[9.6.3.] Legal Positivism.

 

Milde defines legal positivism as the view that “the legitimacy of law does not depend on a moral warrant, but rather on its derivation from a recognized, authoritative process or procedure.” (61) What follows is a more detailed definition; notice that each of these two claims denies one of the claims of NLT:

 

(LP1) The Social Thesis: Whether a rule or principle counts as law in a given society is a matter of nothing but social convention. Specifically, the law for a given society is just whatever has been enacted by the lawmaking agency of that society. A principle need not meet any moral standard to be law. The law in a give society is just whatever is posited by the recognized law-making entity in a given society. [denies NL1, the Morality Thesis]

 

(LP2) The Separability Thesis: Law is completely separate from morality. More specifically, the question whether a principle is a law is separate from the question whether that principle lives up to any moral standard. [denies LP2, the Inseparability Thesis][1]

 

So, given that Georgia codes about same-sex marriage and marijuana were enacted by a legitimate law-making entity, they are the law... even if they are deeply unjust.

 

Despite the Separability Thesis, legal positivism does not institute an unbridgeable gap between morality and law. It maintains that that the concepts of law and morality are different, but this does not mean that we have to think about them separately.

 

In fact, one of the motivations for adopting legal positivism is to protect the possibility of morally evaluating laws...

 

·         According to NLT, any law has already met some moral standard, so there is no such thing as an immoral law, including an unjust law. Thus, it makes no sense to ask of any specific principle, “This principle is a law, but is it moral?”

 

·         LP, on the other hand, allows us to ask whether a given law is moral, since according to it, law and morality are not the same thing, and thus it is possible for there to be a principle that really is a law even though it is not moral.

 

In this way, LP is supposed to safeguard the very possibility of assessing laws as being morally good or morally bad.

 

 

Implications for Legal Ethics...

 

According to Milde, legal positivism implies that the function of law “is to establish and maintain a stable, intelligible social structure that allows citizens to form and execute the projects that make up human life.” (61) Notice that this function does not involve morality—this is very different from the function implied by NLT.

 

Because of this, LP presents the possibility of a divergence of legal ethics and ordinary ethics that is not allowed by NLT:

 

So long as the social function of law is understood to be something other than the implementation of universal moral principles and commitments, then it is at least possible that the content of legal ethics will diverge from “ordinary ethics.” ... legal positivism is compatible with a distinction between professional, legal ethics and ... “ordinary morality.” (62)

 

For this reason, legal positivism implies that there may be conflicts between the moral responsibilities that a lawyer faces as a lawyer and the moral responsibilities that she faces as a human being.

 

The lesson for the Lake Pleasant Bodies Case seems to be this… To figure out what one’s responsibility as a lawyer is, one must disregard what one’s responsibility is as a person. Or, at the very least, one must allow for the possibility that what morality requires of a lawyer is different than what it requires from a non-lawyer.

·         You still must answer the question: is it morally better to violate the trust that you have established with your client, or is it morally better to hinder an ongoing criminal investigation and to keep from the families of the victims the locations of their loved ones’ bodies?

·         But the good lawyer will not necessarily answer it in the same way as a good person, i.e., as a good moral agent. For example, while it might be the moral duty of a non-lawyer to reveal the location of the bodies, a lawyer might be morally obligation to keep that information secret.

 

 

 

[9.6.4.] Virtue Ethics and Controversy about the Nature of Law.

 

We have already seen that Milde believes that Aristotelian virtue ethics provides the best resources for a fully developed theory of virtue ethics.

 

At the end of the article, he ties together his emphasis on virtue and his examination of three different accounts of the nature of law to provide a further argument in support of viewing legal ethics in terms of virtue ethics [see the final paragraph of the article, p.64].

 

 

 

Stopping point for Friday April 3. For next time, begin reading the article by Monroe Freedman, “Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions” (pp.1469-74) [available for download through JSTOR. Use the “Journal Locator” link on the front page of the UWG Library website and search for Michigan Law Review, then follow the links to volume 64, number 8, 1966.]