ISSN 1062-7421
Vol. 10 No. 1 (January 2000) pp. 9-12.

IN DEFENSE OF LEGAL POSITIVISM: LAW WITHOUT THE TRIMMINGS by Matthew H. Kramer. Oxford: Oxford University Press, 1999. viii + 313 pp. Cloth $75.00. ISBN 0-19-826819-X.

Reviewed by John von Heyking, Department of Political Science, University of Calgary

In Book Four of the CITY OF GOD, Augustine relates a conversation, recorded in Cicero's DE RES PUBLICA, between Alexander the Great and a pirate he had seized. Augustine writes: "'When the king asked him what he meant by infesting the sea, the pirate defiantly replied: The same as you do when you infest the whole world; but because I do it with a little ship I am called a robber, and because you do it with a great fleet, you are an emperor'" (Augustine 1998: 4.4). In his IN DEFENSE OF LEGAL POSITIVISM, Matthew H. Kramer provides an exhaustive defense of legal positivism against those who attribute a necessary relationship between law and morality. For Kramer, such theorists overlook the way in which a regime of rogues, concerned only for their self-interest, can achieve the characteristics of a legal system. He argues that there is no necessary relationship between law and morality, and that the relationship between the two is only contingent. His is not relativist argument, according to which regimes are seen to be morally equivalent, because he readily admits that there are better and worse
regimes. Rather, his argument is a useful counterweight to the predominance of liberal moralizing and American parochialism that plagues contemporary legal theorizing. According to the former, the laws not the law unless it conforms to liberal democratic societies; according to the latter, a particular liberal law will necessarily take an American form. To cite a distinction Kramer uses throughout the book, "the Law" is liberal; "the law" is American. Kramer attempts to shift the focus of legal theorists toward a more comparative and less moralizing direction. He succeeds only in part because in attempting to separate law from morality, he fails to establish the important difference between a legal system of a political society, and the rules of conduct for gangsters. In short, he fails to establish the
difference between Alexander and the pirate. Without morality, "the Law" and, indeed, "the law" dissolve.

Legal theorists are in a punchy mood these days. For example, Oxford University Press recently published a similarly titled book by Robert P. George, IN DEFENCE OF NATURAL LAW (1999). In perpetuating this mood, the present volume is divided into two parts. The first part consists in a series of responses to recent critiques of positivism that attempt to wed law and morality. Each chapter responds to criticisms against legal positivism made by theorists such as David Lyons, Lon Fuller, Joseph Raz, Philip Soper, Neil MacCormick, Michael Detmold, and Ronald Dworkin.

Although Part One consists of responses to critiques, Part Two elaborates and extends Kramer s defense of legal positivism, while including lengthy responses Michael Moore, John Finnis, and Michael Perry. Chapter 7

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briefly summarizes several theses that are falsely attributed to legal positivism; Chapter 8 elaborates central concepts that the author touches upon in earlier chapters: authority, obligation, normativity, and formal justice; and Chapter 9 elaborates on some implications of legal positivism, including, most important, Kramer's view that legal positivism does not make a moral claim for absolute obedience amongst citizens. In all of these chapters, Kramer strives to show that critiques of positivism
mischaracterize it as inordinately authoritarian (perhaps by having the Kelsenian command version of positivism in mind), and that, in wedding law and morality, its
critics reach perverse conclusions regarding moral action, such as having to obey Nazi rule as the result of seeing the obligation to obey the law as the primordial moral-essential attribute of law.

Kramer provides a useful service for legal theorists by reminding them of the role that self-interest and other non-"moral" motivations play in the behavior of officials. He elaborates throughout the work how careerism, adherence to an institution (instead of to the common good), hypocrisy, and fear work to maintain legal norms. One need only remind oneself of the recent scandal involving the American president and his intern, or Mikhail Gorbachev's act of crossing himself at his wife's funeral, to recognize that vice and hypocrisy can sustain a legal regime. Kramer thus performs a valuable reminder to his fellow legal theorists that the act of
maintaining the law by judges can be as self-interested and hypocritical as can the partisan business of legislation. One hopes that legal scholars have not become too pious (or self-interested, for that matter) to take up Kramer's challenge.

Despite the author's achievement in writing a defense of legal theory, this book will be less useful for political scientists and political philosophers, especially for those who disagree with the basic premises of legal positivism. Political scientists and philosophers will be disappointed in the neglect of political considerations, despite the author's attempt to emphasis of them. For example, his thesis that self-interested officials can apply the law without recourse to moral considerations presupposes that those officials work within a preestablished framework of norms, conventions, and vested interests that shield those officials from having to make moral inquiries. Thus, it is easily conceivable that a bureaucrat, whether one in the Justice Department or one such as Adolf Eichmann, would not have to make moral considerations when making a concrete decision. However, making such a presupposition merely begs the question of the origin and moral basis of such an institution. This book concentrates on the maintenance of the law, but lacks an account of its origin in the act of founding a regime. To notice that judges and bureaucrats in Nazi Germany acted out of self-interest is to ignore that Nazi ideology attempted to establish Germany as a racially pure thousand-year empire. Similarly, America, the land of liberalism, attempts to secure a "more perfect union," which, by the way, is based on Madison's masterful method of weaving together morality and ambition. Political foundations are necessarily evocations of order in which its participants actively engage their personalities. Even Hobbes and Locke regarded their notions of social contract in terms of the natural law. These considerations alert us that politics engages the entire human personality by necessarily blending self-interest and morality. Thus, a political and legal philosophy that divides self-interest (which Kramer calls prudence) and morality into two watertight

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departments, as Kramer does (see p. 64), will be insufficiently empirical.

Another, more damaging, way that this book is insufficiently empirical is in the author's failure to provide a robust definition of law as norm. For Kramer, legality is characterized by normativity, generality, regularity, durability, and comprehensiveness (chaps. 3 & 4). For a legal system to obtain, laws must be general, constant over time, and must have comprehensive reach into people's lives (p. 97). He admits that the rule of a group of gangsters over a population could achieve these conditions, although he asserts that this is unlikely because they are in competition with "legitimate" states whose laws they break. However, his assertion begs
the question as to whether the state in which such a group of gangsters could then itself constitute a legal system - a pressing problem in some countries such as Columbia, for example. The difficulty of basing the definition of a legal system on these characteristics is that they are relative, and can only be understood as part of a wider context of empirical materials. For instance, the author needs to clarify the degree of efficacy necessary for a legal system. He argues that very little efficacy is required for a legal system in which gangsters attain wide-ranging control, but on the very next page he expresses doubt whether gangsters could attain control.
Comprehensiveness too requires clarification. Gangsters such as the mafia, with its control over the ethical and religious dimensions of its member's lives, arguably have a more comprehensive legal system than a liberal democracy does.

Durability and regularity are also tricky because the enactment and removal of the "comprehensive array of norms that regulate the multifarious aspects of social and economic and political life" (p. 223) change the legal order, raising the problem of where to find the identity of the legal order. How can one speak of "the Law" or "the law" when both lack a unifying principle? How are we to speak of a single legal order when it is constantly changing by different acts of legislation and adjudication? In response to this, H. L. A. Hart refers to the "Rule of Recognition," which is the common sense conception of the goal of a society that is shared by those within it, and not expressible by those outside of it (Hart 1961: 99). Kramer, perhaps worried that Hart's view weds law with cultural norms, is vague when he
refrains from articulating the basis of the Rule of Recognition by observing only the existence, but not the content, of its "deeper layers" and the necessity of a limited range and intensity of divergences "as is necessary for the preservation of a large degree of regularity in the day-to-day administration of the law" (p. 145). In contrast to Hart, Kramer's characterization of the Rule of Recognition is circular and murky, and this causes problems for his thesis.

Indeed, if the legal order is identified as an aggregate of norms, every aggregate that differs from any other aggregate must be considered a different individual within the whole legal order. A change in the part will necessarily change the identity of the whole. A constitution might provide a legal order with identity because it provides a constant procedure in which to enact norms, similar to a spotlight moving along a series of aggregates; each element of the series is touched by that light for a moment, only to sink back into the darkness of invalidity. The difficulty with viewing law in terms of norms is that it has the unempirical result of dissolving "the
law" into nothingness. For example, Eric Voegelin (1991: 16-20) observes that positivism's characterization

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of the law is comparable to the structures of Zeno's paradoxes whereby, for example, a runner cannot reach his goal because he has to pass through an infinite number of points. Legal positivism, as Kramer describes it, is problematic because it regards "the Law" and "the law" as an aggregate of norms lasting over a dimension of time. It suffers the problems that Zeno discovered in his paradoxes because both attempt to describe the development or motion of a thing ("the Law" and "the law") by means of the infinity of static points (the "array of norms," e.g., judicial decisions, legislative enactments) on a line representing time (i.e., the law's durability), whereby the aggregate is imagined to be at rest on each single point. This characterization of law is problematic because the succession of legal norms will never become the continuum of "the law." This problem is acute for a legal theorist who simultaneously wants to speak about "the law" as both "comprehensive" and "without the trimmings." In order for "the law" to be "without the trimmings," it must not have a necessary relationship with morality that would give any particular norm its meaning. However, a law cannot be "comprehensive" if it is defined as an aggregate of norms. Kramer wants to have his cake and eat it too. However, he is left without something that can properly be called "the law," which is disturbing result for a theory that purports to be empirical. By concentrating his efforts on debunking moralizing accounts of law, the author has forgotten to provide a compelling positive account of "the Law" and "the law." He has overlooked the fact that moralizing accounts of law offer, albeit dimly, the only way of making sense of the identity of "the law" because the meaning of the law provides the only way to make sense of the identity of the law. Thus, the difficulty with this book is not that it is insufficiently moral but that it is insufficiently empirical.

REFERENCES:

Augustine. 1998. THE CITY OF GOD AGAINST THE PAGANS. Trans. R.W. Dyson. Cambridge: Cambridge University Press.

George, Robert P. 1999. IN DEFENSE OF NATURAL LAW. Oxford: Oxford University Press.

Hart, H.L.A. 1961. THE CONCEPT OF LAW. Oxford: Clarendon.

Voegelin, Eric. 1991. "THE NATURE OF LAW" AND RELATED LEGAL WRITINGS. COLLECTED WORKS. Vol. 27. Ed. Robert Anthony Pascal et al. Baton Rouge: Louisiana State University Press.

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