It’s official. The decades-long Hart–Dworkin debate, hashing out the relationship between law and morality, is over. This is just one take-away from University of Michigan Professor Scott Hershovitz’s winsome and entertaining new book, Law is a Moral Practice. 

Hershovitz explores the nature of law, authority and obligation, though he does not limit his discussion to inside-baseball arguments over legal positivism. Rather, he aims his overall argument, as did Ronald Dworkin, at contesting the inconsistently applied and intellectually lazy moral relativism that dominates the legal academy in the guise of legal positivism.

Hershovitz aims to make his book accessible to readers not steeped in the long (and sometimes esoteric) debate in legal philosophy over the relationship of law and morality. In this, he largely succeeds. Nonetheless, a bit of background on the Hart-Dworkin debate in modern academic jurisprudence helps position Hershovitz’s argument in the broader discussion.

Hershovitz and the Hart-Dworkin Debate

The decades-long “Hart-Dworkin” debate is a modern manifestation of the centuries-long debate between natural law theories and legal positivism. To be sure, both Hershovitz and Richard Dworkin distance themselves from the natural-law label, not because it doesn’t fit their theories but rather because they think the label “unhelpful.” The reason they find the label unhelpful, I suspect, is that both recognize the risk of having their work cursorily dismissed on account of the academic prejudice against natural law. (Philip Pettit, for example, summarily dismissed natural law and natural rights theories as “hard to take seriously” because “they belong with the notion of a god and god-given law.” Forsooth!)

That said, at a minimum, natural law theories assert the existence of a necessary moral component when identifying the existence and content of law. So for categorical convenience, and the absence of their own nimble alternatives (Hershovitz would label his theory “the Moral Practice Picture”), I lump Hershovitz and Dworkin in with the set of natural law theorists.

Legal positivists, on the other hand, deny there is a necessary moral component when identifying the existence and content of laws.

The locus of the dispute between the two schools of thought is not whether law has a moral component. Rather, the dispute circles around the question of whether this moral component is necessary for identifying the existence and content of laws. 

On this score, positivists have faced some prejudice as well. Legal positivism is often styled as rejecting any connection between law and morality. Yet as H. L. A. Hart, the leading positivist legal theorist par excellence, writes, “It cannot seriously be disputed that the development of law, at all times and places, has in fact been profoundly influenced both by the … morality and ideals of particular social groups.” 

The precise point that Hart and positivists reject is “the general contention that between law and morality there is a connection which is in some sense ‘necessary,’ and that it is this which deserves to be taken as central, in any attempt to analyze or elucidate the notion of law.”

As John Austin, the nineteenth-century grandfather of modern legal positivism, put it, “The existence of law is one thing; its merit or demerit is another.”

Austin’s point strikes most modern legal scholars as obvious if not commonsensical. This, combined with a Weltanschauung in the academy that pretends to eschew moral distinctions (while in fact only sublimating them), results in positivism dominating among modern legal scholars.

Yet it is precisely at this point, on the “necessity” of a law’s moral status to its identification as “law,” that Dworkin and Hershovitz contest the dominant positivist view.

In his book, Law’s Empire, Dworkin argues that legal practitioners do not identify the existence of law the way legal positivists do. For positivists, law is a social fact. That is, social recognition of one sort or another is what makes a “law” a law for positivists. This recognition is often (although not exclusively) provided through the decisions of authoritative government officials like judges and legislators.

In a subtle yet clever argument, Dworkin challenges the positivist view in Law’s Empire by drawing on four illustrative appellate cases in which disputes circled around what the laws at issue in the cases required. Dworkin observes that the very existence of a dispute over each law’s meaning demonstrates that there was no agreement among public officials on what the law said. That disagreement between public officials in turn demonstrated that the content of the laws at issue were not (yet) actual social “facts.” Instead, the appellate cases sought to establish what the law in fact was. 

So if the existence of a law derives from the fact of social consensus regarding the law, then in none of these cases did a law actually exist on positivist grounds.

While Hershovitz rightly makes “obligation” an important concept in discussion of deference to law, he does not provide an account of why and when laws normatively oblige us.

It is at this point that Dworkin twists the analytical knife: Dworkin observes that all of the judges and attorneys in the cases articulated their arguments as though the law already existed; none argued as though there was no preexisting law. If they were engaged in a project of creating or establishing law, it does not appear they either knew this or wrote their briefs and opinions to reflect it.

From this subtle, but important, observation, Dworkin concludes that legal practitioners do not actually behave the way positivist theory predicts they should behave. For if positivism were correct, the legal practitioners in these cases would have started with the premise that there was no law in these cases and that they were engaged in the process of creating law to address the legal issues. In identifying the law that the participants believed already existed in these contested cases, the judges (and lawyers) invoked different values—justice, morality, and policy concerns—to identify what existing law was. Hence, normative concerns inhered in the very warp and woof of the existence and content of law.

Can’t We All Get Along?

I confess I have long thought the partisan insistence on the mutual exclusivity of positivism and natural law theories overwrought. On the one hand, natural law theorists have long recognized that there are governmental commands that we can describe as “law” even when they are unjust. (See, for example, Aquinas’s Treatise on Law in the Summa, q. 92, a.1 and q. 93, a.3.) Even the phrase “unjust law” necessarily posits a text sharing some positive attribute of “law.” Hershovitz concedes the point as well, agreeing that there is integrity to identifying law merely as social fact, meaning he concedes real value to the positivist project.

On the other hand, positivists, too, concede, albeit implicitly, that law properly conceived includes a necessary normative component. Hart (in company with other positivists) recognizes that “law” properly conceived “obliges” people to obey, and this sense of obligation is not accounted merely by responses to the threat of force (that is, by the probability of getting caught and the magnitude of punishment if caught). Rather, this sense of obligation derives significantly from moral sense and not just from the threat of force. (For example, income tax compliance among Americans, even today, appears to exceed what would be justified by the mere probability of getting caught multiplied by the magnitude of the penalty.)

That said, positivists engage in sleight of hand to avoid appearing formally to concede the necessity of moral judgment in obligation: Hart, for example, argues that the moral feeling people have that law obliges obedience is a social fact and not a moral fact. But here Hart lets himself off too easily.

To be sure, one could take a survey of people’s attitudes and ask them whether they believe that law obliges them beyond behavior compelled by the magnitude of sanction and the probability of getting caught. That would indeed report a social fact, as Hart’s theory posits. But that report of a social fact doesn’t do all the work that Hart’s theory requires of obligation. Asked why they feel obliged to obey (some) laws even when there is little risk of getting caught, people do not report that they feel obliged because of the existence of the social fact of obligation. That is, no one explains that he feels obliged merely because other people report feeling obliged to obey the law. People instead report that their feelings of obligation stem from some moral value or commitment derived from the authority or legitimacy of the law (however derived). 

Law as an Intrinsically Moral Practice 

It is at this point that Hershovitz picks up the argument, arguing that the sense of “obligation” we have regarding obedience to law entails that law is an inescapably moral practice. 

For Hershovitz, “morality concerns what we genuinely owe each other” and “we employ legal practices in an effort to adjust who owes what to whom.” Therefore law is necessarily a moral practice: “When legal claims are moral claims, there is no gap between the judgment that someone is legally obligated to do a thing and the judgment that she is morally obligated to do it.”

That’s fine, but why does Hershovitz think that is an important conclusion?

Hershovitz argues that a significant amount of deference to law among people derives from the non-coercive moral obligation of law. He does not deny that some obedience flows from the threat of coercion, but Hershovitz argues that behavior induced merely from that threat does not nearly account for all of law’s ability to form and guide behavior. 

The point I want to make is that the philosophical conversation about the moral significance of legal practices is impoverished, in part because it is preoccupied with the question whether, when, and why it generates obligations of obedience, when in fact many of the obligations that law generates are not obligations of obedience to an authority’s directives.

Yet while Hershovitz underscores the important normative implications of the sense of obligation in inducing legal obedience—and I do think it is an important and often neglected point—I nonetheless found his discussion of obligation and law ultimately unsatisfying.

While Hershovitz rightly makes “obligation” an important concept in discussion of deference to law, he does not provide an account of why and when laws normatively oblige us. Ironically, Hershovitz provides little more than a descriptive, positivist answer to this question, writing that legal officials “make claims about what others are genuinely obligated to do as a result of legal practices, and the practices are presented as ways of generating those obligations.”

Yet as Hershovitz himself argues at another point, what’s important is not what officials “claim” to be true, what’s important is what is true. And there is a long tradition in jurisprudence that considers the conditions under which laws “genuinely” obligate us.

Aquinas, for example, initiates his discussion of law in the Treatise on Law with the idea of obligation (q. 90, art. 1) and devotes extensive consideration to the conditions under which law binds or obliges us normatively. More recently, John Finnis, in Natural Law & Natural Right, like Hershovitz, makes “obligation” a central analytical theme in his work. But “obligation” is not a set of static concepts for Finnis as it is for Hershovitz. Rather, Finnis argues that “the moral obligation to obey each law is variable in force.” Finnis then provides an extended consideration of the conditions under which legal obligation can vary.

Even positivist legal theorist H. L. A. Hart carefully distinguishes different positive and normative senses in which we are “obliged” to do something. The robber might “oblige” us to hand our money over, but we most certainly have no moral obligation to obey his command, as we generally do with a law.

Hershovitz ends up making the same basic point that these authors (and others) already made regarding law and obligation, yet stops well short of other authors in identifying conditions under which legally-generated obligations are “genuine” (or legitimate or justified) or not.

This is a lamentable limitation in Hershovitz’s argument. Nonetheless, there may be a method to his madness. Given the audience Hershovitz writes for—legal scholars and legal practitioners, in particular—he may be content to focus his challenge to academic orthodoxy on the conceit that intellectual sophistication requires commitment to moral relativism. 

Both Dworkin and Hershovitz challenge this casual relativism directly. Hershovitz bluntly dismisses people who claim to be skeptical about morality with the observation that they don’t really “act like it.” Dworkin, too, provides a blunt rejoinder to the ostensible moral skeptic. He writes that if a person “really believes … that no moral judgment is really better than any other, he cannot then add that in his opinion slavery is unjust.” Perhaps that’s enough in today’s academy. Nonetheless, in referring to “genuine” legal obligations Hershovitz implies the existence of conditions in which the form of law exists but in which legal obligation does not genuinely arise. Articulating just what those conditions are would seem to me to be an important issue in accounting for just how “law is a moral practice.”