‘What is law?’ This is a fundamental question posed at the outset of any course in the philosophy of law. The standard form of response includes that it is a system of rules, according to a tradition known as legal positivism. Such is a ‘black letter’ lawyer, and Anglo-American approach. This is a product of a tradition of formalism, pioneered by scholars such as Jeremy Bentham and John Austin, and latterly taken up by Christopher Columbus Langdell and H. L. A. Hart.
In a nutshell it says that if you want to ascertain what the law is then you simply look it up in a statute, or derive it from the interpretation of a case or precedent, and, hey presto, there you have it. As a lawyer you then arm yourself for battle with this information. Such an outlook matches the common-sense approach of most lawyers. But interpretations of case laws, statutes and constitutions differ. Even within black letter law the meaning of language is never clear. Facts are never exactly the same. Rules are opaque, seen through the looking glass as in Lewis Carrol’s Alice in Wonderland:
When I use a word Humpty Dumpty said, in rather a scornful tone, it means just what I chose it to mean-neither more nor less. The question is said Alice whether you can make words mean so many different things.[i]
In fact, the central assumption of certain positivists, such as Hart[ii] that facts are plain, and all meaning is shared, is eminently contestable. It leads to the fallacy within the black letter tradition that law, or legal meaning, can simply be ‘downloaded’ from a case or a statute and technically applied to any case at bar.
In contrast, the leading rights-driven lawyer, Ronald Dworkin[iii] (in for example Laws Empire, 1986) saw law as a matter of argument, and interpretation. Law and legal meaning are thus intensely creative. He concluded that the best or superior interpretation succeeded – as in Herman Hesse’s last novel The Glass Bead Game – but often this fitted, subjectively, with an overarching liberal agenda. For Dworkin, the right or best answer was always the liberal answer, which allowed his critics to pillory him, arguing his approach was a trojan horse laden with premeditated answers.
But questions of what law is cede to questions of legal validity. Thus, whether something is there on a statue book, or in a court case, must be related to whether that which is law is itself valid.
Ultimately an impasse is reached in that legal validity, in order to have normative and thus binding force, cannot simply rely on legal validation. Or to put it more simply, black letter, legal validity must be cross-checked against the moral or ethical quality of any law.
Nonsense on Stilts
Thus, the argument runs, in order to be valid black letter law it must also be morally reasonable. This concept is deeply alien to an Anglo-Saxon mindset. It invokes the spectre of supernatural deities and that abomination that Bentham referred to as ‘Nonsense on Stilts’, natural law.
Ever since Bentham, the architect of legal positivism, English lawyers have frowned and derided such abstract speculation. Within the British intellectual tradition, from Hobbes to Hitchens, the existence of a supernatural deity is either not accepted, or treated with utmost scepticism. Even devout Christian defer to the intellectual wisdom of traditional British empiricism.
Yet there is still a widely maintained view, of which residues exist even within the British mindset, that in extremis when a law has forfeited all claims to legitimacy it should be abandoned.
This was also the perception of the reformed German positivist lawyer Gustav Radbruch at the end of World War II in response to Nazism. He argued that once a law abandons all principles of humanitarian morality it ceases to be law. This became known as Radbruch’s formula, and forms the basis of modern human rights instruments and charters.
Here we approach the kernel of the problem namely, if a law departs from fundamental moral principle should one comply with it; or instead engage in civil disobedience to unsettle and repeal it? Furthermore, should a judge invalidate it on moral grounds?
Law in Action
This then throws up the thorny question of morality, a world conjuring images of Baptist street preachers, and public avengers screaming from the rooftops. The moral majority often contends, in Lord Devlin’s terms, that what disgusts the average man on the Clapham omnibus should be declared illegal (see Devlin, The Enforcement of Morals, 1959). But given how many minds are polluted with prejudice that may be a perilous formula.
Such is the positivist dilemma, and also a pragmatic and realistic one. The view I increasingly lean towards is that it is less important what the black letter law says, as opposed to what are the repercussions of the law.
As Oliver Wendell Holmes, the quintessential realist, put it: ‘The prophecies of what the courts do in fact are what I mean by the law and nothing else.’[iv] Thus, Holmes maintained there was no law as such until a court had pronounced on the matter. This has morphed into the concept of law-in-action, which is a useful corrective to black letter legal theorising of the ivory tower type.
It is all well and good to talk about rules, but in the trial and family courts it is not rules but fact, semi-fact, prejudice and bias that condition outcomes. Such technical law as there is contested often is agreed beforehand, and irrelevant to the outcome.
The question thus becomes: where statute and the practice of the courts is manipulated to favour certain outcomes, what recourse does any citizen have, and what obligation are owed in terms of obedience?
The Subversion of Subversion
What are you to do if you are confronted with a corrupt state and attacked personally and professionally by an abuse of process or lack of standards. The current imprisonment and trial of the Catalan leaders in Spain, who had the temerity to organise a referendum trial in Spain is one good example of the distortion of law.
A number of options are available: you can fight back in a loaded game with predetermined outcomes; comply and sympathise with the plight of your torturers, who are only doing their jobs after all. Stockholm Syndrome must always to be resisted. You can also engage in civil disobedience or write letters to newspapers, or refuse to recognise the legitimacy of a subversive state. Then you may be imprisoned or even murdered either in detention or on the street in plain view, like the Maltese journalist Daphne Caruana Galizia. More likely you will be bankrupted. Such today are the perils of dissidence around the world.
In practical terms this often means exile is the best option, either as a professional or as a political refugee.
A place of sanctuary, however, may not provide an adequate haven due to its failure, deliberate or otherwise, to understand the intricacies of the laws of another state. It may feel obligated to comply with reciprocal extradition treaties. Fortunately a court in Schleswig-Holstein refused to extradite the Catalan leader Carles Puigdemont, as it was clear that the charge of violent rebellion laid against him was an abomination. This world is nonetheless increasingly dangerous for enemies of the people: politicians, human rights lawyers, journalists and whistle blowers.
It leads to the unsettling question of whether, if a state engages in criminali behaviour, is retaliation against a state officials permissible?
I believe that self-help, disobedience and fighting fire with fire even in an extra-curial sense can in certain circumstances be justified. In general, however, the pen is a mighty counterweight to the sword and a weapon when the legal system no longer functions. The Fourth Estate can still blow smoke up the arses of the establishment.
This leads to the worrying conclusion that we expect too much from law and that the overlap between law and justice is extremely tenuous. That at least is the case in those states where a crisis of legitimacy is leading to a breakdown in the rule of law.
Law in societies no longer complying with the rule of law, is whatever works to bring about a desired outcome, which is often the incarceration of the alleged subversive.
Civilised states at least pay lip service and occasional adherence to justice. Those who believe in legalism and the rule of law, encompassing such diverse figures as the Dworkin, Jurgen Habermas and the late Marxist historian E.P. Thompson, suggest law can be a force to check tyranny.
As Thompson wrote in Whigs and Hunters:
But the rule of law itself, the imposing of effective inhibitions upon power and the defence of the citizen from power’s all-intrusive claims, seems to me to be an unqualified human good. To deny or belittle this good is, in this dangerous century when the resources and pretensions of power continue to enlarge, a desperate error of intellectual abstraction.[v]
The rule of law can, however, only obtain if the legal system has not descended into barbarism.
As aforementioned, a crucial juristic figure is Gustav Radbruch, both a law professor and government minister during the Weimar Republic. It is often argued that opinions expressed in his earlier writings are positivistic. In 1932 he was a relativist in terms of the question of whether moral standards existed in law. He wrote that a judge had an obligation to uphold an unjust law. The Second World War changed his mind.
In the famous ‘Radbruch’s Formula’ (Radbruchsche Formel) he argued that where statute law was incompatible with positivist law to an intolerable degree, and if it negated the principle of equality which is central to justice, it could be disregarded. In 1946 he wrote:
[P]reference is given to the positive law, duly enacted and secured by state power as it is, even where it is unjust and fails to benefit the people unless it conflicts with justice reaches so intolerable a level that a statute becomes in effect false law and must therefore yield to justice … where there is not even an attempt at justice, where equality the core of justice is deliberately betrayed in the issuance of positive law then the statute is not merely false law it lacks completely the very nature of law.[vi]
Radbruch suggests that where a government’s conduct is intolerable, the statue ceases to be valid. Law and must yield to justice. It was clear for Radbruch that this sense of justice (Gerechtigkeit) was linked to human rights. Thus, in Funf Minuten Rechtsphilosophie he argued for ‘justice as moral equality as applying the same measure to all or guaranteeing human rights to all.’[vii]
As Hart indicates:
His considered reflections led him to the doctrine that the fundamental principles of humanitarian morality were part of the very concept of Recht or legality and that no positive enactment or statute, however clearly it was expressed and however clearly it conformed with the formal criteria of validity of a legal system, could be valid if it contravened basic principles of morality.[viii]
Fuller also argues in oft-repeated quote:
To me there is nothing shocking in saying that a dictatorship which clothes itself with a tinsel of legal form can so far depart from the morality of order, from the inner morality of law itself, that it ceases to be a legal system. When a system calling itself law is predicated upon a general disregard by judges of the terms of the laws they purport to enforce, when this system habitually cures its legal irregularities, even the grossest, by retroactive statutes, when it has only to resort to forays of terror in the street, which no one dares challenge, in order to escape even those scant restraints imposed by the pretence of legality – when all those things have become true of a dictatorship, it is not hard for me, at least, to deny to it, the name of law.[ix]
But is the moral answer ever completely clear and who is to judge?
The Fog of War
In this respect it is worthwhile considering a fascinating film documentary by Errol Morris about Robert McNamara, called The Fog of War. McNamara was Secretary of Defense under Presidents Johnson and Kennedy, and a man of many private accomplishments. In his documentary he surveys his career through a glass darkly.
McNamara reveals that as an assistant to the American General Curtis Le May he was responsible for the carpet bombing of Tokyo. He admits that if the US had lost the Second World War, he could have been prosecuted for war crimes. He ultimately concedes he was a war criminal, but his side had won. Victory is not necessarily the victory of the morally just.
Moral arguments can become even more complex. A recent documentary by Claude Landsman – responsible for perhaps the greatest documentary ever made Shoah (1985) – called The Last of the Unjust traces the life of Benjamin Murmelstein during World War I through a series of interviews prior to his death, alongside contemporary reflections by the director. The moral complexity of Murmelstein, a rabbi to the Jewish community at the Theresienstadt ‘model’ Concentration Camp, is such that he is difficult to place, in the seemingly straightforward narrative of the Shoah, as victim or vector. It is only thirty years later that Landsman revisits the footage.
The argument of the film is replete with moral ambiguity. As head of the Jewish Council in Warsaw Murmelstein liaised with Adolf Eichmann. Then as leader of the Jews at the propagandistic Theresienstadt he was responsible for maintaining the illusion of happy campers; the salutary consequence was that many Jews were saved from the death camps.
But many others were sent to the gas chambers from Theresienstadt and Murmelstein was privy to those decisions, and saved his own skin. At the end of the war he was prosecuted but the case was dropped.
What have I done wrong he asks constantly through the film? Did I not do my best? Did I not do good? What would you have done in the same circumstances?
Should he have been prosecuted or acclaimed like Oscar Schindler, Nazi War Profiteer, Drunk and Womaniser yet a saviour of the lives, at great personal cost, of over one thousand Cracow Jews, rights beside Auschwitz? Schindler is now buried alongside the Israeli hierarchy in the national cemetery in Tel Aviv.
Thus, even the invalidation of laws based on morality creates problems. So, in summary, what can be said about law, legality and morality?
- That judges should adhere to the process of legality and avoid bending the rules to suit the interest of those who appoint them. They ought to be independent, and not subject to political pressure or motivated by dogma.
- That justice must be blind to class or colour, and neutral and dispassionate. Show Trials, such as those going on in Spain today, reveal the mob ascendant.
- That judges ought to jettison strict adherence to black letter outcomes, unmitigated by flexibility.
- That the judiciary and fact finders must be committed to the process of truth elicitation and non-fabrication.
- That in extreme circumstance of an immoral legal code or state-sponsored illegality, a judge should reserve a discretionary right to strike down a statute or a precedent.
Perhaps people have too much faith in the law and indeed lawyers, but in our times a faith in justice is one of the few things to hold on to.
A just system is one administered by independent-minded gatekeepers of flexibility, motivated by principle and not corrupt or politically compromised. Fortunately there are many such judges left in the UK.
[i] Lewis Carroll, Alice Through The Looking Glass, Chapter 6, 1871.
[ii] A. L. A. Hart, The Concept of Law, London, Clarendon Law Series, 1961.
[iii] Ronald Dworkin, Laws Empire, New York, Belknap Press, 1986.
[iv] Oliver Wendell Holmes, The Path of the Law, 10 Harvard Law Review, 1897 457-58
[v] E.P. Thompson, Whigs and Hunters, London, Allen Lane, 1975, Appendix 1.
[vi] Gustav Radbruch, Five Finutes of Legal Philosophy, 1945
[vii] Radbruch Gesetetchiches Unrecht Und Bergesetiches Recht Sufddeutsche Juristrazeitung (1946), p.107
[viii] A. L. A. Hart, Positivism and the Separation of Law and Morality, vol 71. 1984, p.617.
[ix] Lon L. Fuller, Morality of Law, 1964, New Haven, Yale University Press, 1964, p.660.