There is an intuitive claim that a metaethical position of ethical objectivism goes hand in hand with legal non-positivism, i.e. a theory of law that makes legal validity dependent on morality. The general claim (let us call it the “Common-sense Argument” – from now on “CSA”) to be challenged goes as follows: If we posit the existence of objective moral values that are universally binding on all, there is pro tanto no reason to reject the dependence of legal validity on such moral values. A few fairly uncontroversial auxiliary premises can be added in its support, such as that morality precedes law (origins-wise) and that the function of law is to guide people’s behaviour in accordance with certain moral values.
Some preliminary remarks and conceptual clarifications
A preliminary remark: choosing between methodologies (descriptive vs. normative) is, in my opinion, a value-laden process. Each approach strives to achieve certain (different) goals, which are the basis for our choice. On top of that, the difference between the two approaches is, I believe, not so clear when it comes to conceptual analysis of normative phenomena that are artefacts, i.e. normative social creations (as I consider law to be). When it comes to legal philosophy, the two main traditions (positivism and non-positivism) mainly employ conceptual analysis, which is epistemically flawed in many ways, and follow (only to a certain extent) the footsteps of the two methodological paths. Here, I will postulate that there is value in having a non-positivistic and/or normative concept of law, with the awareness that there are no mandatory boundaries to the relationship between metaethics and legal philosophy. It is not my aim to conclude anything about their general relationship. I will only tackle the CSA which is based on the above assumptions that lead to viewing ethical objectivism as an additional argument in favour of having a non-positivistic account of law. Nothing needs to be derived from metaethics; it can only provide an incentive.
Furthermore, some conceptual classifications are necessary. There is a distinction between ethical realism, which assumes that moral properties are metaphysically independent of our beliefs or desires and that there are moral truths, and ethical anti-realism, which assumes that moral properties do not exist at all or that they are conceptually dependent precisely on our beliefs or desires. In turn, moral anti-realism has different layers and forms: among others, (1) non-cognitivism (there is no moral reality or moral knowledge, and moral claims are not statements); (2) error theory (moral claims are statements, which are always, perhaps even necessarily, false); and (3) fictionalism (it is useful to pretend that moral statements can be true).
Moreover, there is a typical distinction drawn between, on the one hand, ethical relativism, which claims moral truth or validity is always relative to a moral framework and that no such framework is objectively privileged as the one true framework (alongside its close relative, ethical subjectivism, which takes it that there are as many valid moral systems as there are individuals); and, on the other hand, ethical objectivism, which claims there is one true morality binding for all. In other words, ethical relativism and ethical subjectivism are usually associated with the absence of a single true morality or the claim that any morality is as good as any other, while ethical objectivism claims exactly the opposite.
Although many different classifications are possible, the important thing to point out here is the compatibility between ethical realism and ethical objectivism, since both converge on the existence of moral truth. The difference may lie in the fact that ethical realism evaluates truthfulness by virtue of external facts independent of beliefs and attitudes, while ethical objectivism looks for a “reflective equilibrium” of universally shared moral principles. Anyhow, here I will focus on ethical objectivism.
Diving into the arguments
What is crucial is that ethical objectivism commits itself to the idea of the existence of “one true morality binding for all” but does not have to include what those values precisely are. The core of my critique is that, while we might have good reasons to accept the general commitment, the epistemic justifiability of the latter (i.e. the particulars) is much lower. If I am right, this poses a problem for the CSA, since we do not have the means to decide which values are objective – making the application of legal validity impossible. Namely, even advancing a broad non-positive account of law that would only suggest a general interdependence between legal validity and morality, without encompassing the values, should be abandoned (if ethical objectivism is the sole basis of it), because without even the potential to unravel the moral values the general claim becomes empty. Appealing to their vague existence offers no concrete guidance for determining legal validity. Thus, even a broadly framed non-positivist view that avoids specifying content is epistemically vulnerable, because it still relies on the existence of moral truths that we cannot access or agree upon.
In other words, it is possible to combine ethical objectivism with moral scepticism. As there are many types of moral scepticism and many nuanced claims within it, I argue for dogmatic scepticism about justified moral belief: that is, the claim that nobody is ever justified enough in holding any substantive moral belief. This also logically implies the impossibility of having knowledge (understood as certainty) about particular moral claims, although even in philosophy of science, certainty is usually considered too demanding (including in natural sciences). The crux of the argument is that epistemic reliability for the existence of (undefined) objective moral truths is much higher than the reliability for particular moral claims. Put differently, we can have a justified enough belief in the general existence of objective moral truths, but not about their content. Scepticism about justified moral beliefs does not imply scepticism about moral truth-aptness, which would mean a rejection of the possibility of moral claims being held as true. In plain terms, we can have a justified belief that there are some moral values binding for all of humanity and that moral values can generally be true, even though at the same time we believe that we have no means to determine whether or not we are right in advancing the particular values as true. The latter does not have to imply giving up on the former.
Justified enough belief in universally binding morality and dogmatic scepticism about justified moral belief: some potential arguments
Let us here outline some basic potential arguments in favour of having a justified enough belief that, generally, a universally binding morality exists, along with the basic arguments in favour of dogmatic scepticism about justified moral belief.
One way to for the first position is to assert that morality can originate from an entity that binds all of humanity. For instance, the existence of God or Nature, conceived as universal and all-encompassing, provides a potential foundation for objective morality, insofar as their principles or values are presumed to apply to all human beings by default. If this holds, then all that is left for a justified belief in objective morality is to show that belief in such entities and their power to bind is not irrational. As a crude illustration, it could be pointed out that philosophy and theology throughout history have demonstrated that the belief in an omnipotent being that has the kind of freedom or capabilities required for making moral claims need not be perceived as irrational (on the contrary). For those who are not convinced, Nature is left as a less speculative choice, especially when reduced to biological dispositions that all humans possess. It is a commonplace view that, among the forms of moral realism that are available, non-naturalism is the one facing the most serious epistemological worries. Another common approach to defending general ethical objectivism relies on purely rationalistic argumentation and ‘self-evident’ claims. Despite the fact that their proponents openly consider the idea of self-evidence to be outside of the scope of epistemic verifiability, making such a solution, in my opinion, unfair – this approach has many followers. Finally, ethical objectivism is often defended by invoking an empirical insight with regard to certain moral values adopted in all human societies. None of these approaches seems trivial, irrational, or easily dismissed, which makes them justified enough.
Now, let me turn to moral scepticism about particulars and argue why it has its force. First, even if we believe in any of the sources mentioned, it is doubtful which of the sources we find more relevant and how they may be interconnected. If there is a difference in the morality stemming from those sources, which one is true? Second and more important, there is an inexhaustible range of opposing interpretations of: a) which concrete moral values are true, and b) what is the content or meaning of those values. In the case of God, we cannot be epistemically satisfied about anything. Neither about the existence of it, nor which sources of information are reliable when inquiring about God’s morality, nor which interpretations of those sources have the upper hand in bringing about the true morality. On the other hand, if we choose Nature as a safer path, there is much interpretational space, either concerning the precise behavioural command or the interrelation between potentially opposing values. There might be something normative that binds us all through nature, but what exactly? Evolutionary theories about survival are probably the best guess we have for that matter, although they are not nearly unburdened, especially since it is hard to differentiate between natural and non-natural (cultural) aspects of human existence. Self-evident moral claims face similar problems, although it is hard to conclude anything about their status, as they are purely intuitive and avoid verification. Lastly, accounts that invoke the universal adoption of certain moral values seem to have the most epistemic potential because they rely on verifiable data. However, such accounts often face criticism in light of their doubtful objectivity, based either on the dependence of human beliefs about morality and the is and ought relation, or on their overstatement of agreements, especially concerning the interpretations of the content of moral values.
I believe that these concerns (although very succinct) are sufficient to substantiate dogmatic scepticism about justified moral belief and show that, in comparison to the general commitment to ethical objectivism, their epistemic reliability is much lower. An additional argument in favour of such a conclusion is that the more concrete or particular the moral claim, the more exposed it is to philosophical disagreement. As a result, the epistemic risk of error increases as we move from general objectivist commitments to specific normative judgments. If my evaluation of the epistemic reliability for particulars is correct, then the CSA fails due to the inapplicability of the criteria for legal validity. Of course, the biggest issue is to find the relevant theoretical epistemic threshold (for being justified enough). In that sense, I take it that, however subjective my assessment might be, generally maintaining ethical objectivism meets the needed epistemic requirements, while particular moral claims do not. That does not have to lead to the ‘self-defeat’ of objectivism, i.e. it does not have to collapse into moral relativism or subjectivism, even though proponents of those theories usually invoke sceptical arguments in their favour. Additionally, when it comes to the application of our beliefs and our existential commitment to them, I hold that at the societal level, we need a higher boundary for acting upon our beliefs than individually, because the consequences of such beliefs concern everybody (which is evident in law). One might also wonder what the epistemic difference is between morality and other kinds of social phenomena that could also act as criteria for legal validity. My reply would be that the normative nature of morality suffices for showing this difference, since the above-mentioned epistemic dilemmas indicate why morality is harder to pin down as a fact. As a comparison with legal validity criteria, it would be more reliable to account for social facts regarding law than for moral facts.
A potential conclusion
What is to be concluded from this? If my epistemological analysis of the particular moral claims is correct, then it may mitigate the enthusiasm of the CSA. To be more precise, it may debuff the starting intuitive premise that if we postulate the existence of objective moral values, there is no reason to reject the dependence of legal validity on those objective moral values. Therefore, since we cannot argue justifiably enough which moral values are objective, it seems rational not to demand having a non-positivistic concept of law solely based on the idea of ethical objectivism.
Of course, the whole potential value and contribution of such a conclusion is modest, since it lies completely in the above-given metaethical nuancing. It does not aim to accomplish anything more than estimate if epistemic scepticism about substantive moral assertions is concordant with a commitment to general ethical objectivism and hence reassess and reply to a common-sense understanding of the mentioned relationship in legal philosophy.
My work on this blogpost results from research conducted within the Horizon Twinning project “Advancing Cooperation on The Foundations of Law – ALF” (project no. 101079177). This project is financed by the European Union.
SUGGESTED CITATION: Vojnović, Sava. “Does Ethical Objectivism Imply Legal Non-Positivism?”, FOLBlog, 2025/6/3, https://fol.ius.bg.ac.rs/2025/06/03/does-ethical-objectivism-imply-legal-non-positivism/