An all-too-common misconception of the debate between positivists and non-positivists over the nature of law is that the debate hasn’t progressed since H.L.A. Hart and Ronald Dworkin sparred over the subject in the mid-to-late twentieth century. Emad Atiq’s book Contemporary Non-Positivism dispels that misconception and brings readers up to date on the debate. Published in Cambridge University Press’s “Elements in Philosophy of Law” series, the book provides a concise review of the contemporary literature on non-positivism, while also breaking new ground by articulating and defending a modest “non-positivism without the frills.”
The book’s four chapters address (1) the subject matter and methodology of the positivism/non-positivism debate; (2) arguments against positivism; (3) different versions of non-positivism, including Atiq’s non-frilly non-positivism; and (4) questions for further inquiry. Chapter 1 defines non-positivism as a view about the necessary criteria “for a scheme of social organization to constitute a legal system” (P. 1). According to non-positivism, a legal system “must satisfy not just non-normative criteria … but essentially normative criteria as well, such as being to some extent good, or rational, or just” (id.).
Methodologically, Atiq views his project as “descriptive, explanatory, and synthetic” (P. 4). The aim, he says, “is to catalog what legal rules and practices are generally like and to develop a theory of law that explains the systematic features while being consistent with our considered views on related matters, such as the nature of rules, group agency, language, and morality” (id.). Embracing the terminology of contemporary metaphysics, Atiq suggests that “we’re interested in the essence and grounds of being a legal system,” and relatedly, in the essence and grounds of the individual legal norms belonging to any such system (P. 6).
Chapter 2 lays out five arguments against positivism. First, for much of recorded history, jurists in many legal systems treated principles of rationality and justice as the law (e.g., “natural law”), regardless of local practice. They asserted that the legality of these principles was self-evident. Positivism struggles to explain this fact without resorting to claims that past jurists were either confused or employing a different concept of law than the concept we ordinarily employ today. This is an important objection to positivism that Atiq has developed more fully elsewhere and that positivists, to my mind, have not yet adequately addressed.
The second and third arguments are familiar objections to positivism, associated with Dworkin, based on moral reasoning in adjudication and theoretical disagreements. Everyone agrees that judges sometimes rely on moral reasoning to adjudicate legal disputes. Moreover, judges at least appear to engage in persistent theoretical disagreements over the grounds or determinants of law. While positivists have made various attempts to explain these phenomena, their attempts have generally failed to persuade non-positivists and often require attributing widespread confusion or disingenuity to judges—a theoretical cost.
The fourth argument uses variations on Hart’s “gunman situation writ large” to elicit the intuition that these situations are borderline cases of legal systems—an intuition that positivism struggles to explain. And the fifth argument is that law is a functional, or goodness-fixing, kind: law’s essential function is to realize a normative ideal associated with the rule of law; law is better as law insofar as it instantiates rule-of-law virtues like clarity, generality, and publicity. Crucially, just as a radically blunt object cannot be a knife, something cannot be law if it radically fails to achieve law’s essential function—if it fails to minimally instantiate the relevant normative ideal.
Chapter 3 turns to versions of non-positivism, assessing the strengths and weaknesses of natural law theories, Dworkin’s “law as integrity,” one-system views (on which law is a subset of morality), and recent suggestions that law is a “dual-character” or an “aggregative-cluster” concept. Much of the chapter is devoted to Atiq’s affirmative proposal—which he dubs “non-positivism without the frills,” because it’s designed to address positivism’s explanatory deficiencies while taking on minimal extra baggage. That proposal leans heavily on the previously mentioned idea that law is a goodness-fixing kind.
According to Atiq, a legal system’s essential function is to instantiate a normative ideal associated with the rule of law. A scheme of social organization that radically fails to instantiate that normative ideal cannot be a legal system. Thus, the existence of any legal system depends on the satisfaction of a normative criterion (and that alone, for Atiq, gets us to non-positivism). Derivatively, the existence of any legal norm depends on the norm belonging to a scheme of social organization that minimally instantiates a normative ideal, and so likewise depends on the satisfaction of a normative criterion. Legal norms are all partly grounded in this normative fact.
Atiq further proposes that the concept of law is an aggregative-cluster concept, whose criteria of application include both non-normative and normative properties: “[U]sers of legal language rely on both social criteria, such as the rule’s similarity to one derivable from a socially embraced rule of recognition, as well as normative criteria, such as the rule’s contribution to law’s normative aspirations” (P. 67). How to aggregate those criteria is indeterminate—leaving plenty of room for competent users of the concept to disagree over its application. “Conceptual competence follows from an understanding of easy and prototypical cases of law, where the social and normative properties of rules more or less point in the same direction” (id.).
Unlike Atiq, I have strongly positivist intuitions and have defended positivism in prior work. I need to think more about Atiq’s non-frilly non-positivism, but I find much of the theory plausible and am surprised by how little it threatens core positivist intuitions. I’d prefer to draw a sharper distinction between non-positivism about law, in the sense of legal systems, from non-positivism about law, in the sense of individual legal norms. With respect to legal systems, I’m unsure whether legal systems essentially aim at a normative ideal, but I agree with Atiq that, if they do, then their existence likely depends on minimally realizing that ideal—on a normative fact.
It would follow that the existence of any individual legal norm is also grounded in a normative fact (namely, the fact that the norm belongs to a system that minimally realizes a normative ideal). On the currently popular grounding-based definition of the positivism/non-positivism divide, that alone would suffice to prove non-positivism. I’m not sure, however, that positivists should be troubled by that conclusion, since it doesn’t seem to threaten core positivist intuitions. To use a stock example, that conclusion, by itself, would not preclude individual norms created by manifestly unjust legislation, like the Fugitive Slave Act, from being legally valid.
One lesson that I’m tempted to draw is that the grounding-based definition of the positivism/non-positivism divide fails to track our actual disagreements (a point that others have made as well). We might instead define positivism as holding that any norm’s legality depends on its source, not its merit. On that definition, Atiq’s theory is still non-positivist because it makes legality turn on an often-indeterminate aggregation of non-normative and normative properties. Yet, even that conclusion may not trouble some positivists, since Atiq seems to suggest that a norm’s lack of merit would only render the norm indeterminately legal, as opposed to determinately not legal.
In any event, the plausibility of Atiq’s theory invites a rapprochement, or at least further reflection on where our real disagreements lie. There is, of course, much more nuance to Atiq’s arguments than I can convey in this Jot. I encourage you to read the book: for those who haven’t followed the literature on non-positivism lately, the book is a clear and accessible refresher; and for those who have been following, the book itself is an important and thought-provoking contribution.
