Law is a distinct form of political order. But order is not for order's sake. Order is a means to an end. Nobody, except those with OCD, would desire order as an end. But 'order for order's sake' is what is argued by legal positivists. H. L. A. Hart, J. Raz, H. Kelsen and those of the tradition of analytical jurisprudence claim that law is nothing but a social instrument to regulate human behaviour. The question that is left unanswered here would be 'why should we regulate human behaviour?' I hereby postulate that legal positivism provides a deficient, if not dangerous, view on the nature of law.
It is deficient in the sense that it fails to see law as moral enterprise. Positivism has been highly effective in discerning the function of the law, but not its purpose. The purpose of a particular instrument cannot be detached from its function. It would be silly, for example, to understand the functions of a car, how the pistons and brake system works and forget about the purpose of the car; which is to be able to ferry people around to places. Similarly, the order that the law provides for society, is for a certain telos or purpose; towards what Aristotle calls as human flourishing.
Law cannot be detached from the goal of human flourishing, all its norms and regulations should be directed towards this goal. If a law departs from this goal (eg. permitting the mass murder of its citizens), then that particular law has departed from what John Finnis refers to as the focal or central meaning of the term law. An unjust law is not law in the truest sense of the word.
One may argue that such a view of law would only be tenable if the criteria for human flourishing is objective. And since moral relativism is slowly taken root in society both in a de jure and de facto sense. The view of law as a moral enterprise would not be a practical option.
Let us consider this further. If we reject the notion that there are moral truths, then this rejection does not correspond with empirical data. If moral values are nothing but social preferences, then we would not argue about it. For example, we would not argue with one who insists that vanilla ice cream is better that chocolate, the reason being that it is a matter of preference. But we would argue about a particular action (eg abortion, euthanasia) as unjust or immoral. Such an argument would only make sense if there is an objective standard to appeal to. Such an appeal to external moral demands would refute the notion of moral relativism which interpret moral values as preferences rather than objective standards.
The argument above may indicate that there is an objective standard of morality, but this would not solve the issue that there is much controversy over what is the content of this objective standard. I would have to concede that there is difficulty over ascertaining moral truths purely through reason. This perhaps is due to the fact that man's reason is confined to certain boundaries, to his mental faculties and observational senses. However, this does not mean that one should abandon the search of objective moral standards.
Controversy should not deter us from seeking the truth, in fact, such controversies should serve as a form of motivation instead; that one should desire more to transcend moral uncertainty. I see no such desire in legal positivism, I see only intellectual laziness, a refusal to pursue the truth to the end.
Legal positivism cannot depart from the idea that it is force or coercion that legitimizes the law. Legal positivism may try to justify that the systemic validity of laws lie not in coercion but in, for example, a social norm or custom; it cannot depart too far from the notion of might is right, or might is law, for there is no conceptual link between law and morality. Since there is no such conceptual link, this would substantially weaken the ability of one to appeal to standards of morality against an unjust government. This would also absolutize the state, in the sense that its legal norms ought to be obeyed regardless of whether or not it has failed to abide to the standards of justice. This indeed is self-evidently dangerous.
Only when we view the law as a moral enterprise would we be driven to ascertain first, objective moral principles, and then, its practical implications. Only by cultivating such a view through the education of future politicians, judicial officials and lawyers would the state understand that its role is limited, and is always at the service of human flourishing.
