Being Positive About Positivism
| Author | Patrick Capps |
| Date | 01 September 2000 |
| Published date | 01 September 2000 |
| DOI | http://doi.org/10.1111/1468-2230.00293 |
REVIEW ARTICLE
Being Positive About Positivism
Patrick Capps*
Matthew H. Kramer,In Defense of Legal Positivism: Law Without Trimmings,
Oxford: Oxford University Press, 1999, x + 313 pp, hb £45.00.
I.
The traditional debate concerning the status of morality in attempts to
conceptualise law is well-known, and some may feel justified in suggesting that
further contributions to this debate can only be worthless repetitions of the ideas of
prior and more esteemed theorists. Perhaps signifying this philosophical weariness,
some important legal theorists have reached an entente cordiale.1Legal positivists
(such as MacCormick) and legal idealists (that is, natural lawyers, such as Finnis)
both agree that whilst ultimately law may be connected to morality, legal validity
has no necessary connection with moral obligation.2Therefore, an immoral rule
can still be correctly called a law. Alternatively, such theorists invoke a ‘creation
myth’ which explains that whilst ultimately law is morally preferable to pre-
legality, at any level of social complexity functional imperatives – such as social
co-ordination – take over as the justifying reason for particular laws.3If both
idealists and positivists can agree on such points, then, from the point of view of
analytical jurisprudence, compromise would appear to mean closure. Henceforth,
legal theory can concern itself with more interesting questions.
Whilst not specifically engaging with the idea that this particular compromise
between idealism and positivism is valid, Matthew Kramer, with characteristic
vigour and analytical force, presents a staunch defence of positivism against many
popular forms of idealism and rejects many of the concessions that positivism has
made to idealism. ‘Viewed from all relevant angles’, he claims, ‘law qua law does
not carry inherent moral consequences. Legal positivism is impeccable within the
domain of political philosophy as well as within jurisprudence’ (p 16 and passim).
If Kramer is justified in making this claim, he can be considered to have rekindled
the debate concerning the morality of law.
In what follows, I will argue that Kramer’s defence of legal positivism is a
powerful synthesis of the ideas of some of the most well-known expositors of the
doctrine. Whilst his general approach is negative – in that he attempts to provide
rebuttals to many of the more popular idealist attacks on positivism – he does present
ßThe Modern Law Review Limited 2000 (MLR 63:5, September). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.
774
* Lecturer in Law, The University of Bristol. I would like to thank Henrik Palmer Olsen, Philip Syrpis and
Julian Rivers for their helpful comments on earlier drafts of this review. The usual caveats apply.
1 W. Lucy, ‘Natural Law Now’ (1993) 56 Modern Law Review 745, 757.
2 J. Finnis, ‘The Truth in Legal Positivism’ and N. MacCormick, ‘The Concept of Law and The Concept
of Law’ in R. George (ed.), The Autonomy of Law (Oxford: Clarendon Press, 1996).
3 This theme is developed by Postema in ‘Law’s Autonomy and Public Practical Reasoning’ in George
(ed.), above, n 2.
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