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Speaker: Liam Murphy, Professor of Philosophy and Professor of Law, New York University
Summary by Japa Pallikkathayil, Edmond J. Safra Graduate Fellow in Ethics
In "The Boundary of Law," Liam Murphy explored the boundary between law and morality. On the one hand, legal positivism suggests that the boundary between law and morality is strict and exclusive. That is, the question of what the law is and the question of what it ought to be are completely separable. Judges, therefore, cannot employ their own moral judgments to determine what the law is. Murphy contrasted legal positivism with two non-positivist views. First, on the view of German jurist Gustav Radbruch, on grossly unjust state directive could really be a law. Thus, in extreme cases, judges have to exercise their own moral judgment to determine what the law is. Second, on Ronald Dwokin's view, legal interpretation, although constrained by legal materials, basically always requires moral judgment because these legal materials are inconclusive.
Before considering what is at stake between positivism and non-positivism, Murphy distinguished the question of the boundary between law and morality from two other questions. Both positivists and non-positivists can agree that there is no possible set of legal materials that would allow judges to decide all cases in a completely mechanical way. Although the positivist will insist that the judge is making rather than interpreting the law when the legal materials are indeterminate, proponents of both views must consider (1) the question of how legal materials ought to be designed, i.e. whether these materials should be more or less determinate, and (2) the question of the grounds on which judges should decide cases when the legal materials are indeterminate. Murphy suggested that these two questions should be resolved by considering the appropriate institutional role of the judicial branch, although considerations of efficiency are also relevant.
Murphy suggested that once it is clear that the question of the boundary between law and morality and the questions about the design of legal materials and adjudication can be separated, it also becomes clear the answer to the law/morality question has very little direct practical import. Murphy offered a few examples, including one regarding the prosecution of former East German border guards after the fall of the Berlin wall. The guards had shot people trying to flee over the wall, and the question the courts faced was whether they could be prosecuted for murder. This was a tricky question because the Constitution of the Federal German Republic prohibited retroactive punishment, and it seemed as though punishing the guards would violate this prohibition. One court, following Radbruch's conception of the law, found that the GDR legal directive requiring the guards to act as they did was so unjust that it couldn't really be said to be law at all. Thus, the ban against retroactive punishment wouldn't be violated by their prosecution. Another court in considering a similar case came to the same conclusion but on different grounds. Rather than questioning the legal status of the GDR directive, the second court decided that the ban against retroactive punishment didn't apply to otherwise criminal acts made permissible by a grossly unjust law. A positivist need not have any objection to this ruling, as long as the second court is understood as exercising discretion rather than interpreting the law.
The settlement of the law/morality question thus need not have any impact on the outcome of particular cases. Murphy aimed to show that in spite of this lack of direct practical import, settling the law/morality question could still be of practical interest. In order to make the discussion more concrete, Murphy focused on particular versions of positivism and non-positivism. On the positivist side, he considered the views of H.L.A Hart and Joseph Raz. On the non-positivist side, he considered the view of Ronald Dworkin. The dispute between a positivist and Dworkin is about how to understand what a judge is doing when moral reasoning must be exercised to settle a case. The positivist claims the judge is making law whereas Dworkin says she is simply giving her view about what the law already is. This is traditionally viewed as debate about what the content of the concept of law is. Murphy considered the possibility that it doesn't matter what the concept of law is. The only reason, on this view, for adopting one conception over the other is for rhetorical force. Murphy argued that there is more to the question than this. Following Raz, Murphy suggested that the concept of law is a concept that is used by people to understand themselves and their society. So, it is important for self-understanding to settle on a particular conception. While Raz attempts to explicate the concept of law through a project of conceptual analysis, Muprhy suggested that there is too much disagreement in the intuitions that are the date for such an analysis for that approach to be successful. Murphy also dismissed Dworkin's attempt to settle the question of the appropriate concept of law through the method of constructive interpretation. Murphy asked why we should think, as that method suggests, that the best way to resolve disagreements about the best understanding of a practice or institution is to go with the understanding that shows the practice or institution in the best light.
In the end, Murphy suggested that the project of finding the true concept of law is hopeless regardless of what method is employed. There are just different ways of thinking about the matter. If this is so, how can the question be of more than merely rhetorical practical importance? Murphy suggested what he called a "practical political" method for settling the boundary of the law. The boundary of the law should be located where it will have the best effect on our self-understanding as a society.
In order to illustrate what he had in mind, Murphy offered an argument for the conclusion that we should all be positivists. Following Bentham, Murphy suggested that a non-positivist view invites an uncritical attitude toward the directives presented by the state as laws. Suppose that people regard what the state presents as laws as probably being laws. If this is so, because of the way law and morality are intertwined on a non-positivist view, people regard what the state is presenting as law as probably not that bad. Suppose instead that a non-positivist view led someone to regard many of the legal directives in her state as unlawful. This might still lead to "quietism" because the solution to this problem would seem to be to demand that the state live up to its true nature rather than to really criticize the state.
Murphy went on to consider other practical arguments that might be offered on both sides of the law/morality question. He suggested that neither side is obviously correct. But, rather than continuing to canvass these arguments, Murphy turned to the implications of this way of approaching the law/morality question. Murphy considered an objection of Dworkin's to Hart, modified so as to be pressed against Murphy's view. On Murphy's view, in the absence of widespread agreement about the concept of law, one might worry that there is no right answer regarding what the law is. Murphy conceded that there are some cases in which this conclusion might follow but suggested that there is a substantial core to the concept of law that is widely shared and hence that there will be many cases in which the question of what the law is should be regarded as settled.