Legal positivism is an enduring, though much maligned, school of legal thought. One of the defining features of the legal positivist understanding of law is the insistence on the separation of law and morality. In other words, state or private action may be legal, and yet immoral, and vice versa, depending on the extent to which it is based on legal rules recognized as valid within the particular legal system in question. The positivist insistence on the separation of law and morality remains controversial. While the bill of particulars against legal positivism is lengthy, one of the most persistent criticisms is that it has a deficient understanding of the relation of theory and practice in law. During the Weimar Republic in Germany, for example, critics claimed that legal positivists’ focus on formal legality rendered the democratic system defenseless against attempts to undermine the democratic system through formal legal means. More recently, critics charge that legal positivism misunderstands the essential role of moral considerations in adjudication.¹

In what follows, I argue that legal positivism actually has a more nuanced understanding of the relation of theory and practice than commonly acknowledged. After outlining essential components of the positivist understanding of legal validity (I), I shift attention to an unlikely representative of the positivist understanding of law, Abraham Lincoln (II). Lincoln is not generally considered a legal theorist, let alone a legal positivist. But like positivists, Lincoln distinguishes between law and morality. More importantly, Lincoln’s constitutional thought and actions as president show how the positivist insistence on the separation of law and morality enhances, rather than diminishes, the long-term viability of constitutional democracy.

It is misleading to speak of legal positivism in the singular. The term refers to a wide range of thinkers in a number of historical and national contexts.² One point of agreement among legal positivists, however, is the insistence on the separation of law and morality. This is not to say that legal positivists deny that morality can have a role in legal affairs. Rather, the issue for legal positivists is whether the legal system recognizes morality as a source of legally binding rules.

Germany provides an interesting illustration. A central tenet of the German legal tradition is the subordination of judges to written law. In contrast to their American counterparts, in other words, German courts were traditionally not permitted to base decisions on general principles of law and morality, even when there is a so-called gap in the law. At the same time, though, the famous German Civil Code contains general clauses, such as the "good faith" (Treu und Glauben) clause. While these provisions render the Code adaptable to changing circumstances through judicial interpretation, they also open the door to the incorporation of contentious moral judgments into legal practice. During the Weimar Republic, for example, German judges interpreted such clauses in a way that restricted the democratically-elected legislature, while in the Nazi era judges used them to advance National Socialist social goals.³ Despite this history, the framers of the Basic Law included a number of "guiding principles" (Leitprinzipien), which are not subject to amendment according to Article 79(3)GG.⁴ Their aim, in the words of Konrad Hesse, was to establish a democratic system that is "neutral regarding worldview," not "values."⁵ Such a system, in other words, would permit considerable democratic experimentation, while it precludes non-democratic alternatives.

I will leave aside the complicated question of whether the Federal Republic’s constitutional system is a positivist one. I merely seek to illustrate that from a positivist perspective there is nothing per se illegitimate in courts making recourse to such principles, when they have a basis in positive law. This suggests that one can consider legal positivism a procedural, rather than substantive, understanding of law, if one understands procedural in very broad terms. Legal rules are valid, if they originate in the manner recognized in the particular jurisdiction. But this stress on procedure does not exclude substantive limitations on state action.⁶ While leading positivists stress the need to formulate these substantive limitations clearly enough to minimize official discretion in their application,⁷ typically state officials must develop subsidiary norms to give effect to the more general substantive limitations. Disagreement over the content and application of these subsidiary norms is unavoidable.⁸ The important thing from a positivist perspective, I contend, is that the system provide a normative and institutional framework for the working out of contestable compromises on the applicability of these guiding principles in particular cases.

It is not surprising that the mid-19th Century United States does not figure prominently in discussions of legal positivism. Though interpretation of the United States Constitution was a central issue in political discourse, there was no academic legal theory in today’s terms. Also, the reigning debates about the Constitution had a distinctively moral cast,⁹ which is quite foreign to the work of contemporary legal positivists.

Lincoln’s constitutional thought and official actions reflected his times in both these senses.¹⁰ Nonetheless, one can consider Lincoln’s understanding of law positivist to the extent that he insisted on distinguishing among morality, constitutionality, and legality. We shall see, for example, that Lincoln considered slavery immoral, and yet he insisted that as president he would not free the slaves, for the constitutional system did not grant him the power to do so. It was only as a matter of military necessity that he felt justified in issuing the Emancipation Proclamation.

Lincoln’s view of the limited power of the President was no doubt motivated in part by party political considerations, particularly maintaining some support in Southern states. But it also reflected the reigning understanding of separation of powers. For much of the 19th Century, the Congress was the center of gravity of the political system. This was even the case during the Civil War, despite Lincoln’s dramatic exercise of executive power.¹¹

My primary aim, however, is not to discern Lincoln’s true motivations. It is only to show the potential efficacy of a positivist understanding of legal politics. And for this purpose, the fact that he elaborated his understanding of the role of law and morality in democratic government in reference to a major constitutional crisis, rather than in response to the concerns of legal theorists, makes Lincoln relevant to an inquiry into legal positivism’s practical import.

In the American political tradition, there is a glaring discrepancy between the proclamation of natural equality in the Declaration of Independence and the institution of slavery. Lincoln responds to this discrepancy by viewing American self-government as a project yet to be fully realized. The legitimacy of the regime, Lincoln argues, depends on the eventual abolishment of slavery and the practical realization of the principle of natural equality.¹²

For Lincoln, the developments of the 1850s were so disturbing, because the position of the African-American in American society was actually worsening rather than improving. Many state constitutions were amended, for example, to exclude even the consideration of emancipation, however limited. More famously, the Kansas-Nebraska Act and the Dred Scott decision sought to "settle" the slavery issue by removing it from consideration at the federal level. These developments ensured that the institution of slavery would not only never be eliminated where it then existed, but would probably also be expanded into the new territories. In Lincoln’s words:

Lincoln was alarmed that these developments reflected and reinforced a gradual transformation of the American self-understanding. The proponents of the expansion of slavery did not argue that the original programmatic understanding of the proclamation of natural equality was wrong or had become outdated. They argued, rather, that the Declaration’s principle of natural equality did not include African-Americans, even in prospective terms. In this debased form, in fact, the Declaration became a useful tool for the enslavement of all persons, of whatever race, in Lincoln’s opinion.¹⁴ It was this potential transformation of the American self-understanding that compelled Lincoln to act in the 1850s,¹⁵ because he believed that this reading of the American tradition, while false, could very well be made true:

Implicit in Lincoln’s reaction to the Kansas-Nebraska Act and the Dred Scott opinion is a theoretical understanding of the relation of principle and practice. Lincoln stressed the centrality of human action in the task of active preservation or cultivation of the tradition. For him, the meaning of an event such as the Founding is defined not just by how actors at the time viewed it. Rather, seminal events, for Lincoln, are also defined by how subsequent actors interpret these events and act in reference to them. In this way, Lincoln integrated political practice directly into the definition of principle, but he did so in a way which did not collapse principle and practice.

Maintaining a distinction between principle and practice is essential to the ongoing viability of constitutional government. As a particular interpretation of a principle is acted upon over time, it becomes increasingly difficult to dislodge it by an appeal to the original principle. Political practice can redefine a principle, such as that of natural equality, if a contrary political practice is allowed to coalesce. But appeals to the original principle, even though ineffective in the short-term, maintain a basis for opposing an evolving practice. These appeals to principle gradually lose force as the contrary practice takes shape and solidifies. Nonetheless, a principle such as that of natural equality in the Declaration of Independence always serves as a point of resistance to an unjust political practice.

It is important to stress that I am not offering a common reference point for political debate as a panacea for conflict-weary societies. Quite obviously, not all traditions have such a clear focal point. Typically, in fact, legal systems are composites of ad hoc normative and institutional compromises over rival understandings of political and social ordering. Moreover, even systems with such a focal point are not spared intense political conflict. Modern France, for example, is quite exceptional in the extent to which political discourse revolves around interpretations of the French Revolution. But France is not thereby spared political conflict, for both the Left and the Right in France claim to be the true heirs of the Revolution.¹⁷ My point, rather, concerns the structure of political discourse. Insisting on a distinction between law and morality helps maintain a framework for criticizing and perhaps even resisting state action. This is because there is always a normative ground outside the positive enactments of the state for criticizing these actions as immoral, though perhaps constitutional and legal.

It is fairly simple for a legal system to identify and respond to abuse of official discretion by minor officials. A contempt citation or removal from office is often sufficient to ensure compliance with legal dictates. However, it is much more complicated at high levels of authority, particularly when the official or institution in question has considerable democratic legitimacy. The coordinate branches of United States federal government, for example, are all subject to the Constitution. But several factors complicate greatly the task of ensuring conformity with constitutional norms. First, these governmental actors themselves are also responsible for interpreting the Constitution,¹⁸ and there is ample reason for disagreement about what the Constitution requires. Like any compromise document, the Constitution contains norms that are in tension with one another and does not establish a clear hierarchy among these norms. Moreover, there might be significant short-term political gain in pursuing a legally or constitutionally suspect course of action. This is an important consideration for political officials, for whom Keynes’ dictum "in the long-run you’re dead" applies with special urgency.

At this level, therefore, it is better to speak of persuasion rather than compulsion. The role of the legal system in such conflicts is to "raise the stakes" of official abuse of power. In other words, when other officials call attention to questionable state action, they put pressure on state actors to justify their actions in terms appropriate for their place within the overall system. The official response might offer an alternate interpretation of existing law, or one might justify a legal violation as necessary to attain some higher end. In any case, the justification must persuade other officials and the general public. For whereas even autocratic states require some voluntary cooperation of the public to ensure the long-term viability of the regime, the need for public support in a democracy is especially acute.

An essential element in the persuasiveness of such official explanations is the extent to which the form of argument offered is considered appropriate for the official’s position and circumstances of the case. Typically, for example, it would be considered illegitimate for an administrator to ignore or violate the guidelines established by the enabling legislation for her agency, merely because she believed these guidelines were immoral or because, in her opinion, another scheme would better serve the general welfare. It is often quite different, however, for high elected officials. The legislature might take such concerns into account in formulating or revising the enabling legislation, and the President might use executive orders to institute policy she believes advances the public good.

An excellent example of the importance of linking forms of argument with institutions is the controversy surrounding Lincoln’s suspension of habeas corpus during the Civil War. "The privilege of the writ of habeas corpus shall not be suspended," according to Article I, Section 9 of the U.S. Constitution, "unless when in cases of rebellion or invasion the public safety may require it." Sitting at the time as a Circuit Court judge, Chief Justice Taney was right to question Lincoln’s unilateral suspension of habeas corpus. For the constitutional provision in question accords Congress, not the President, the authority to suspend the right of habeas corpus.¹⁹ But Congress was not in session. And since the President is also charged with upholding the Constitution, Lincoln argued, it was necessary for him to violate this particular constitutional norm, in order to preserve the entire constitutional system.²⁰

It is not necessary here to answer whether Lincoln’s actions were justifiable despite their unconstitutionality in the narrow sense.²¹ The important point is that a dynamic tension between institutions preserves normative and institutional means for criticizing and restraining the exercise of these powers. More specifically, the Supreme Court response placed the onus of responsibility on Lincoln’s shoulders. It forced him to account for his actions with arguments that were appropriate for his place within the system and for the particular circumstances in question. Even though the questioning of official conduct did not compel Lincoln to forgo presidential emergency powers, it helped ensure that the system of valid laws is respected in the long-term by limiting the potential usefulness of Lincoln’s actions as a precedent.²²

Like leading legal positivists, Lincoln’s understanding of law distinguishes between the validity and the morality of laws. By doing so, H.L.A. Hart argues, one does not deny the importance of morality. Quite the contrary, doing so makes clear what is really at stake in debates about immoral laws. A wider view of law, according to Hart, "enables us to see the complexity and variety of (the) separate issues; whereas a narrow concept of law which denies legal validity to iniquitous rules may blind us to them."²³ Most importantly for my purposes, separating the question of the legality of a law from that of its morality maintains a basis for criticism of immoral laws. In Hart’s words:

Despite the important differences in their respective understandings of the character of morality "outside" legality, Lincoln, Kelsen, and Hart all agreed that distinguishing between morality and legality was essential to preventing the potentially disastrous conflation of law and morality. Of course, a wide view of law cannot alone "prevent" the official abuse of power. However, by providing a normative basis for the criticism of the official abuse of power, it can make such actions less likely and help curb them once abuses have occurred. As Kelsen pointed out, democratic theory cannot save democracy; only democrats can. But providing democrats with the appropriate tools, such as a wide view of law, can aid them immeasurably in their task.