The Autonomy of Law: Essays on Legal Positivism. - book reviews

Contemporary Review, March, 1997 by Radmila May

'Law is the cement of the social order' states Professor Lewis in Choice and the Legal Order. But Mr Lewis also reminds us of 'the traditional hostility (in the United Kingdom) to courts and lawyers' which has resulted in discussions about the nature and purpose of law and the standards by which it should be evaluated being relegated to the margins of political and intellectual discourse. These great issues have largely been left to lawyers, most of whom, whether practitioners, academics or students, have their noses kept too firmly to the grindstone of daily life to think about such matters very much, if at all.

But recent events in the United Kingdom have provided dramatic examples of how a society without law would function. Two such occurred while this review was being written. Disruptive pupils reduced several schools to anarchy so that two were temporarily closed for order to be restored. Secondly, the widow of a London headmaster, killed while protecting a young schoolboy, called for a return to morality in society.

In such a climate, the importance of the correspondence (or lack of it) between law and morality is obvious. Legal positivism, with which The Autonomy of Law is concerned, maintains that there is no necessary connection between law and morals. The eleven essays, by seven US academics, three British, and one German practitioner, which make up this book, consider recent developments in thinking on this subject. Legal positivism, while primarily a descriptive analysis, i.e. concerned with what the law is rather than what it should be, is not totally divorced from morality. Indeed, in practice most laws have a moral dimension. But a bad law, by this analysis, is still a law: what do we do when faced with it? Or a law which we believe to be bad, which may not be the same thing? The constitutionally correct but morally unacceptable laws of Nazi Germany are an extreme example: more problematic might be the question of civil disobedience as a response to roadbuilding through unspoilt countryside. The contributors to The Autonomy of Law would certainly not agree that legal positivism advocates blind obedience to existing laws.

But law is not static: it is constantly subject to change, extension and reinterpretation whether by legislation or judicial decisions. This is where notions of 'morality', 'the public good', 'essential rightness' come into play: how should these notions be defined? For example, legislation currently before the British Parliament will impose minimum sentences for certain offences, as discussed in February's Contemporary Review. Some senior judges have opposed the introduction of such a concept, new to British law; they feel that the proposal is constitutionally improper because it restricts the independence of the judges in their sentencing function. However, the legislation does allow for 'exceptional circumstances'. Assuming that the legislation is enacted and the phrase comes to be considered by the Court of Appeal, how should that Court interpret it? Narrowly, as the majority in the democratically-elected Parliament undoubtedly intend? Or more broadly, as it seems the judges (who are appointed, not elected) themselves would think right? Such conflict between the courts and Her Majesty's Government is frequent on a variety of issues and is of concern to us all. Whose morality should be applied?

Tall Stories? is, like The Autonomy of Law, a collection of essays. The thirteen contributors are all British, mostly from Queen's University, Belfast. But its standpoint is radically different from that of the classical legal positivist: law is not an isolated phenomenon, but a product of the society which has created it. Therefore it reflects that society's values, and may be challenged, indeed, must be challenged where those values are seen to be defective. The volume specifically examines how literature (i.e. non-legal sources) can open for discussion issues such as justice/injustice, the social creation and policing of concepts of deviance, standards of 'ethical lawyering'. Although the writers have in mind law degree students, these issues are of great importance to us all as society apparently fractures before our eyes and we see no clear way in which it can be shaped. Can literature (here very broadly defined) help us to examine these issues? Tall Stories? declares that it is not a manifesto: that, at least to this reader, is its problem. The variety of viewpoints, the differences of approach, the somewhat eclectic view of what literature should be considered, the tendency to literary critical jargon (by comparison even United Kingdom tax legislation seems a model of clarity and succinctness), all combine to make Tall Stories? appear rather incoherent: a good idea, but one which needed more of an overall guiding hand than it received.

The third book, Choice and the Legal Order, is rather different from the other two; it is more obviously political in intent, a call to action, not a basis for discussion. It is a meticulously argued book which has clearly influenced the British Labour Party's thinking on constitutional reform. Its origins lie in the way that governments, particularly that of the United Kingdom, have, since 1979, while paying lip-service to the concept of choice, instituted massive constitutional change with the minimum of debate. The author details areas of national life, such as the decrease in local authority powers, the growth of high unemployment and insecure employment, the emasculation of trade unions, and the move away from state welfare provision, in which a facade of 'free choice' with little or no public discussion of the issues and their implication. He believes that the way these changes have occurred is essentially undemocratic, and that this can only be remedied by constitutional provision to ensure that the citizen's right to debate any future changes is protected by law. He identifies a 'virtuous triangle' of individual, state and community which the constitution should by legislation assure: how the individual can exercise maximum and genuine freedom of choice without unduly restricting freedom for others.