The Necessary Moral Foundation of Law: A Gewirthian Critique of Contemporary Inclusive Positivism

Abstract

How does law possess the normative force it requires to direct our actions? This seemingly innocuous question is of central importance to the philosophy of law and, by extension, of the very concept of law itself, and it is hoped that this thesis will make a contribution which can further our capacity to provide a satisfactory answer.

The argument put forward will be one coming from the Natural Law tradition, in that it claims that the normative force of law has a necessary connection to morality. In order to be successful in this enterprise, two things will need to be demonstrated. Firstly, a commitment to the concept of moral truths is required; secondly, these moral truths must be identifiable through human reason. It will be argued that these conditions are met by Alan Gewirth’s Principle of Generic Consistency, which attempts to locate the existence of universally applicable moral norms through a dialectically necessary argument grounded in the truism of noumenal agency. Such an argument, if correct, will demonstrate that a universalised instrumental reason necessarily serves as a categorical imperative to bind all agents to adhere to its absolute and exclusionary requirements against behaviour that would be non-compliant.

This has implications for legal theory, in that positive law is a product of human, and therefore agential, activity. If the PGC applies to all agential behaviour, a circumstance might arise in which a rule claiming the status of law might contradict its requirements. This thesis argues that, in such circumstances, the PGC requires agents to deny the normative force claimed by the non-compliant rule, thus demonstrating that (RM x, - Φ) > (RL x, Φ). Contemporary positivist theories will then be critiqued against this claim to establish the extent to which they overcome the necessary link between law and morality thus established.