Legal Dualism, Legal Ethics, and Fidelity to Law

Transcription

1 1 Legal Dualism, Legal Ethics, and Fidelity to Law Synopsis Joshua P. Davis* This Article argues that there is an important relationship between the nature of law and legal ethics. A crucial claim in support of this thesis is that the nature of law varies with the purpose for which it is being interpreted. In particular, the Article contends that natural law provides the best account of the nature of law when an interpreter seeks moral guidance from the law, and legal positivism provides the best account when an interpreter seeks instead to describe the law or to predict how others will interpret it. This philosophical position it labels legal dualism. Legal dualism has a significant implication for legal ethics: to the extent the law serves as a source of moral guidance for interpreters, they must act as natural lawyers. The Article tests legal dualism and its corollary for legal ethics against Bradley Wendel s justly lauded book, LAWYERS AND FIDEL- ITY TO LAW. Wendel pairs legal positivism and the moral legitimacy of law, commitments that legal dualism suggests are incompatible. The Article argues that, while Wendel makes many important contributions, his argument is not fully successful to the extent it conflicts with legal dualism. It concludes that he and others should acknowledge and address the need for ethical attorneys to act as natural lawyers. That means lawyers sometimes must make moral judgments in saying what the law is. Introduction A jurisprudential issue underlies any ethical obligation attorneys may have to follow the law. Such an obligation would presumably constrain what lawyers can do on behalf of their clients. After all, the ethical rules and plausible ethical * Associate Dean for Academic Affairs, Professor, and Director, Center for Law and Ethics, University of San Francisco School of Law. I am grateful for valuable comments from Steve Bundy, Geoff Hazard, Morris Ratner, Bill Simon, Manuel Vargas, and Brad Wendel, participants in the International Legal Ethics Conference VI in London, England, participants in the Bay Area Legal Ethics Forum, participants in the faculty workshop at the University of Kansas, and participants in the International Legal Ethics Conference VII in New York City. I am particularly appreciative of the valuable discussion this article has generated with Brad Wendel. The draft has benefited greatly from his comments. All errors of course remain my own.

2 2 JOURNAL OF THE PROFESSIONAL LAWYER theory prohibit lawyers, for example, from assisting clients in violating the law 1 and from making frivolous arguments in court. 2 If the content of the law were uncontroversial, so might be this constraint on attorney conduct. But what if interpreting the law involves moral judgments? Attorneys may not always be able to say what the law is without considering what it should be. That, at least, is a crude expression of what has come to be known as natural law or non-positivism. 3 What if natural lawyers are right? What if saying what the law is at least sometimes requires resolution of some moral issues? Should lawyers then make moral judgments in deciding what legal services they may provide to clients so as to avoid assisting a violation of the law or in determining what legal positions they may take so as not to make frivolous arguments? Should they refuse to assist a client or to make an argument on a client s behalf based in part on their views of morality? In other words, should attorneys impose their morality on their clients? To do so could seem immodest. Who are lawyers, one might ask, to play judge in their clients cases, at least where doing so requires resolution of contestable moral issues? This Article explores these issues. In particular, it analyzes the significance for legal ethics of a novel claim about the nature of law. The claim can aptly be called legal dualism. It holds that law can best be understood in two relevant ways: sometimes as consistent with natural law when an interpreter seeks moral guidance from the law and other times as consistent with legal positivism when an interpreter seeks merely to describe the law or to predict how others will interpret it. In other words, interpreters should be natural lawyers when they seek moral guidance from the law and legal positivists when they do not; the nature of law varies with the purpose for which it is being interpreted See, e.g., MODEL RULES OF PROF L CONDUCT Preamble (2016) ( A lawyer s conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer s business and personal affairs. A lawyer should use the law s procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer s duty, when necessary, to challenge the rectitude of official action, it is also a lawyer s duty to uphold legal process. ); MODEL RULES OF PROF L CONDUCT R. 8.4 (2016). 2. See, e.g., MODEL RULES OF PROF L CONDUCT R. 3.1 (2016); FED. R.CIV. P SCOTT J. SHAPIRO, LEGALITY 27 (2011). 4. In a sense, this argument accepts Brian Bix s invitation to focus on the ways in which different jurisprudential theories address different questions rather than the ways in which they provide different answers. BRIAN BIX, JURISPRUDENCE: THEORY AND CONTEXT 3 (6th 2012). Note that legal dualism is not meant to preclude the possibility that alternative understandings of the nature of law may prove useful when interpretation serves some other purpose. Legal dualism may thus be a special application of legal pluralism. That issue is beyond the scope of this Article.

3 LEGAL DUALISM, LEGAL ETHICS, AND FIDELITY TO LAW 3 Legal dualism has implications for legal ethics. It suggests that a lawyer who has a moral obligation to take the law into account in deciding what she should do cannot always avoid making moral judgments in determining what the law is. The same is true of other actors, including judges and ordinary citizens. For interpreters on whom law exerts a moral influence, what the law should be informs efforts to describe the law. Bradley Wendel s book, LAWYERS AND FIDELITY TO LAW, 5 provides a useful test of legal dualism as applied to legal ethics. His analysis warrants attention in part because his treatment of legal theory is unusually sophisticated and explicit for a work by a legal ethicist. He dedicates significant portions of the book to jurisprudence and brings to that task a great depth and breadth of knowledge. 6 Of particular importance for present purposes, Wendel stakes out a position that conflicts with legal dualism. In relevant part, Wendel argues that lawyers have a moral obligation to serve as partisans for the legal rights of their clients (rather than their interests) 7 and that in determining those rights lawyers the content of the law ultimately depends on social facts, not on moral judgment. 8 Most pertinent, this position entails that legal rights impose moral obligations 9 and that legal positivism provides the best understanding of the nature of those legal rights. 10 In other words, he would marry law as a source of moral guidance with legal positivism. Legal dualism rejects that pairing. If dualism is correct, natural law correlates to ascribing moral force to the law and legal positivism to describing the law or predicting how it will be interpreted. One cannot mix and match in the way that Wendel attempts. So which must give way, legal dualism or Wendel s position? This Article argues that Wendel does not manage to reconcile moral obligations with legal positivism. And the reason Wendel does not succeed is predicted by the justifications for dualism: he has not provided a viable alternative to morality as a way to make law sufficiently determinate to provide guidance. These conclusions, it further contends, support legal dualism as a theory. 5. BRADLEY WENDEL, LAWYERS AND FIDELITY TO LAW (2010). 6. See, e.g., id. at Another excellent and jurisprudentially sophisticated account of legal ethics is TIM DARE, THE COUNSEL OF ROGUES: A DEFENCE OF THE STANDARD CONCEPTION OF THE LAWYER S ROLE (2009). 7. Id. at Id. at 140, n. 62 ( Different flavors of legal positivism exist, but in all cases the essential positivist claim is that the legal validity of a norm is a matter of locating it with the sources specified by the rule of recognition. The rule of recognition specifies binding criteria for legal officials to use in deciding whether a given norm is a rule that is part of the legal system. ) (citing H.LA. HART, THE CONCEPT OF LAW 94-95, 100 (2d ed. 1994)). 9. Id. at 122 ( If the arguments up to this point are sound, then the fundamental obligation of the lawyer s role is fidelity to the law itself. ). 10. See, e.g., id. at 140 & n. 62 (appearing to endorse inclusive legal positivism).

4 4 JOURNAL OF THE PROFESSIONAL LAWYER But that does not mean Wendel s argument fails. All that dualism requires of Wendel is that he cede one or more of his commitments. He could give up his claim that law imposes moral obligations and the aspects of his argument that seem inconsistent with legal positivism. That, however, would be a drastic step to take. Much of his analysis would fall by the wayside. Alternatively, Wendel could abandon legal positivism in favor of legal dualism. This Article suggests that strategy. It would allow Wendel to retain most of his analysis as he has formulated it. He could still pursue what appears to be a core contention that attorneys should aggressively pursue the legal rights (as opposed to the mere interests) of their clients 11 as well as the argument based in political morality that he makes in support of that contention. 12 Embracing legal dualism, however, would require him to address a crucial difficulty: lawyers at times must exercise moral judgment in deciding what they may do on behalf of their clients. Wendel does not address this difficulty. 13 This Article concludes that his apparent reason for not doing so the positivist view that lawyers need not make value judgments in saying what the law is is unpersuasive. So Wendel should confront the challenge of lawyers imposing their moral beliefs on their clients. And so should we all, scholars, judges, and attorneys alike. Otherwise, some of the most important and controversial judgments made by lawyers and other legal interpreters will evade scrutiny. Moral judgments will lurk behind decisions, denied in theory though they occur in fact. The resulting lack of transparency will obscure the nature of legal interpretation, making it more difficult for us to hold legal interpreters accountable for the contestable moral judgments they make. 14 Part I defines legal positivism, natural law, and legal dualism. Part II then offers a summary of the argument for legal dualism, explaining how it accommodates key criticisms of legal positivism and natural law by suggesting that each provides the best account of the nature of law within its proper domain. Part III applies the argument for legal dualism to legal ethics. It notes that lawyers at times merely describe the law often characterizing it in a way favorable to their clients and at other times likely have an obligation to look to the law for moral guidance. It also suggests that the standard conception of the law- 11. Id. at Id. 13. Id. at Ironically, this opacity about the interplay of morality and law is in part what historically motivated legal positivists. Legal positivists wanted clarity about what the law is precisely so that it could be subjected, as appropriate, to criticism. See, e.g., Joshua P. Davis, Legality, Morality, Duality, 2014 UTAH L. REV. 55, ; H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 HARV. L. REV. 593, (1958) (arguing the great legal positivists John Austin and Jeremy Bentham insisted on the distinction between what the law is and what it ought to be in part to allow for effective criticism of unjust laws).

5 LEGAL DUALISM, LEGAL ETHICS, AND FIDELITY TO LAW 5 yerly role under which lawyers are morally free to act as partisan advocates on behalf of their clients 15 seems to imply that the law exerts a moral force. In other words, there would appear to be an element of reciprocity lawyers cannot rely on the moral force of the law to liberate them to act within the adversarial system without recognizing that the law also makes moral demands on them. Assuming law does have some moral force, Part III explores when lawyers should operate as legal positivists and when they should act as natural lawyers. Part IV tests the above analysis against Bradley Wendel s book, LAWYERS AND FIDELITY TO LAW. Wendel argues both for legal positivism and for the law imposing moral obligations including what Wendel calls the obligation of fidelity to law. 16 Legal dualism holds that those two positions cannot be reconciled. Legal positivism correlates to a purely descriptive or predictive approach to law. When law gives rise to moral obligations when it requires fidelity interpreters must be natural lawyers. So Wendel s book provides a healthy challenge to legal dualism. Part IV argues that Wendel s argument succumbs to the challenge. Legal dualism emerges intact. Wendel, it concludes, must adjust his theory ideally by abandoning legal positivism for interpreters seeking moral guidance from the law. Part V concludes by exploring an additional issue Wendel would have to address were he to accept legal dualism and to defend his modified version of the Standard Conception. He would have to justify lawyers at times making moral judgments in interpreting the law for their clients. That task, it suggests, is the natural result of his argument that lawyers should pursue their clients legal rights, not their interests. I. Defining Legal Positivism and Natural Law Legal dualism presupposes a distinction between natural law and legal positivism, one that depends on the role of morality in legal interpretation. Clarity requires precision in defining these terms. Unfortunately, there is no readily available consensus. 17 Legal positivism derives its name from the notion that law consists of positive norms, that is, norms created by human action. 18 Along these lines, one common approach is to define legal positivism by the Social Facts Thesis and natural law by opposition to that thesis WENDEL, supra note 5, at See, e.g., id. at 122 and the title of his book. 17. See generally Jules Coleman, The Architecture of Jurisprudence, 121 YALE L.J. 2 (2011) (discussing difficulty of defining legal positivism). 18. See, e.g., INTERNET ENCYCLOPEDIA OF PHILOSOPHY, (last visited June 1, 2016). 19. See, e.g., Kenneth Einar Himma, Inclusive Legal Positivism, in THE OXFORD HANDBOOK OF JURISPRUDENCE &PHILOSOPHY OF LAW 126 ( The most fundamental of positivism s core commitments is the Social Facts Thesis, which asserts that law is, in essence, a social creation or artefact. ).

6 6 JOURNAL OF THE PROFESSIONAL LAWYER The Social Facts Thesis holds that all legal facts are ultimately determined by social facts alone. 20 Specifying social facts 21 involves only description, not prescription saying what the law is, not what it should be. 22 According to legal positivism, a purely descriptive claim plays the ultimate role in saying what the law is. The words ultimately and ultimate in this context can be taken to mean foundational or fundamental. 23 In other words, the foundation for giving content to the law is descriptive, not prescriptive. And no prescriptive claims are necessary to support that foundation. 24 Theorists often contrast legal positivism with natural law. 25 According to the Social Facts Thesis, natural law claims that the content of the law ultimately de- 20. SHAPIRO, supra note 3, at 27 & n.27 (citing JULES L. COLEMAN, THE PRACTICE OF PRINCIPLE 75 (2001)); JOSEPH RAZ, THE AUTHORITY OF LAW: ESSAYS ON LAW AND MORALITY 37 (1979); Gerald J. Postema, Coordination and Convention at the Foundation of Law, 11J. LEGAL STUD. 165 (1982)). Shapiro calls this proposition the Ultimacy Thesis. Id. at However, although it may be more precise, I find this label less accessible than the Social Facts Thesis, and it is less commonly used. See William A. Edmundson, Shmegality, 2JURISPRUDENCE 273, 273 (2011) (noting the Social Fact Thesis is the standard term). Similarly, Brian Leiter uses the term Social Thesis, BRIAN LEITER, NATURALIZING JURISPRUDENCE: ESSAYS ON AMERICAN LEGAL REALISM AND NATURALISM IN LEGAL PHILOS- OPHY 66 (2007). Wendel appears to adopt the Social Facts Thesis as a definition of legal positivism, at least implicitly: The incorporation of morality into law may be a social fact, in the sense that one can trace the validity of a proposition of law back to its having been relied upon by an official institutional actor, such as a judge or a legislator, as one of the grounds for a legal judgment. If moral truth is irrelevant to legal validity (with validity understood in terms of social sources), then it is irrelevant whether a lawyer believes some interpretation of law would be better, morally speaking. WENDEL, supra note 5, at Shapiro usefully characterizes the relevant social facts as depending on what people think, intend, claim, say, or do. SHAPIRO, supra note 3, at 27. Further, although he acknowledges controversy about the nature of the relevant social facts, he suggests a plausible understanding of the relevant social facts along the following lines: the fact that legal officials treat the state conventions as having had the power to ratify the Constitution makes it the case that the Constitution is legally binding on them. Id. The most important points for present purposes is that legal positivists claim that legal facts ultimately depend on only social facts and that specifying social facts involves only descriptive claims, not moral claims. 22. See id. 23. Leiter, for example, uses the term fundamental at times in defining what I have called the Social Facts Thesis. See, e.g., LEITER, supra note 20, at 66, Some legal positivists hedge in this regard. Shapiro, for example, attempts to remain agnostic about the nature of social facts themselves and whether they are reducible to other factual claims (e.g., about individual psychology and action) or require recourse to moral facts as well. SHA- PIRO, supra note 3, at 44. It is not clear that this concession is merely marginal, but I will not pursue the point in this Article. 25. Id. at 27. The term natural law is awkward at least as applied to modern theorists, including Lon Fuller and Ronald Dworkin to the extent it could be read to imply some kind of religious commitment. See, e.g., BRIAN H. BIX, JURISPRUDENCE: THEORY AND CONTEXT 67 & n.2

7 LEGAL DUALISM, LEGAL ETHICS, AND FIDELITY TO LAW 7 pends at least in part on moral facts, 26 not just on social facts. 27 So, for example, constitutional law is a kind of natural law if the proper way to interpret the Constitution depends ultimately in part on political morality. 28 If, on the other hand, the right way to specify the content of constitutional doctrine ultimately involves recourse only to social facts if the content depends, say, only on prevailing practice then legal positivism provides the best understanding of the nature of constitutional law. 29 Legal positivism, in turn, can take two forms. It can be exclusive or inclusive. 30 Both embrace the Social Facts Thesis. 31 Inclusive legal positivism, however, allows morality to play a role in identifying the content of the law, provided the relevant social facts so permit. 32 Exclusive legal positivism, in contrast, claims that morality plays no role whatsoever in specifying the content of the law. 33 All legal positivists agree that which political actors make authoritative pronouncements regarding the content of the law depends ultimately only on social facts on the conventional practice, for example, in a particular legal system. However, inclusive legal positivists believe those social facts may permit some political actors, including judges, to make non-foundational moral judgments in determining the content of the law, whereas exclusive legal positivists do not. 34 Imagine, for instance, that the relevant social fact again, say prevailing legal practice allows judges to make moral judgments in specifying the content of constitutional doctrine in the United States. As long as the content of the law (5th ed. 2009); Ronald A. Dworkin, Natural Law Revisited, 34 U. FLA. L. REV. 165, 165 (1982). However, I follow other scholars in using the term. 26. I use the term moral facts to be consistent with others. See, e.g.,shapiro, supra note 3, at 27. To say the content of the law depends on moral facts, for my purposes, means merely that moral judgment is necessary to identify the content of the law, not that moral judgment is or can be objectively correct or that moral facts can be identified in a particular way. I do not mean to take a position here about the ontological or epistemological status of morality. For an argument defending the objectivity of moral facts and more generally robust moral realism see DAVID ENOCH,TAKING MORAL- ITY SERIOUSLY (2011); RUSS SHAFER-LANDAU, MORAL REALISM: A DEFENCE (2003). 27. SHAPIRO, supra note 3, at Id. at 29. I recognize it is a contested issue whether political morality is a branch of morality. But either way, the statement in the text holds true if the content of the law ultimately depends in part on political morality, it does not depend ultimately only on social facts. 29. Id. 30. See id. at Id. at Two of the most prominent inclusive legal positivists are H.L.A. Hart and Jules Coleman. See, e.g., H.L.A. HART, THE CONCEPT OF LAW (3d ed. 2012); JULES COLEMAN, THE PRACTICE OF PRIN- CIPLE: IN DEFENCE OF A PRAGMATIST APPROACH TO LEGAL THEORY (2001). 33. To use Shapiro s terminology, all legal positivists are committed to the Ultimacy Thesis, that is, that legal facts are ultimately determined by social facts alone. SHAPIRO, supra note 3, at 269. Exclusive legal positivists also adhere to the Exclusivity Thesis, that is, that legal facts are determined exclusively by social facts. Id. at 269, See id. at

8 8 JOURNAL OF THE PROFESSIONAL LAWYER depends ultimately on only social facts, inclusive legal positivism can account for our legal system. Exclusive legal positivists, however, insist that the content of constitutional law does not depend on moral facts at all. They believe that the content of the law depends on only social facts. 35 Natural law rejects the Social Facts Thesis. It contends that the content of the law does not depend on only social facts. Note the asymmetry. Legal positivism claims that the content of the law depends ultimately on only social facts. But natural law does not entail that the law depends ultimately on only moral facts just that it depends in part on moral facts. A more aggressive natural law position might claim that the content of the law depends ultimately or even entirely on only moral facts. Natural law, in this limited sense, is more modest than legal positivism. 36 There is an alternative way to define legal positivism worth mentioning, one at odds with the Social Facts Thesis. It holds that the law may reflect moral (or normative) judgments at its foundation but only at its foundation. Those moral (or normative) judgments lead to the conclusion that morality (or some other form of normativity) should play no further role in determining the content of the law. Jeremy Waldron has dubbed this approach normative or ethical positivism. 37 It is, in a sense, the inverse of inclusive legal positivism as defined above. Normative positivism allows normative (or moral) values to inform only foundational judgments in defining the law; inclusive legal positivism excludes normative (or moral) values only from those foundational judgments. The goal of this Article is not to choose among these competing approaches to legal positivism. For purposes of clarity, it will generally assume that the Social Facts Thesis defines positivism. And when it addresses normative positivism it will use that term. But note at the outset that one definition of legal positivism appears untenable. It does not seem possible to combine inclusive legal positivism with normative positivism. After all, inclusive legal positivism allows only non-foundational 35. Exclusive legal positivists may have various reasons for reaching this conclusion. Joseph Raz, for example, believes that the authoritative nature of the law requires that it provide exclusionary reasons for complying with its dictates, that is, reasons that preclude a legal interpreter s reconsideration of the normative issues that were resolved in devising the content of the law. See LEITER, supra note 20, at 129 (discussing Raz s authoritative directives). Others rely on an argument about public guidance that the law must be knowable without value judgments for it to provide guidance to the public. See, e.g., SHAPIRO, supra note 3, at 302; WENDEL, supra note 5, at 116 ( The claim in this chapter is that law can perform its function as a distinctive mode of governance precisely because of its independence from contested moral considerations. ). 36. If there were symmetry, the view that the content of law depends ultimately in part on social facts and in part on moral facts would fit neither within legal positivism nor within natural law. According to the above definitions, however, such a hybrid view qualifies as natural law. Also, if there were symmetry, one might use the term exclusive natural law for the position that only moral facts give content to the law and the term inclusive natural law for the position that the content of the law depends ultimately only on moral facts, but may depend on interstitial social facts. 37. See Jeremy Waldron, Normative (or Ethical) Positivism, in HART S POSTSCRIPT: ESSAYS ON THE POSTSCRIPT TO THE CONCEPT OF LAW 411 (2001).

9 LEGAL DUALISM, LEGAL ETHICS, AND FIDELITY TO LAW 9 normative (or moral) judgments and normative positivism allows only foundational normative (or moral) judgments. Combining the two would seem to permit all normative (or moral) judgments. Little or nothing would then be left to distinguish legal positivism from natural law. 38 So we should reject what one might call inclusive normative legal positivism. With these points in mind, it is possible to offer a more precise account of legal dualism. Recall that legal dualism claims that natural law provides the best account of the nature of law when an interpreter seeks moral guidance from the law and legal positivism provides the best account when an interpreter seeks merely to describe the law or to predict how others will interpret it. What does that mean? If we adopt the Social Facts Thesis: it means that when an interpreter seeks moral guidance from the law, she will have to make ultimate or foundational moral judgments in saying what the law is; in contrast, when she attempts merely to describe the law or to predict how others will interpret it, she can rely ultimately on only social facts. With these definitions in place, we are ready to consider the case for legal dualism. II. A Précis of the Case for Legal Dualism This Article is not the place to develop the full argument for legal dualism. 39 A brief overview of its main points, however, provides a basis for evaluating its implications for legal ethics. That overview begins with crucial challenges for legal positivism and natural law: respectively, Hume s Law 40 and Evil Law. 41 A. Hume s Law and Legal Positivism Hume s Law poses a challenge for legal positivism. It holds that one cannot derive an ought from an is. 42 In other words, descriptive propositions cannot yield prescriptive propositions. 43 For present purposes, Hume s Law bars us from deriving moral obligations from descriptive or predictive claims about the law. Some normative (or moral) proposition must establish the normative (or moral) significance of any descriptive claim. 38. The concern is not idle that the distinction between natural law and legal positivism may dissolve, leaving confusion over what is at stake. Ronald Dworkin, for example, has criticized Jules Coleman s inclusive legal positivism of too closely resembling Dworkin s non-positivist theory. RONALD DWORKIN, JUSTICE IN ROBES (2006) (discussing Pickwickian Positivism ). 39. For an initial effort to undertake that task in response to Scott Shapiro s excellent book, LEGALITY (2011), see Davis, supra note 14. For a similar initial effort in response to Brian Leiter s reworking of Legal Realism in naturalistic terms see Manuel Vargas & Joshua P. Davis, American Legal Realism and Practical Guidance, in REASONS AND INTENTIONS IN LAW AND PRACTICAL AGENCY 267 (2015). 40. DAVID HUME, A TREATISE ON HUMAN NATURE, bk. 3, pt. I, sec. I ( ). 41. A germinal development of this argument can be found in Hart, supra note 14, at See, e.g., RONALD DWORKIN, JUSTICE FOR HEDGEHOGS 17 (2011) (referring to Hume s principle rather than Hume s Law). 43. Id. SHAPIRO, supra note 3, at 47.

10 10 JOURNAL OF THE PROFESSIONAL LAWYER So, for example, one might say that Jim killed Bob. That descriptive claim, by itself, does not establish any moral proposition. Some additional prescriptive claim would be necessary to conclude that Jim acted immorally. One would need to know that killing is immoral or that it is immoral under some circumstances. That moral proposition would then determine which other descriptive claims are relevant to a moral conclusion, such as whether Jim killed Bob deliberately or whether he acted in self-defense. Legal positivists have recognized the challenge that Hume s Law poses for them. Scott Shapiro, for example, accepts Hume s Law. 44 He also acknowledges that the law includes propositions about what those subject to it should do. 45 He suggests, however, that whether the law in fact imposes moral obligations rather than merely purports to do so is an independent moral question, one that does not require consideration of morality in saying what the law is. 46 According to Shapiro, one can determine the entire massive and elaborate structure of the law without any inquiry into morality. That structure may be framed in terms of obligations. But one should separately assess whether the structure or any part of it in fact imposes moral obligations to act or not to act in a particular manner. Shapiro s approach could succeed in theory. One could imagine interpreters disentangling descriptive claims about the content of the law from moral claims about the content of the law, and then separately asking whether the law has any moral (or normative) force. Shapiro s solution, however, gives rise to serious difficulties in practice. A primary source of difficulties is pervasive indeterminacy in the law, at least in complex legal systems like the one in the United States. 47 That indeterminacy occurs at a foundational level in answering foundational questions about what the ultimate sources of law are and how they should be interpreted as well as in making non-foundational call them interstitial judgments, such as how to address apparent gaps or inconsistencies in the law. Legal indeterminacy triggers Hume s Law. When the law is susceptible to more than one interpretation, how ought an interpreter to choose among them? i. Foundational Indeterminacy The issue of foundational indeterminacy can take the form of the problem of theoretical disagreements, a label that Shapiro applies to an argument made by 44. SHAPIRO, supra note 3, at 48-49, 188. Jules Coleman has identified the challenge of Hume s Law as well. See Jules Coleman, supra note 17, at (2011). 45. SHAPIRO, supra note 3, at Id. at Legal positivists generally acknowledge the indeterminacy of the law. See, e.g., HART, supra note 32, at ; SHAPIRO, supra note 3, at 256; WENDEL, supra note 5, at It is unclear whether they would argue that the law is sufficiently determinate to support legal positivism. Wendel does seem to suggest the law yields determinate answers with some frequency, but see infra Part IV.B.i for an argument that Wendel s own examples of legal interpretation require moral judgments to produce determinate results.

11 LEGAL DUALISM, LEGAL ETHICS, AND FIDELITY TO LAW 11 Ronald Dworkin. 48 Theoretical disagreements arise when legal interpreters have different views about which social facts are relevant to legal interpretation. 49 Consider the issue of whether the death penalty constitutes cruel and unusual punishment as proscribed by the Eighth Amendment. 50 Legal interpreters within our legal system may disagree on this issue at various levels of generality, inter alia, about the relevant views of the Framers or of the citizenry at the time of adoption of the Bill of Rights, about whether the death penalty is cruel and unusual under a contemporary understanding of those terms, about whether the original understanding or the modern understanding should govern constitutional interpretation, and about the grounds for choosing between those and other potential interpretive methodologies. Some of these disagreements may turn merely on social facts for example, what the views of the founders were 51 but others arise over which social facts matter to legal interpretation. Indeed, theoretical disagreements about the nature of the law contribute to foundational indeterminacy. That is because the controversy that permeates any effort to identify the content of the law includes legal theory itself. Exclusive legal positivists, for example, often view recourse to social facts alone as the best and only proper means of addressing metainterpretive questions questions about the proper method of interpretation. 52 Natural lawyers, in contrast, may claim there is no alternative but to base legal interpretation in part on morality. 53 This disagreement runs to the extremes of generality. Scott Shapiro s ultimate philosophical methodology, for example, appears to eschew moral judgment. 54 Ronald Dworkin, in contrast, claims legal interpretation is a branch of political morality and, ultimately, a branch of morality. 55 A reasonably determinate description of the law would depend on some resolution if only implicit of these foundational disputes. How should an interpreter resolve them? The question 48. SHAPIRO, supra note 3, at Dworkin makes the argument, inter alia, in RONALD DWORKIN, LAW S EMPIRE 45 (1986). 49. See SHAPIRO, supra note 3, at Id. at But note that this issue gives rise to various others. Which founders? How should we aggregate their views? Should we consider the concepts they adopted in abstract terms (as they often were expressed when codified) or as they thought they would be applied? See RONALD DWORKIN, A MATTER OF PRINCIPLE (1985) ( The Forum of Principle ). 52. See, e.g., SHAPIRO, supra note 3, at 345. Raz is a possible exception his approach seems to be that theory need not inform legal practice, a questionable position. See Joshua P. Davis, Jurisprudential Jujutsu, at 7 n. 30 (2012), available at abstract_id= Wendel does not assert this argument. 53. See, e.g., DWORKIN, supra note 42, at Shapiro questions whether morality can inform our understanding of the nature of law. SHAPIRO, supra note 3, at See, e.g., DWORKIN, supra note 42, at 405.

12 12 JOURNAL OF THE PROFESSIONAL LAWYER is normative. Given that the law is a political institution, answering the question would seem to require judgments about political morality. 56 The debate between Justice Scalia and Ronald Dworkin is instructive in this regard. Justice Scalia was the most renowned recent sitting judge to champion legal positivism. Yet his ultimate justification for his criticism of what he calls the Living Constitution 57 his criticism of interpreting the Constitution as changing over time with society s values 58 sounded in political morality. He argued, for example, that the Bill of Rights should protect unpopular minorities, 59 that licensing judges to base their views of constitutional rights on morality has injected politics into the process for selecting judges, 60 and that the Living Constitution leads to a degradation of genuinely unpopular minority rights... notably, rights of criminal defendants and prisoners. 61 Dworkin responded in two key ways to Scalia: first, arguing that a moral reading of the Constitution will enhance not undermine the most important individual rights; 62 and, second, observing that Justice Scalia relied an argument about political morality about the best understanding of democracy and the best way to protect individual rights within a democracy to support his position. 63 In reply, Scalia addressed the first point squarely, predicting that, as a result of our embrace of a Living Constitution, for individual rights disfavored by the majority... there are hard times ahead. 64 However, he did not contest indeed, 56. See, e.g., id. at ; Scott Hershovitz, The End of Jurisprudence, 124 YALE L.J (2015) (arguing legal obligations are a subset of moral obligations); Mark Greenberg, The Moral Impact Theory of Law, 123 YALE L.J (2014) (same). Support for this suggestion comes from an interesting place, the renowned legal positivist, H.L.A. Hart. He wrote about interpretation when the law is unclear: What is it then that makes such decisions correct or at least better than alternative decisions? Again, it seems true to say that the criterion which makes a decision sound in such cases is some concept of what law ought to be; it is easy to slide from that into saying that it must be a moral judgment about what the law ought to be. Hart, supra note 14, at 608. Hart resists this conclusion primarily by arguing that the aims of the law can be evil. Id. at 613; see also id. at 601, 613. His response may well succeed if one assumes law has the same nature for all purposes. But if one relaxes that assumption and limits the analysis to when the law has moral legitimacy, Hart s response no longer appears persuasive. Morally legitimate law would seem to serve moral purposes and recourse to those purposes would be expected to implicate moral judgments, as Hart seemed to recognize. 57. ANTONIN SCALIA, AMATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 44 (1997) [hereinafter A MATTER OF INTERPRETATION ]. 58. Id. at 40, Id. at Id. at 46-47, Id. at 149 (emphasis in original). 62. See Dworkin, Comment, in AMATTER OF INTERPRETATION, supra note 57, at Id. at Id. at 149.

13 LEGAL DUALISM, LEGAL ETHICS, AND FIDELITY TO LAW 13 his rejoinder seemed to concede that the debate ultimately turns in part on a judgment about political morality. 65 Justice Scalia thus abandoned the Social Fact Thesis. Judgments about political morality informed his view of the content of the law, even if those judgments operate only at the level of foundational theory. 66 To be sure, he preferred to make his moral judgments as a predicate to his interpretive theory and not otherwise. But his view was premised on moral judgments nonetheless. So if Scalia qualified as a positivist, he would appear to have been a normative positivist. 67 As confirmation, consider a major issue recently addressed by the Supreme Court: same-sex marriage. 68 The Court held in Obergefell v. Hodges that there is a right to marry that extends to same-sex couples. 69 Justice Scalia made clear the nature of his objection to the majority s ruling: [I]t is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact and the furthest extension one can even imagine of the Court s claimed power to create liberties that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves. 70 Justice Scalia s opinion continues by explaining albeit in abbreviated form why the Supreme Court serves as a poor representative of the people when the Justices act on their policy views as opposed to their skills as lawyers. 71 Others can and do disagree. An example is Christopher Eisgruber s trenchant argument that members of the Supreme Court promote democratic selfgovernment at times by making judgments about moral principles Id. 66. I mean to take no position here on whether Justice Scalia in fact makes interstitial moral judgments in interpreting the law. 67. Note that this characterization of Scalia s judicial philosophy, if accurate, could spell trouble for some positivists. Shapiro, for example, seems sympathetic to Scalia s meta-interpretive theory, see, e.g., SHAPIRO, supra note 3, at , one that the text argues is not in fact consistent with positivism as defined in this Article and by Shapiro. See supra notes and accompanying text. 68. Obergefell v. Hodges, 576 U.S., 135 S. Ct (2015). 69. Id. 70. Id. at 2627 ( Justice Scalia, dissenting). 71. Id. at CHRISTOPHER EISGRUBER, CONSTITUTIONAL SELF-GOVERNMENT (2001). See also JEFFREY ROSEN, THE MOST DEMOCRATIC BRANCH: HOW THE COURTS SERVE AMERICA (2006) (arguing courts

14 14 JOURNAL OF THE PROFESSIONAL LAWYER But what matters for present purposes is not whether Justice Scalia or Professor Eisgruber is more persuasive. The key point is that their disagreement turns on judgments about political morality including about the extent to which democracy can be equated with majoritarianism as expressed of elected officials. In other words, they disagree about foundational issues of political morality essential to determining the content of the law. And they agree, at least implicitly, that interpreters must take into account political morality in resolving those foundational issues. Scalia s attack on the majority in Obergefell sounds in political theory. ii. Interstitial Indeterminacy But foundational moral judgments are unlikely to be sufficient by themselves to yield the degree of determinacy necessary for the law to serve as a source of moral guidance. There are pervasive points of disagreement in legal interpretation, many of which occur at lower levels of generality. These are instances of interstitial indeterminacy that is, locations of ambiguity, inconsistency, or opacity within any descriptive or predictive account of the law. 73 Even if interpreters agree on foundational issues such as what the ultimate sources of law are and how they should be interpreted they will sometimes disagree about more concrete matters, such as which of several apparently inconsistent legal rules apply in a case and, if more than one does, which one should govern. Modern legal positivists tend to acknowledge even to assert that such indeterminacy exists. 74 In resolving these issues, it would be natural for judges to take into account an amalgam of value judgments, policy considerations, predicted consequences, ascribed purposes of the law, and the like. 75 at times are more responsive to popular will than elected branches of government). Arguments along these lines often focus on two points: the Supreme Court is more reflective of popular will than many assume (elected representatives appoint and confirm justices and justices are responsive to the views of citizens, particularly about underlying moral and political principles) and other branches of government are less reflective of popular will than many assume (those holding elected office are in many ways not responsive to citizens). They also often make arguments about the meaning of democracy as reflecting deep commitments to moral values other than just majority rule. See, e.g., RONALD DWORKIN, FREEDOM S LAW 1-35 (1996). 73. Any indeterminacy should be susceptible to categorization as either interstitial or foundational. Little depends for the present argument on whether these categories are distinct or overlapping, although that might matter in deciding whether inclusive legal positivism or normative positivism can provide an adequate account of the law. Inclusive legal positivism can tolerate the use of moral judgment to eliminate interstitial indeterminacy but not foundational indeterminacy; the converse is true for normative positivism. 74. See HART, supra note 32, at ; id. at ( Postscript ) (noting and expanding on the sources of indeterminacy in the law); SHAPIRO, supra note 3, at 256; WENDEL, supra note 5, at How much indeterminacy there is and how to frame claims about degrees of indeterminacy are matters of some dispute. See WENDEL, supra note 5, at See also infra Part IV.B and accompanying text disputing whether the law is as determinate as Wendel claims it sometimes is. 75. BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 9-13, (1921) (noting the numerous influences on legal interpretation).

15 LEGAL DUALISM, LEGAL ETHICS, AND FIDELITY TO LAW 15 In turn, these concrete issues ineluctably implicate more general ones, for political morality will inform arguments both about whether moral judgments should be used to resolve indeterminacy in the law and about when moral judgments should play that role. Should judges tolerate relatively unjust or counterintuitive results so as to minimize the discretion they may yield? That question is difficult to answer without taking recourse to more general or abstract moral judgments. Legal interpreters disagree on these points. There is no purely descriptive analysis no non-normative fact-of-the-matter that can resolve them. In this regard, consider another recent Supreme Court decision, King v. Burwell. 76 At issue was the availability of tax subsidies under the Affordable Care Act. The Act confers tax subsidies on taxpayers who enroll in an insurance plan through an Exchange established by the State. 77 The parties disagreed about whether an Exchange is established by the State if a State uses an exchange created by the federal government. 78 One way to understand the justices different views on this issue is as turning on relatively narrow judgments of fact, e.g., whether the key phrase in the statute is ambiguous and whether it is at odds with the purposes of the statute. 79 But those views also seem to mix fact and value, such as about how ambiguous the text of a statute needs to be and how at odds with the statute s purposes for a court to put aside the most natural sense 80 of the text and to rely instead on the context and structure of the statute. 81 As Justice Scalia s dissent makes clear, those issues in turn depend on judgments about political morality, including how much power the courts do and should have to clarify or correct a law that may have been drafted with insufficient care and deliberation. 82 Justice Scalia may well be right when he pronounces, It is up to Congress to design its laws with care, and it is up to the people to hold them to account if they fail to carry out that responsibility. 83 If he is, however, he is not self-evidently right. Perhaps courts should play an active role in assisting legislatures to achieve the ends they intend. 84 Or perhaps, as Justice Scalia contends, courts should exercise restraint, forcing legislatures to take care 76. King v. Burwell, 135 S. Ct (2015). 77. Id. at Id. 79. Compare id. at 2491 (holding the statute is ambiguous) and (holding that denying state use of a federal exchange is an exchange established by the state would be antithetical to the purpose of the statute), with id. at 2497 (Scalia, J., dissenting) (arguing the statute is unambiguous), and id. at (arguing the structure of the statute is consistent with concluding a federal exchange is not an exchange established by the state). 80. Id. at 2490 (Scalia, J., dissenting). 81. Id.; id. at 2497 (Scalia, J., dissenting). 82. Id. at 2495; id. at 2497 (Scalia, J., dissenting). 83. Id. at 2506 (Scalia, J., dissenting). 84. See, e.g., William Eskridge, Dynamic Statutory Interpretation, 135 U. PENN.L.REV (1987).

16 16 JOURNAL OF THE PROFESSIONAL LAWYER or live with the consequences. In either case, Justice Scalia s argument relies in part, again, on equating majoritarianism with democracy and, again, that is a contestable position that depends on judgments about political morality. 85 Hume s Law, then, poses a problem for legal positivism when a legal interpreter seeks moral guidance from the law. Foundational and interstitial moral judgments may be necessary to render the law sufficiently determinate to guide conduct. And those moral judgments, according to Hume s Law, must derive from an ought, not an is. A comparable issue confronts natural law. B. Evil Law and Natural Law Just as Hume s Law poses a problem for legal positivism, Evil Law poses one for natural law. 86 Natural lawyers claim that determining the content of the law at times requires recourse to moral facts. 87 But it is hard to see what role moral facts could play in an evil legal system, one that serves nefarious ends. Consider the law of Nazi Germany. 88 What role could morality play in a legal system that is so morally bankrupt? Yet Nazi law appears to qualify as law. 89 Many consider this critique the most formidable one of natural law. Note in this regard Thomas Nagel s summary in the New York Review of Books of the life work of his longtime colleague and renowned natural lawyer, Ronald Dworkin. 90 Nagel s largely sympathetic account of Dworkin s view included a note of skepticism about the position he ascribed to Dworkin that morality always informs what the law is: If one thinks of the American legal system before the Civil War, with its constitutionally protected compromises over slavery, it seems strained to understand the truth about what the law was as part of morality what was morally required or permitted in light of the morally best overall justification of the existing institutions, laws, and precedents. Looking at it from our external perspective, a positivist reading 85. See supra Part II.A.i. 86. SHAPIRO, supra note 3, at This is arguably Hart s central and most persuasive point in Hart, supra note 14, at Shapiro treats this point as definitional of natural lawyers. Id. at 27. He attributes the natural law position, so defined, to Ronald Dworkin, among others. Id. at 27 n.28. He does note an alternative natural law position holding merely that immoral or unreasonable laws are defective as laws. Id. (citing Mark C. Murphy, Natural Law Jurisprudence, 9 LEGAL THEORY 241, 254 (2003)). 88. Lon L. Fuller and H.L.A. Hart address the puzzle of Nazi law in their famous debate. See Lon L. Fuller, Positivism and Fidelity to Law A Reply to Professor Hart, 71 HARV. L. REV. 630, 633 (1958); Hart, supra note 14, at Additionally, Shapiro offers the law of the Soviet Union as an example. SHAPIRO, supra note 3, at Hart, supra note 14, at Although Dworkin did not generally embrace the label natural lawyer, he seemed to acknowledge that he qualified as one given the standard terms used in jurisprudence. See Ronald Dworkin, Natural Law Revisited, 34 FL. L. REV. 165, 165 (1982) ( If the crude description of natural law I just gave is correct, that any theory which makes the content of law sometimes depend on the correct answer to some moral question is a natural law theory, then I am guilty of natural law. ).