Law and Morality: Positivism vs. Constitutionalism
The Challenge to Positivism: Law and Morality
Constitutionalism challenges the positivist separation of law and morality with these arguments:
- Application for Correction
- Plot of Injustice
- Practical Jurist
- Special Case Thesis
Application for Correction
This considers rules in terms of their functionality in practical reasoning.
Robert Alexy’s Theory: A judge contradicts themselves by condemning someone to a penalty while not considering it justified.
A claim for correction asserts what we believe is the correct decision. We presume a decision is correct or justified, even if we think otherwise.
Hart says: We cannot ignore the ability of officials who have accepted the target system.
Reasoning of Injustice
The concept of law, as managed by the participant and acceptor of the system, is not morally neutral; it includes moral elements. An extremely unfair regulatory system is not a legal order.
Every human activity has a purpose that defines it, as with the law.
An arbitrary rule with no intention of ordering society with some justice cannot be classified as legal.
Practical Lawyer
This is a dynamic vision of the law. The law is seen as a dynamic reality, not just a set of rules but a complex social practice, including procedures, rules, players, and institutions. A dynamic concept is linked to a practical jurist (R. Dworkin).
Claiming the Critical Observer
Luis Prieto defends positivism in constitutionalism.
They refer to four theses, views, and criticisms that do not fit outside the law and that the lawyer must follow the proper purposes of the law.
According to the authors, criticism would not fit unless one takes a different view. We can say that there is reason to continue talking about the right point of view of the critical observer. This says that the constitution is committed to a political and moral justification and should be taken outside the law itself, i.e., whether the principles and constitutional values are morally correct, not because they are in the Constitution but by external moral criteria to the right; otherwise, we would incur ideological positivism (law being such must be obeyed).
The moral value of the Constitution need not be the legitimate scope of the whole legal system rules on legislators and judges from an outside view.
The Internal Point of View Has Two Risks:
- To say what is moral and turn this into law.
- A second risk is the irresponsibility of the Judge and increasing judicial activism.
R. Dworkin believes that law has only one solution to a single case; the judge may do so for moral principles. This author maintains that there is not much discretion of the judge.
Prieto argues that maintaining the judge’s discretion by moral principles is very pluralistic. He argues that there is no single solution. Positivism can rule acts through the veil of discretion. Prieto says that positivism has the advantage that it requires the court to argue.