Positivism and the Separation of Morality

The “law functions as a scheme of interpretation”1 and it is that system or set of rules that order the manner in which we view the world. Richard Weaver speaks of rational society as the “mirror of the logos”, with the preservation of society being “directly linked with the recovery of true knowledge.”2 He offers the view that the highest forms of knowledge or the truth, can only be derived from that which is universal or permanent, therefore the moral foundation of truth must determine the philosophy of being. However, due to the hierarchy in society, the objectivity of such definitions of truth and law grounded in moral aspects has essentially produced what Eugene Genovese identifies as the hegemonic aspect of the law, wherein jurisprudence in the era of slavery was conditioned by the morality of the ruling class and to further their aims3. Dworkin highlights the moral dimension to the law when he states: “According to the law as integrity, propositions of law are true if they figure in or follow from the principles of justice, fairness and procedural due process that provide the best constructive interpretation of the community’s legal practice.”4 The moral aspects were important in the system of natural law, wherein the law symbolized man’s participation – as a rational creature- in eternal law5. Natural law was fashioned by the utilitarian perspective – adopting a generalized jurisprudence and a universal system of ethics and a conception of what is good in any society. According to Fuller, the framing of the law cannot be isolated from morality, because in achieving its objective of ensuring order, the law must also demonstrate respect for individual autonomy and rights, based upon moral principles of what is good.6 Jeremy Bentham, in trying to explain the concept of law, advocated utility as the “sole and sovereign arbitress of all disputes.”