On Lawful Governments

Abstract

What is the meaning of sentences of the form 'X is the lawful government of the country Y,' and what kinds of statements are normally -made by using them? Most answers these questions can be classified as legalistic, moralistic, or compromise solutions. The gist of the legalistic approach is that the lawful government is that authorized by the positive law of the land. Critics of the legalistic approach point out that disagreement about the lawful government is not always solved when agreement is reached about the positive law of the land. For example, two people may disagree as whether the Colonels' Government is the lawful government of Greece, while being in complete agreement that the post-coup law is the positive law of Greece. From this fact, which indeed should be admitted and explained by any theory on the subject, the moralists conclude that the lawfulness of a government is a matter of morality and not of law. It is determined by moral rules, by personal commitments, etc. Those who favor a compromise solution claim that in certain contexts sentences about lawful governments are used make legal statements, while in other contexts they are used make moral statements or express moral positions or attitudes. In this paper I will first criticize one moralistic solution, that presented by R. M. Hare, and one compromise solution, the one put forward by J. G. Murphy, and then proceed formulate and defend a variant of a legalistic position. Professor Hare' accuses previous writers on the topic of committing the sin of descriptivism. All of them assumed that to explain the meaning of any predicate is give the criteria or conditions which have be satisfied by a subject before this predicate is correctly predicated of it (p. 158). He divides his predecessors into two camps, those who favor non-empirical criteria of lawfulness (e.g., natural law theories, hereditary theories) and those who defend empirical criteria (e.g., might-isright theories, popular sovereignty theories). Non-empirical criteria are rejected because they are too indeterminate and slippery be of any value in settling concrete disputes about the lawfulness of certain governments. Empirical criteria are rejected because they entail a statement of the form 'The lawful government is the government F' (where F is an empirical predicate), which is an analytic statement. For example, some statement like 'The lawful government is the effective government or the government which enjoys popular support' is analytic according these theories. According Hare, however, no statement of the form 'X is the lawful government but is not F' is a contradiction, although some such statements are, perhaps, false. Hare proceeds (pp. 163-64) examine an ascriptive theory which he imputes H. L. A. Hart.2 According this theory, legal sentences are often used make inverted commas state-