Law, Morality, and the One-System View: A Response to T. R. S. Allan

Abstract

Abstract: This is a response to a recent article by T. R. S. Allan. Allan makes several insightful observations about law and legal practice. As Allan correctly notes, (i) the moral evaluation of legal rules and institutions is carried out within legal practice and its traditions, and therefore the view that we can come up with practice-independent moral principles to evaluate the law is at least dubious; (ii) legislative enactments require judicial interpretation to determine their meaning and their incorporation within a democratic legal system; and (iii) law fulfils its functions, and allows for impartial resolution of disputes, by establishing public standards of justice that displace private judgments about political morality. In this reply, I suggest that—in contrast to what non-positivists like Allan would argue—each of these observations is either compatible with, or reinforces, a positivist view of law and legal institutions. Arguably, non-positivist views still have an advantage over positivism: they seem to fit easily with most citizens’ and officials’ judgments about legal obligation. However, positivism can offer an equally direct explanation of those judgments.