A Conceptual Framework

For the discussion of positivism, it is well to select a concept of law that includes the concept of validity. What can be avoided thereby is trivializing the problem by first ignoring the dimension of validity and defining the law as a class of norms, say. for external behaviour,^{[29] [30] in order to argue, then, that because it is possible to imagine the content of norms for external behaviour being anything whatsoever, there can be no conceptually necessary connection between law and morality. Incorporating into the concept of law the concept of validity means including in the concept of law the institutional context of lawmaking, law application, and law enforcement, a context that can be of significance on the question of a conceptually necessary connection between law and morality.}

(ii) Legal Systems as Systems of Norms and as

Systems of Procedures

The second distinction is between (he legal system as a system of norms and the legal system as a system of procedures.¹⁶ As a system of procedures, the legal system is a system of pro­cesses or actions based on and governed by rules, actions by means of which norms arc issued, justified, interpreted, applied, and enforced. As a system of norms, the legal system is a system of results or products of norm-creating proce­dures, whatever the origin or character of these procedures. One can say that to regard the legal system as a system of norms is to refer to its external side, whereas to regard it as a system of procedures is to refer to its internal side.

(iii) Observer’s and Participant's Perspectives

The third distinction is between the observer’s perspective and the participant’s perspective. This dichotomy is ambiguous, and the interpretation here is as follows. The participant's perspective is adopted by one who, within a legal system, participates in disputation about what is commanded, forbid­den, and permitted in this legal system and to what end this legal system confers power. At the centre of the participant's perspective stands the judge. When other participants—say, legal scholars, attorneys, or interested citizens—adduce argu­ments for or against certain contents of the legal system, they refer in the end to how a judge would have to decide if he wanted to decide correctly. The observer’s perspective is adopted by one who asks not what the correct decision is in a certain legal system, but, rather, how decisions are actually made in a certain legal system. An example of this kind of observer is Norbert Hoerster’s while American, who, wanting to travel with his African-American wife in South Africa, where apartheid laws prevailed at the time, reflected on legal particulars of his trip.⁴⁷

The distinction between the participant’s perspective and the observer’s perspective is related to H.

⁴⁷ Hoerster, VR 2481.

⁴* Hart, CL 86-7, 2nd cdn. 88-90.

" Sec Neil MacCormick, Legal Reasoning and Legal Theory (Oxford: Clarendon Press, 1978), at 275-92.

(iv) Classifying and Qualifying Connections

The fourth distinction refers to two different kinds of connec­tion between law and morality. I shall call the first ‘classify­ing’, the second ‘qualifying’. A classifying connection is reflected in the claim that norms or systems of norms that do not meet a certain moral criterion arc. for cither concep­tual or normative reasons, not legal norms or legal systems. A qualifying connection is reflected in the claim that norms or systems of norms that do not meet a certain moral criterion can indeed be legal norms or legal systems, but, for either conceptual or normative reasons, arc legally defective legal norms or legal systems. What is crucial is that the asserted defect is a legal defect and not simply a moral defect. Argu­ments addressed to qualifying connections are based on the assumption that necessarily legal ideals are contained within the reality of a legal system. Thus, instead of a ‘qualifying’ connection, one could also speak of an ‘ideal’ connection.

(v) Conceptually Necessary and Normatively

Necessary Connections

In addition to these four distinctions—between a concept of law that omits validity and one that embraces validity, between norm and procedure, between observer and partici­pant, and between classifying and qualifying connections there is the distinction, introduced above, between a conceptu­ally necessary and a normatively necessary connection.

(vi) Combinations

The framework makes it clear that very different meanings can be attached to the thesis that a necessary connection exists between law and morality. Within the framework, there are thirty-two possible combinations of the components of the five distinctions. For each combination, both the thesis that a necessary connection exists, as well as the thesis that a neces­sary connection does not exist, can be formulated. There emerge, then, sixty-four theses altogether. Now. among these, there arc certainly a number of implicative relations, which is to say that the truth or falsity of some of the theses implies the truth or falsity of others. And it may be that some combinations are conceptually impossible. That changes nothing, however, in the fundamental insight that a multitude of different claims are made in the debate about necessary connections between law and morality. One explanation for the inconclusiveness of this debate may be that the respective debaters often fail to recognize that the thesis (hey are defending is altogether different in kind from the thesis they are attacking, with the result that they are talking al cross purposes with one another. This explanation seems even more plausible when one considers that alongside the five distinctions in play here, further distinctions are imaginable, so (hat the number of possible theses could swell well beyond sixty-four.

In one respect, the large number of possible theses has already been reduced here, namely, in that our point of departure is a concept of law that includes the concept of validity. Simplifying things further is our emphasis on one distinction, the distinction between the observer’s perspective or external standpoint and the participant’s perspective or internal standpoint. Il is within the framework of this dichot­omy that the other distinctions come into play. The question, then, is whether the separation thesis or the connection thesis is correct from the observer’s perspective or from the partici­pant's perspective.

C.