DETMOLD'S REFUTATION OF POSITIVISM AND THE COMPUTER JUDGE1
| Date | 01 January 1986 |
| DOI | http://doi.org/10.1111/j.1468-2230.1986.tb01681.x |
| Author | Richard E. Susskind |
| Published date | 01 January 1986 |
REVIEWS
DETMOLD’S REFUTATION OF POSITIVISM AND THE
COMPUTER JUDGE’
THE UNITY
OF
LAW AND MORALITY: A REFUTATION
OF
LEGAL
POSITIVISM.
By
M.
J.
Detmold, London: R.K.P.,
1984,
pp.271,
f15.00.
I
IN
his recent book, The Unity
of
Law and Morality, according to the sub-
title that it bears,
M.
J.
Detmold falsifies the positivist thesis. It is,
however, only one aspect of the positivistic posture that Detmold attacks:
the separation of the law and morals doctrine.
He
goes about his assault
on this widely accepted principle in a rather mystical manner, painting on
a vast canvas with
a
very broad brush; but all too often, he fails to cover
the necessary material thoroughly. In certain aspects of style and
metaphysics, Detmold often resembles the early Wittgenstein: for example,
in his usage
of
short and esoteric sentences, and in his awe at the very
existence
of
our world. Yet unlike an encounter with, say, Tractatus
Logico-Philosophicus, which leaves one with the impression that there has
been a mammoth, unresolved but no doubt worthwhile struggle between a
remarkable intellect and intractable philosophical problems, one feels a
little disappointed after a careful reading of The Unity
of
Law and
Morali:y, for Detmold leaves many crucial gaps unattended to, and does
not successfully collect his arguments together into a coherent whole.
Tantalisingly, Detmold frequently leaves the reader to guess how some
of
his yawning cavities might be filled.
At the outset, Detmold tells us
of
his method
of
analysing the concept
of law.
He
does not intend to confront the positivist thesis directly, and
propound his theory on the basis
of
its failures (as, say, Hart does with
Austin’s jurisprudence in The Concept
of
Law) but, rather, he prefers “the
taking
of
problems as they come,”* an approach which allows him-with
some subtlety-to avoid some crucial questions. The end result, as
I
have
said, is disappointing because the book lacks coherence. It is all the more
frustrating because his ideas about legal judgments and particulars, and
the nature
of
facts in general, are stimulating and well worth the more
detailed and sustained consideration that a direct confrontation
of
legal
positivism might have yielded.
Like anyone who eschews a version
of
positivism and seeks to espouse
an anti-positivist position, Detmold sets himself a daunting task that
necessitates not only a profound examination
of
the concept
of
law, but
also regular encounters with moral philosophy and metaphysics.
A
glance
at the useful seven-page synopsis that prefaces the study reveals that
Detmold covers a great deal of ground.
As
has come to be expected in a
contemporary work
of
analytical jurisprudence-which, amongst many
I
1
would like to thank Colin Tapper for his advice regarding earlier drafts of this
article.
I
am also extremely grateful to Professor
H.
L.
A.
Hart who having read an
earlier version of this paper referred me to several relevant works of which
I
was
unaware. Finally,
1
am indebted to those of the Oxford University Computing Laboratory
who have allowed me the facilities of the Programming Research
Group.
125
p.xix.
126
THE
MODERN
LAW
REVIEW
[Vol.
49
others things, is what
The
Unity
of
Law and Morality
is-Detmold offers
an examination of Hart, Dworkin and Raz, all of whose general
jurisprudential orientations he criticises heavily (although he does follow
and acknowledge many of Raz’s arguments in the latter’s
Practical
Reason
and Norms3).
Remarkably Detmold never refers to the writings of
J.
M.
Finnis and
J.
W.
Harris, treatment of whose works might well have
enhanced the study. Beyond the three standard figures
of
modern Oxford
legal theory, Detmold summarily considers features
of
other prominent
philosophers, not all of whose writings are popularly regarded as belonging
to mainstream legal theory-Searle’s derivation
of
“ought” from “is”;
Anscombe’s notion of brute facts; Hare’s work on universalisability; Kant’s
notion of
a priori
concepts; Plato’s cave metaphor-and not all
of
whose
writings seem entirely germane to Detmold’s enterprise.
Fundamental to Detmold’s concept
of
law, and indeed central to many
of
his arguments, is the notion of “reasons for action.” In this he owes
much to Raz’s general account
of
normativity in terms
of
reasons for
action in
Practical
Reason
and Norms.
In light of reasons for action,
Detmold analyses rules, principles, case-law and precedent, statute law,
constitutional law, and even the world itself (no less). He expends a great
deal
of
energy in discussing weighing of reasons in relation to Dworkin’s
principles and in this there are to be found many penetrating insights. But
it is one of his, as he puts it, “consistent theme~,”~-that of refuting legal
positivism-that most who are interested in legal theory will be eager to
know about and in the following, having briefly reflected
on
Detmold’s
metaphysical inclinations,
I
shall examine his rejection of the separation
of
law and morals thesis, first, in relation to descriptive legal science, and,
second, in connection with the idea
of
a computer judge.
His venturer into metaphysics (secular jaunts, it should be noted) are
undoubtedly obscure and often constitute no more than unsubstantiated,
stipulative assertions. The following may serve as examples:
“The pure existence
of
the world is mysterious. The importance of
this for moral philosophy is that it identifies what in the world
requires respect. Mystery requires respect.”5
The moral sceptic who denies this, Detmold tells
US,^
is committing a
logical error. He suggests that the same point can be expressed in terms
of
beauty and love:
“the correlative of beauty is love. It is not possible to affirm the
beauty
of
a particular but deny love. But is that not what the moral
sceptic is doing when he denies respect? The affirmation
of
the
mysterious particularity of the world is an affirmation
of
beauty. The
denial of respect for that world is simply a denial of love.”’
This kind of discourse is, to say the least, enigmatic: and, it should be
added, it is no less abstruse when encountered in context. The same has to
be said of his concluding chapter entitled unambiguously “The World,” a
32-page discussion in which he propounds his world view. Detmold is,
I
think, a naive metaphysicist, and while he perhaps deserves praise for
’
(1975).
p.xix.
0.4.
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