Legal systems presuppose morality
Legal systems presuppose an obligation of obedience (Payne, 1976, 288). The concept of a legal system that does not require obedience is incoherent and, therefore, to be rejected. One of the purposes of law is to regulate human society. This regulation aspires to make humans act in a predictable manner, avoiding proscribed behaviour and actively performing certain tasks where the context so requires.
A distinction must be observed between this purpose and particular laws and acts. While particular laws may be ill-conceived and humans may fail to keep the law at all times, neither of these occurrences entails that the concept of a legal system, designed to regulate human behaviour, is incoherent. Failure to meet an ideal does not entail that such an ideal has no meaning or is ultimately unobtainable. Nor does human failure mean that humans ought not to pursue an ideal. Such pursuit can be justified by reference to other values such as character formation, the reduction of evil, the furtherance of good, and enlightenment.
The purpose of regulating human behaviour must serve some ultimate goal or be otherwise linked to a moral framework. The proposition, “It is good to regulate human behaviour”, is a moral proposition. If this proposition is true, then morality and law are not separable, since law would exist in this schema to serve a moral purpose, the furtherance of good.
If one suspends the question of whether it is good to regulate human behaviour, one must still ask what such a purpose serves. It is insufficient to posit that humans regulate their behaviour without reference to some purpose or desire. Human behaviour, as von Mises argued, is transactional in nature (von Mises, 1949, passim). Humans choose to give up a possession or possibility (time, money, opportunity, etc) in exchange for another. This transaction occurs because the object sought is more valuable to the agent than the object surrendered at the time of the transaction. The creation of a legal system, freely chosen, is a species of transaction. Similarly, humans choose generally not to rebel against a legal system as a whole, because they hold that some good is obtained by leaving the legal system in place.
The object achieved by this transaction is social order, the avoidance of anarchy. Order is desirable because it means stability, peace, and an easiness of life not found in chaos (Hobbes, 1651, Part II). However, this transactional and contractarian analysis of law is insufficient to show that law presupposes morality. Thus far, it has been shown that law is pursued or permitted by agents because it achieves some object they value. This object must be linked to morality itself.
Insofar as law is perceived as a device to maximise happiness (Kelly, 1990, passim), a standard and framework are assumed. When reasoning that more happiness is better than less happiness – whether for oneself only or for others – one is appealing to the concept of goodness or excellence. This is more than simple preference or pleasure. The transactional nature of the human mind is such that one must make reference to some standard in order to make a choice at all. To prefer pleasure over pain is to judge that pleasure is better than pain.
Legal systems, therefore, presuppose a choice of the better over the worse. This is fundamentally a moral proposition, capable of being expressed as, “One ought to choose what is better.” Since legal systems presuppose the maximisation of happiness, and this is pursued because it is good to do so, morality is an integral part of legal systems.
Legal positivism is contradictory. Law cannot be law without serving a moral purpose. Part of the internal morality of law is to maximise happiness. If law were merely a set of commands, as articulated by Austin (Austin, 1832, passim), there would be no reason to issue or obey a command. Commands relate to acts and omissions and are given to serve a purpose. The combination of action and purpose in the context of social relations renders law a matter of moral reasoning by necessity.