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Constitutional Interpretation and Legal Theory: Are Positivists Committed to a

Particular Theory of Adjudication?

First, I examine the core elements of legal positivism, and argue that ‘positivist’ is a

label given to an abstract theory about the nature of law and interpretation. Second, I

examine how this abstract theory might influence choices between different theories

of adjudication. Finally, I argue that, while positivist theories of adjudication differ

greatly, all positivists must be prepared to accept the possibility that in some

circumstances it would be right for a judge actively to disobey the law, and that the

scope for such judicial disobedience within positivism is somewhat wider than might

at first be thought.

The Central Tenet of Positivism

The heart of positivism is a theory, not about adjudication, but about the nature of law

and legal interpretation. What positivists all agree on, is the possibility of the existence

of morally bad laws. This foundational belief carries with it the logical consequence

that in at least some legal systems, at least some of the time, it would be possible to

interpret the law in a way which is “morally sterile”.1 Holding to this belief is a defining

characteristic of positivism.

This might seem to present an artificially abstract version of positivism. The name

‘positivist’ has become so associated with a dry analytical approach that someone

could be forgiven for slipping into thinking that positivists are, by definition,

1 Frederick Schauer, Constitutional Positivism, (1992) 25 Conn. L. Rev. 797 – at p.810

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automatically committed to morally dry theories of adjudication. But as Schauer puts

it, “nothing about positivism compels the idea that only legally pedigreed rules should

guide judicial decisions…nothing in positivism commits any decision-maker, including

a judge in a court of law, to treating positivistic norms as the exclusive input into

decision-making”.2 Similarly, both Hart and Gardner contemplate a “complete rupture”

between the abstract doctrines of positivism and theories of adjudication.3 Fiss

expresses the same view, saying, “though positivism…celebrates the distinction

between is and ought…it in no way favours the is”.4 Accordingly, the major works of

positivist jurisprudence (including The Concept of Law5) do not consist principally in

theories about what judges should do.

To the extent that individual positivists do have theories of adjudication, these vary

from the most staunchly originalist to the most radically activist. 6 Some variants of

positivism espouse theories of adjudication which are themselves morally sterile, and

take up a scientific and naturalistic methodological stance; but it is equally true that

many professing to be positivists have subscribed to very morally rich theories of

adjudication,7 and some have even derived their positivist theories of law and

interpretation directly from a commitment to evaluative methodology.8

2 Frederick Schauer, Playing by the Rules: A Philosophical Examination of Rule-Based Decision-

Making in Law and in Life, (1991) OUP – at p.200
3 David Dyzenhaus, ‘The Genealogy of Legal Positivism’, (2004) 24(1) Oxford Journal of Legal

Studies 39 – at p.56
4 Owen M. Fiss, ‘The Varieties of Positivism’, (1980) 90 Yale L.J. 1007 – at p.1007
5 H.L.A.Hart, The Concept of Law, (2012) OUP
6 Edward A. Purcell Jr, ‘Democracy, the Constitution, and Legal Positivism in America: Lessons from

a Winding and Troubled History’, (2015) 66(4) Florida Law Review; and, Anthony J. Sebok, Legal
Positivism in American Jurisprudence, (1998) CUP
7 E.g. Will Waluchow, ‘Constitutions as Living Trees: An Idiot Defends’, (2005) XVIII(2) Canadian

Journal of Law and Jurisprudence 207

8 E.g. Jeremy Waldron, ‘Normative or Ethical Positivism’, in Jules Coleman ed., Hart’s Postscript,

(2001) OUP

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These facts about how positivists in practice treat adjudication do not, however,

answer the question whether the core insight of positivism – the possibility of a “morally

sterile” theory of interpretation – has any logical consequences for theories of

adjudication. Does that abstract thesis logically commit the positivist to any particular

view about how judges should act?

Theories of Interpretation and Adjudication

Unlike natural law theorists who are logically committed to treating the question ‘how

should judges act?’ as a variant of the question ‘what is the law?’, positivists must treat

“the questions, ‘what is the law?’, and ‘how should judges decide cases?’ as distinct

questions with distinct answers”.9 How a judge should proceed when confronted by a

‘gap’ in the law (which makes it impossible to determine the right answer on the basis

of law alone),10 or when confronted by a deeply immoral law is, for the positivist, an

inherently moral question – different in kind from the analytical question of what the

pre-existing law actually is. So, for any positivist, a theory of adjudication must be

based on ethical reasons rather than analytical reasons of the kind normally used to

justify theories of interpretation.

For positivists, theories of adjudication, as Raz observes, “are justified only if they are

morally justified”.11 Hence, even a positivist who holds a morally neutral theory of

adjudication and concludes that judges should simply apply the law neutrally by

9 Julie Dickson, ‘Interpretation and Coherence in Legal Reasoning’, (2010) Stanford Encyclopaedia of
Philosophy – at p.3
10 Hart supra n.5 – at p.123–36; and, Joseph Raz, ‘Legal Reasons, Sources and Gaps,’ in The

Authority of Law, (1979) OUP

11 Joseph Raz, ‘On the Authority and Interpretation of Constitutions: Some Preliminaries’, in On

Authority and Interpretation, (2009) OUP – at p.355 [emphasis added]

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reference to legislative intent or reliance on the text alone, must defend that conclusion

on moral grounds. Such a positivist’s reasons for holding a morally neutral theory of

adjudication cannot themselves be morally neutral.

It would be both surprising and interesting then, if positivists were logically committed

to a particular answer to the inherently moral question: ‘how should judges decide

cases?’. There is no obvious reason to suppose that an abstract analytical theory of

the nature of law, should contain within it the logical seeds of a particular view about

an ethical issue of this kind.

Positivist Theories of Adjudication

There is, however, one particular feature of adjudication that is (ethically even if not

logically) implied by the positivist theory of law and interpretation.

If it is true, as positivists claim it is, that there can be morally iniquitous laws which are

still properly called laws, and true also that in some legal orders judges can only

interpret those laws in a morally sterile way, then, it must also be true – as a matter of

ethics – that judges should sometimes disobey the law.

The positivist is, in other words, logically committed to saying, as Hart said, that “the

certification of something as legally valid is not conclusive of the question of

obedience, and that, however great the aura of majesty or authority which the official

system may have, its demands must in the end be submitted to moral scrutiny”. 12 No

12 Hart, supra n.5 – at p.210

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morally defensible case can be made for a positivist theory of adjudication which fails

to allow for the possibility of judicial disobedience and insists on an absolute judicial

“duty of fidelity to law” even in cases where such fidelity would lead to morally

abominable results.13 Indeed, at the extreme, a legal system which achieved no moral

good whatsoever would create no obligation whatsoever for judges to follow the law.

So, all positivists are bound, ethically, to conclude that judicial fidelity to the law is

dependent on the law’s content. But, although all positivists accept this ethical point

and agree that the connection between positivism and judicial obedience is content-

dependent (and hence also agree that certain circumstances ethically demand judicial

disobedience) they disagree about the particular circumstances in which such judicial

disobedience would be appropriate. In particular, they come to different views about

how much moral content is needed in a particular system’s laws to make a good moral

case for an absolute judicial obligation of fidelity to law. It is to those differences that I

now turn.

(a) Fidelity in (Almost) All Legal Systems

At one end of the spectrum are those positivists who think that the bare fact of a legal

system’s existence will give rise to strict moral obligations on the part of judges (and

citizens) to obey the law. For the Hobbesian, a judge’s fidelity to law is crucial, and so

a minimalist theory of adjudication inevitable. A judge must settle the case before him

in a way which does not “reignite, the controversies whose existence called for a

13I use ‘fidelity to law’ in the same way as both West and Raz use it in: Raz ibid.; and, Robin West,
‘Natural Law Ambiguities’, (1992) 25 Conn. L. Rev. 829

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decision-procedure in the first place”.14 If judges do not have fidelity to the law, the

consequence is the inevitable ‘war of each against all’. What both ancient and

modern15 Hobbesian theories have in common, is that their originalism is motivated

by a concern about the law’s authority – by the worry that if judges are too creative

and activist, then the stability of the legal system will be jeopardised with the

consequent risk of anarchy.

Even theories which, like those of Hobbes, argue for a strong judicial duty of fidelity to

the law, still do so in a content-dependent way. If judicial obedience to the law would

somehow result, for example, in nuclear war, then even the Hobbesian must admit

that judicial disobedience is the only option. Hobbes explains that the reason for

absolute obedience to the sovereign lasts only as long as the sovereign can prevent

anarchy – if the sovereign can no longer provide for the “protection of his

subjects…[then] every man is at liberty to protect himselfe by such courses as his own

discretion shall suggest unto him…[If] the Power of an Assembly is once suppressed,

the Right of the same perisheth utterly”.16

But Hobbes was pressing his point to an extreme when he suggested that so long as

a sovereign could prevent anarchy, absolute obedience was necessary. Not every act

of judicial disobedience inevitably leads to anarchy – stable modern states can surely

tolerate a modicum of judicial disobedience without collapsing. In a legal system which

is incontestably iniquitous, and in which a judge can disobey the law without provoking

14 Jeremy Waldron, ‘The Core of the Case against Judicial Review’, (2006) 115(6) Yale L.J. 1346 – at
p.1371
15 E.g. Andrei Marmor, Interpretation and Legal Theory, (2005) Hart – particularly Ch.8 & 9
16 Thomas Hobbes, Leviathan, (2012) OUP, Noel Malcolm ed. – at p.518

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anarchy, it seems clear that – even in Hobbesian terms – he ought to do so as much

as is possible without causing a descent into anarchy.

So, while a positivist might well accept the Hobbesian argument that judges should

obey the law enough of the time to prevent a collapse into anarchy, they are not bound

to accept the claim that judges have an absolute obligation do as the law says.

(b) Fidelity in Democratic Systems

The failure of the argument from authority to establish absolute judicial obligation leads

other positivists to ground the assertion that judges should always be obedient to the

law on other values. For example, although substantively Bentham’s position “hardly

differs from that of Hobbes”,17 he also introduces an important new argument: under

a democratic government the argument for absolute judicial obedience is even

stronger than under undemocratic rule.

Some of Bentham’s positivist contemporaries regarded his unwavering faith in the

democratic order as misplaced. Austin’s argument that the opinion of the “ignorant

masses”18 should be constrained by the judgement of the better educated judicial elite

now seems anachronistic. But there are more compelling arguments against

majoritarianism available. First, German history in the last century has surely taught

us that an ‘elective dictatorship’ can result in truly abhorrent consequences. Second,

as Bielefeldt notes in his critique of Schmitt, democracy is not simply “the

17Dyzenhaus, supra n.3 – at p.43

18David Dyzenhaus, ‘The Incoherence of Constitutional Positivism’, in Grant Huscroft ed.,
Expounding the Constitution, (2008) CUP – at p.149

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unconstrained expression of the collective political will of the people”, but rather, is an

expression of the values of “equal freedom and participation”.19 It would be

nonsensical to allow, in the name of democracy, the denigration of values on which it

is based. Sheer majoritarianism cannot be supported simply by the accusation that

judicial disobedience is undemocratic.

(c) Fidelity in Properly Functioning Democratic Systems

So modern positivists have retreated to the much weaker claim that judges in ‘properly

functioning’ liberal democracies should always be obedient to the law. Waldron, for

example, argues that judicial disobedience would only “be appropriate in legal orders

that have not yet made the transition to liberal democracy”.20 Absolute judicial

obedience is, for Waldron, required only when a system contains laws which ensure

that “legislative and electoral arrangements are in good working order”. 21

Other ‘ethical positivists’ have expressed similar sentiments – Campbell, for example,

argues that if judges in liberal democracies think that applying the law is an “immoral

activity, they should resign their position”.22 Campbell’s argument from deliberative

democracy invokes powerful Rawlsian ideas about just institutional design. As Rawls

says in his earlier work, “if the basic structure of society is just, or as just as it is

19 Heiner Bielefeldt, ‘Carl Schmitt’s Critique of Liberalism. Systematic Reconstruction and

Countercriticism’, in David Dyzenhaus ed., Law and Politics: Carl Schmitt’s Critique of Liberalism
(1998) Duke University Press – at p.33-34
20 Dyzenhaus, supra n.18 – at p.150
21 Waldron, supra n.14 – at p.1362
22 Tom Campbell, The Legal Theory of Ethical Positivism, (1996) Dartmouth – at p. 113

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reasonable to expect in the circumstances, everyone has a natural duty to do his part

in the existing scheme”.23

But even these more moderate “neo-Benthamite”24 theories have been challenged.

Thinkers like Goldsworthy, although holding quite similar views to Waldron and

Campbell about the role of judicial creativity and innovative interpretation where legal

standards are indeterminate,25 still argue that there are “limits of judicial fidelity to law”,

and suggest that even in properly functioning liberal democracies there might be

“obvious and extreme cases of injustice”,26 in which judicial infidelity to law might be

positively desirable.

(d) Infidelity Under Exceptional Circumstances in Properly Functioning Liberal

Democracies

Even if Goldsworthy is right that “damage to public confidence in the judiciary seems

unlikely” to be caused by occasional judicial disobedience, the issue remains how a

judge is to know when he is faced with a genuine case of injustice – how is he to know

that his own judgement is better than that of the democratically elected

representatives? If a system has not succumbed to sheer majoritarianism, and the law

in question is not one which undermines the very values on which democracy is based,

then on what moral grounds, other than the subjective dictates of his own conscience,

can the judge refuse to obey that law?

23 John Rawls, A Theory of Justice, (1971) CUP – at p.115

24 Dyzenhaus, supra n.18
25 E.g. Jeffrey Goldsworthy, ‘Raz on Constitutional Interpretation’, (2003) 22(2) Law and Philosophy

167
26 Jeffrey Goldsworthy, ‘The Limits of Judicial Fidelity to Law’, (2011) XXIV(2) Canadian Journal of

Law and Jurisprudence 305 – at p.321

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While Goldsworthy fails to answer these questions, other positivists have sought to do

so – Brand-Ballard, for example, specifically addresses this issue. Beginning by

assuming a positivist theory of interpretation he argues that even in a liberal

democracy, there might be good moral reasons for judges to deviate from the law. He

lays down “guidance rules” for judges, which he argues will enable them to work out

when it will be morally right to disobey the law. 27 He argues that “in realistic legal

systems it is impossible to guarantee, a priori, that a judge will never hear a case in

which he has an all-things-considered moral obligation” to disobey the law.28 So, he

argues, if judges restrict their disobedience to only a very small portion of those laws

which they think morally wrong, there is likely to be significant overlap between those

laws which they deviate from, and those laws which actually create a morally bad

outcomes.

Brand-Ballard is surely right to conclude that – within a positivist framework – the only

morally appropriate way for judges to proceed is to create for themselves rules of

guidance which allow for the possibility of deviation from the law in extreme

circumstances. The fact that a law is democratically enacted does not provide a

guarantee that it is morally justifiable. The morally right action for a judge then, is to

devise a decision procedure with a high threshold which gives his own moral

judgement some epistemic credibility, and requires him to presume that the

democratically enacted law is just unless he has very strong reasons for concluding

the contrary. The overall utility achieved by such a rule would, if it leads judges to

27 Jeffrey Brand-Ballard, Limits of Legality: The Ethics of Lawless Judging, (2010) OUP – at p.233
28 Ibid. – at p.312

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disobey the law only in cases where they have great certainty both that the law before

them is unjust and that their disobedience will not result in anarchy, be greater than

that of a rule demanding absolute obedience.

Conclusion

The simple conclusion is that being committed to the positivist view that morally

iniquitous laws can exist, means one is also committed to the view that judges

sometimes have an all-things-considered moral obligation to disobey the law.

I have argued, further (and more tentatively), that positivists ought to accept a theory

of adjudication which allows for judicial disobedience in less than extreme (but still

fairly exceptional) circumstances.

I have not explored the extent to which it is legitimate for judges who are obedient to

the law to engage in 'creative' interpretation, or to make new law when the result is

underdetermined by the text. These questions are no less important than the question

of when judges should disobey the law; indeed, in a liberal democracy with an

entrenched bills of rights, these are the most pressing questions of constitutional

theory. But they are not questions the answer to which is either logically or ethically

determined by the abstract doctrines of legal positivism.

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