Thomas More Institute

‘In any legal system, whether a given norm is legally valid, and hence whether it forms part of the law of that system, depends on its sources, not its merits.’This working definition of ‘legal positivism’ has a certain notoriety, even while it provokes disagreement.

This legal tradition is popularly understood, and with some rationale, to hold that there are to be no recognised norms of conduct beyond the letter of the law as laid down by government and enforced with physical power. Within it legislators need not consult normative accounts of morality or justice in drafting laws, nor need they be held accountable to such.

Positivist theories were much in vogue in Europe immediately before and after World War II, and they played indeed a key role in the legal defence put up by defendants in the celebrated Nuremberg Trials.

Those indicted by the allied powers after World War II asked by what authority (other than physical force) they were to be tried. Many, if not all, questioned the legitimacy of a court whose authority rested on treaties to which Germany had not been signatory. How could soldiers and civil servants be held accountable by laws that had played no part in their understanding of the War, of their work or of their place in the world? Moreover, soldiers had sworn allegiance to men who were expected to take responsibility and (where appropriate) credit for their behaviour. How then could they be expected to take legal responsibility for actions (however heinous) carried out in accord with the letter of the law?

In the end it was accepted that such a vision of law as final arbiter of right and wrong had serious flaws. Whatever the bonds into which soldiers may enter, and whatever laws a State may enact, we all remain answerable to a ‘higher law’ that holds killing on account of ethnicity, religion, disability, or whatever morally repugnant. Performing experiments on people to test their reactions to extreme conditions amounts to participation in fathomless evil, regardless of legal sanction. A person remains a person, with a dignity and value that law, custom and ancestral authority cannot diminish.

In more recent times, a fashion for ‘multiculturalism’ has sought to undermine so fundamental a perception. ‘Cultural practice’ has been held to justify the unjustifiable. One such practice that has raised the ire of commentators recently has been that of female genital mutilation or ‘cutting’, although the delayed onset of the outrage is startling. It does not matter if it has been done for twenty or for two thousand years. Supporters of the practice, including some ‘multiculturalists’, may hold it to be part of some Middle-Eastern and African cultures, and therefore to be accepted in the name of tolerance, but girls so cut are human beings and such treatment of human beings cannot be so justified.

Legal positivists and multiculturalists alike seek to ‘resolve’ issues of moral value and moral authority. They offer simple solutions to very complex problems, and this alone should arouse suspicion. They suggest that difficult questions of human value, morality and justice can be answered by appealing either to the force of law, or to that of of culture and tradition. This is merely to push moral issues aside and to declare them non-problems. It will not do.