, (Oxford: Oxford University Press, 2002); Mario A. Cattaneo, Riflessioni sull’umanesimo giuridico, (Naples: Edizioni Scientifiche Italiane, 2004); Sergio Cotta, Il diritto nell’esistenza. Linee di ontofenomenologia giuridica, 2nd Edition (Milan: Giuffrè,1991); Ronald Dworkin, Taking Rights Seriously, (London: Duckworth, 1977); Enrique Dussel, Ethics of Liberation: In the Age of Globalization and Exclusion, trans. Eduardo Mendietta, (Durham: Duke University Press, 2013); Lon L. Fuller, The Morality of Law, (New Haven: Yale University Press, 1977); and Vittorio Hösle, Morals and Politics, trans. Steven Rendall, (Notre Dame: Notre Dame University Press, 2004). 8 This development is apparent through the comparison of Joseph Raz, Practical Reason and Norms, (Oxford: Oxford University Press, 1975, 2nd edition, 1990); Joseph Raz, The Authority of Law: Essays in Morality and Law, (Oxford: Oxford University Press, 1979, 2nd edition, 2009); Joseph Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics, (Oxford : Oxford University Press, 1994) and Joseph Raz, “The Argument from Justice, or How Not to Reply to Legal Positivism”, in George Pavlakos, (ed.), Law, Rights and Discourse: Themes from the Legal Philosophy of Robert Alexy, (London: Bloomsbury/Hart, 2007), 17–36.