There is only one doctrine which has a unique and different association with legal positivism. The name of this doctrine is separation of law and morals and ethical values. The principal aim of jurisprudential positivists has been to establish that the essential properties of law do not include moral bearings. Positivism has a different approach as compared to classical natural law. At the same time, it is completely different from the modern approaches, which were introduced by Lon Fuller and Ronald Dworkin. Positivists strongly emphasize on removing the connection between law and morality. H.L.A Hart is the author of ‘Positivism and the Separation of Law and Moral”. In this article, he contended that positivism is a philosophy and concept which is based on nature of law. Furthermore, he insisted that positivism does not tell how lawyers should reason, judges should decide or citizens should act. Hart defended Jeremy Bentham and John Austin who he took as his main predecessors, the insistence on the need of essential and compulsory link between law and morality.Legal positivism indeed involves nothing more than ‘the contention that there is no necessary connection between law and morality.’ Therefore, Hart settles for a single core positivist legal thought that ‘it is no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have often done so.’Many other philosophers, encouraged by Hart, consider that concept denies the essential and needed link between law and morality. Jules Coleman does not hesitate at all in ascribing this legal positivism thesis. This is perhaps the prevailing view of legal positivists.
During the past decades, this prevailing view has come into questions. It has been regarded as one-dimensional and incorrect. It has been criticised because it conceals the real nature of law and its source of origin in social life. Others argue that it has deceptively misled and distorted law in practical sphere. John Gardner, Hart’s first positivist successor in the Oxford Chair of Jurisprudence, has asserts that the separability thesis is the propagation of a myth. He contends it to be ‘absurd and no legal philosopher of note has even endorsed it.’ Even some estimable positivists such as Joseph Raz and his followers have interrogated the significance and meaning and the credibility of the persistence on the separation of laws and moral values. Other positivists are also in doubts of such an insistence as a key component of positivist outlook.
This report will evaluate and examine the most prominent lines of argument against the traditional image of the orientation of legal positivism, and therefore aims to counter the critiques of the separability thesis. It should be noted that the concept of important association and link is open to analysis and understanding, and not all ‘important’ relations between laws and moral values are in a clash with the legal positivism; in fact, any sensible person will accept that there are countless similarities between law and morality. In determining this effectively, it is essential to discuss separation of law and morality in terms of multiplicity of thesis. The discussion will maintain that the criticisms that have marshalled on the separability thesis fail in casting doubts on its significance and sustainability. It will then be proven that the challenges that have been mounted against it are unjustifiable. Therefore this essay is divided into four parts. It will first discuss the positivist tradition and outline its criticisms. Secondly, it will assess the separability thesis, particularly on Hart’s challenges on the thesis. The third part of the essay will defend the separability thesis whereas the final part is an evaluation of the positivist’s view on the thesis.
The Positivist Tradition – Heyday of its Success
Positivists believe that an independent science of law compels that it should be defined and recognized in an ethically unbiased and impartial way. They emphasise that law is man-made, or ‘posited’, by the legislature. Positivists hold that until a duly enacted law is changed, it remains law, and shall be obeyed. Natural law thinkers however, define law on basis of morality and ethical values. They deny the compulsion and requirement to abide by the law if it is not moral by appealing to moral or religious principles.
During the late eighteen century, the main philosophers in England who thought and analyzed the legal and social problems of the society as well as became the pioneers of reforms were Bentham and Austin. They persistently insisted on the requirement to differentiate strongly and evidently on the law as it should be and denounced the ideals of natural law thinkers, asserting that the natural law theory blurred this distinction.Austin concentrated on the basic ideals and principles of morality and asserted that they were commands of God, where utility was defined as the ‘index’ and that there was the tangible conventional and established ‘positive’ morality. On basis of principles of utility, Bentham argued on this difference. Both thinkers insisted that this will assist in identifying and understanding the issues created by laws, which are morally wrong. At the same time, it would be beneficial in understanding the particular nature and quality of the legal authority.
Although Utilitarian concentrated on separation of law and morality, it did not reject the ‘the intersection of law and morals’. Historically, the growth and expansion of the legal structure has been extremely controlled by moral and ethical values; likewise, moral principles and values have been controlled by law, so that in many ways, there is a strong relation between legal bindings and moral values. It is difficult to trace the causal link, but Bentham and Austin were definitely ready to admit its existence. Bentham and his disciples did not deny that there is a possibility that moral values can enter the legal system and may become part of it by explicit legal provisions, or that system maybe forced to make a decision on basis of morality and ethical values. Austin has discussed these ‘frequent coincidence’ in which positivism and morality are seen together and recognized the perplexity and uncertainty on the objective nature of law. He differed from Bentham in the thought. He asserted that autonomous and independent law-making authority did not have the force of law. He had recognized and identified that a law might confer a representative, who would have legislative power and may have the authority to impose restriction on its restrictions on its exercise based on moral principles. In fact, both of them asserted that if a rule defies the principles and ideals of morality, then it is not the decree or statute of the law. Similarly, if the decree was ethically required, then it was the statute of the law.
This straightforward and uncomplicated principle was found jurisprudence of England in the nineteenth century after Austin has proposed it. Lawyers were able to achieve new clarity when they understood the utilitarian concept of separation of law and morals. Sheldon Amos commented that Austin ‘have delivered the law from the dead body of morality that still clung to it’; and even Sir Henry Maine, who always critically analyzed Austin, did not cast any doubts on this part of doctrine.
A Critique of Utilitarian Theory
After the discussion of legal positivism in the section heyday of success, the theory has emerged to show support for confusing massive amount of different sins. One of it, real or alleged, is on the separation of law as it is and as it ought to be as insisted by Austin and Bentham. This insistence had concealed the fact that at some points there is an essential point of contract between the two. Besides, an examination of how the disputed meanings in law are interpreted and applied in concrete cases will revealed an important connection between law and morality. This connection emerges again if in a broader view, we consider whether a system of rules that altogether failed to satisfy a moral minimum could be a legal system.
Another major complexity was that Utilitarian had combined the persistence differentiating between law and morals through two different and popular doctrines, one doctrine concentrated on the studying the law analytically, whereas the other asserted that the law is considered to be basic and fundamental decree. These are two essential concepts from utilitarian perspective. They are nevertheless three distinctive doctrines because it is possible while endorsing the first two doctrines and think it wrong to understand law as essentially a command. It is utterly baffling that deceptiveness and falseness one showed and proved that the others were untrue and fabricated; moreover, it failed to distinguish three different and divergent doctrines existed from this perspective. Austin attempted to explain moral judgments in terms of vital utterances to reverberate his ambitious command theory; he stated that it was ‘the key to the sciences of jurisprudence of morals’. The command theory nonetheless seems quite overwhelming and remarkable because it is simple and still not sufficient even if it is an attempt to recognize and discover the essence of law as well as that of morals.
Utilitarian believed that the essence and real meaning of the legal structure and system could be conveyed if the command theory was accompanied by obedience. This would have made law a command for the uncommanded commanders of society. This account is definitely threadbare and inadequate because it does not consider the connection and link between the fundamentals of morality and law. Utilitarian scheme also does not consider the study and investigation of what it means for society and its representatives to approve such rules. Such omissions especially the collapse to contend on the essential and significant association between morals and law is open for debate.
The Continental criticisms on the command theory had always alive to the complexity of the idea of a subjective right. John W. Salmond commented that the command theory analysis bring the notion of a right to no place. Similarly, Axel Hagerstrom asserted that the notion of an individual’s right was really inexplicable if laws were merely commands; he contended that commands are something which either we obey or otherwise; they do not confer rights. In fact, rules that confer rights are not necessarily moral rules or agree with them as distinguished from command. In several spheres rights exist, which are regulated by rules. However, they do not have any relevancy to query of justice or what law should not be, nor it requires discussing that rights have to be just. rights be just. This is affirmed by what as Austin put it, ‘the existence of law is one thing; “its demerit or demerit is another”.’ Therefore, it is dependent on the distribution of rights and how they are implemented in the social sphere of life.
The separability thesis is however, not to be identified with Austin’s claim that survival and continuation of law is dependent on its sources and not on qualities or virtues. The sources thesis although inspired by Austin’s tag, it only asserts laws do not exist on basis of moral values and ethical principles. Hart nonetheless is so much interested on the relations between morality and the content, form, and functions of law; rather than between morality and law’s existence conditions. He concentrates on what is the essence of positivism, for instance, the link between law and economics. Therefore, when he says ‘no necessary connection,’ he really means it.
The Separability Thesis
Surely, by this Hart did not mean that law and morality should be kept apart and that law and morality are separated. Likewise, law should live up to ideals set by morality. Hart’s victory was perhaps in promoting ‘positivism and separation of law and morals’ to the stage that individuals, who are unaware of jurisprudence, are ware that legal positivists belong to the separability sphere.
The separability thesis is simply the contention that ‘there is no necessary connection between law and morality’. A ‘connection’ means any sort of relation to social power, social rules, and morality. The term ‘morality’ is more complex as it includes valid and positive morality. The thesis however, only applies to positive morality. It therefore rejects the ‘natural law’ perspective that morality and law should not be separate and it completely rejects the outlooks of those ‘consensus sociologists’ who believe that morality and legal system have to be incorporated together.
Leslie Green suggests that the only complicated and difficult concept is that of ‘necessary’ connection. Hart’s interpretation on ‘necessity’ is too large and liberal. He thinks that an important association is one which cannot be unsuccessful to grasp, but does not have any firmer commitment to the nature of necessity in the social studies. In particular, he does not take an initiative to contend on the issues of what is not important in terms of nature and society. Of course, the content of law is best explained with reference to moral ideas; and perhaps a legal system could not flourish unless it is just. This means that law should confront with morality and normally has moral value. By the separability thesis, all of these are counted as contingent only; neither are they impossible nor necessary. Hart thus constantly asserts that if the claim is on ‘the connection between law and morals’ intends we may accept it, but it is not a necessary connection.
The thesis is considered to be interpreted in order to bear any conditional association between law and moral values, only if which it is plausible that the association may not be workable. It is nevertheless most problematic because confusion exists on its exact meaning. In general, most legal positivists maintain that the minimum content of the separability thesis consists in the claim that determining what the law is does not necessarily, or conceptually, depend on moral or other evaluative considerations about what the law ought to be in the relevant circumstances. The main controversy is about its more extended reach. Therewith, all these confusions and uncertainties form the major part of the criticisms surrounding legal positivism.
Legal positivism today is classified as ‘sloppy’, ‘confused’ and ‘misrepresented’, yet position among positivists largely differ which put it as its most vulnerable. Gardner, a staunch and perceptive defender of Joseph Raz observes that ‘legal positivists have often taken great pains to assert some of the connections between law and morality,’ and he declares that there are many other necessary connections between law and morality, namely that each of consists of valid norms.
Gardner rebukes Hart for formulating the ‘no necessary connection’ in a heavy-handed manner, Hart only ‘seemed to endorse it’ by ‘hint and emphasis.’ Gardner maintains that Hart’s ‘apparent’ endorsement must ‘be read as a bungled preliminary attempt to formulate and defend a much narrower version of legal positivism, which, like Bentham and Austin, he really did endorse.’ He argued that the lawful legality of a given standard and the formation of it as element of the law of that system are depending on its foundations, not its qualities.This thought however, does not entail that validity is morally unmeritorious. Gardner then claims Bentham and Hart had ‘regarded valid laws as necessarily endowed with some moral value just in virtue of being valid laws’.
While Gardner is correct about Bentham and Austin, he seems to be wrong about Hart. Gardner assumes that Hart rejected the separability thesis in his 1958 manifesto by claiming that ‘every law necessarily shows a redeeming moral merit, a dash of justice that comes of the mere fact that a law is a general norm that would have like case treated alike’.However, Hart was just stating the legal requirement of ‘treat like cases alike’ as one essential element of justice, he was aware that this is ‘justice in the administration of the law, not justice of the law’. Therefore, while the ‘treat like cases alike’ requirement is a necessary element of justice and that it is not sufficient; it proves that there mandatory association or link between law and morality.
Indeed in The Concept of Law, Hart highlighted the moral benefits in favouring the separability thesis, the benefits of seeing that law has no inherent or intrinsic moral value because it does not considers any moral or political issues and it completely independent from evaluations, which made on basis of politics or morality. For Hart, this is certainly an important set of reasons to adopt the positivist concept of law. Therewith, Hart concludes that one that is confronted by a morally bad law is to let individual conscience decide, unhampered by any thought that there is a necessary connection between law and morality.
It is perhaps worth noting that Hart, with Bentham’s thought that certain laws might be too evil to be obeyed, sought to enlist Bentham in exactly this version of the separability thesis. Gardner is nevertheless right that Bentham should not be so enlisted. Hart called Bentham’s ‘general recipe for life under the government of laws’ – ‘to obey punctually; to censure freely’, suggest a universal responsibility to adhere to the law. Bentham certainly argued for a association between legal order and political morality, which is a completely different approach as taken by Hart. The real importance of Hart following Bentham’s ‘recipe’ is that one has a general moral obligation to obey the law even he disapproves it, he is nonetheless obliged to criticise the law freely and the institution that produce it, so that the law can be effective reformed. Bentham stressed on the general moral duty to obey the law even there is no freedom, and this duty is to become stronger in a democratic government with freedom, as he opined, obey punctually but criticise freely, it is ‘the motto of the good citizen’.
We should therefore recognise Hart’s ‘no necessary connections’ was intended in the same spirit as his repeated invocation of the phrase ‘Separation of Law and Morals’ – a shorthand for an array of theses with which he denied the important and essential link between moral values and the legal bindings.Hart went beyond the affirmation of the two Utilitarian’s distinction between the laws as it is and the law is it to be and contested many supposedly necessary connections between law and morality. For example, he persistently insisted the motivations underlying officials’ compliance with ruleof law requirements can credibly be prudent rather than moral. He likewise challenged Fuller’s contention that the basic formal characteristics of legal norms and legal systems constitute an inner morality of law.
Hart’s Challenges to Ineluctable Law Morality Connections
As a pioneer of legal positivist insistence on the separability thesis, Hart made apparent from the beginning that he was advancing more than a single thesis. Hart defended positivism in the beginning of his essay to which Gardner principally refers. He argued that it is time to recognise that ‘…there is a “point of intersection between law and morals,” or that what is and what ought to be are somehow indissolubly fused or inseparable, though the positivists denied it.’ He queried the meaning of these phrases or rather which of the many possible meanings that they could mean. Hart also asked ‘which of them do positivists deny and why is it ostensibly wrong to do so?’
This stage of his defense is collaborated with the approach he pursued in his discussion of law and morality in the ninth chapter of The Concept of Law, he indicated that
‘…there is some further way in which law must conform to morals… Many such assertions either fail to make clear the sense in which the connexion between law and morals is alleged to be necessary; or upon examination they turn out to mean something which is both true and important, but which it is most confusing to present as a necessary connexion between law and morals.’
Hart’s positivist confrontations with natural law thinking therefore were not confined to a single set of issues, but on a variety of fronts in order to expose the un-sustainability of a medley of purportedly necessary connections between law and morality. He dangled phrases such as ‘no necessary connections’ as sweeping summations of the diverse points which positivists make in reply to their opponents. Hart hardly intended those phrases to be interpreted as an outrageous rejection of the important relations between the morality and law, which are willing recognised by any jurisprudential positivists.
Alertness to the varieties of legal positivists’ replies to their enemy is then, the key to grasping the role of some of Hart’s sloganeering phrases that are harmless and doubtlessly valuable as unrefined summations of those replies. To be sure, Hart submitted that the status of moral soundness as a necessary condition for legal validity ‘may still be illuminatingly described as the issue between legal positivism and natural law, though each of these titles has come to be used for a range of different theses about law and morals.’ He further suggested that legal positivism shall be taken to mean ‘the simple connection that it is no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have often done so.’ Hart singled out this matter as the prime point of controversy, however he was merely highlighting those legal positivists and natural law thinkers had indeed traditionally crossed swords on precisely that point. Later in his works, very much of the challenges launched by Hart were chiefly in response to his critics such as Fuller, Dworkin and Finnis. He reemphasised that he as a legal positivist argued many ‘different forms of the claim that there is a connection between law and morality which are compatible with the distinction between law as it is and as it ought to be.’
Gardner chooses for a much more restrictive form of positivism, following Raz’s ideas, he articulates that in any legal system, ‘whether a given norm is legally valid, and hence whether it forms part of the law of that system, depends on its sources, not its merits.’ In Raz’s perspective, this thesis enunciated by Gardner rehearses the traditional positivist tradition between the law as it is and as it ought to be. Therefore, Gardner’s thesis is certainly a positivist principle.
Gardner however does not capture the whole of positivist message. Neither is he justified in ignoring the various respects in which a number of positivists have endeavoured to rebut assertions of necessary connections between law and morals; nor should we agree with Gardner’s view that the ‘no necessary connections’ formulation is misleading with thought that it denies only one necessary link between legal and moral domain.Matthew Kramer reasons these by contending that even though Hart has gone beyond his great legal positivist predecessors in the width of their contestation of apparently unavoidable ties between law and morality, Gardner and other Raz’s disciples likewise go beyond those predecessors by supporting the Exclusivist’s variety of legal positivism in preference to Inclusivist varieties. Hart observed that his positivists’ ancestors favoured the Inclusivist position before the controversies between Inclusivist and Exclusivist. Hence, like Hart, they abstained the view that it is necessarily not the case that the status of norms as legal norms ever depends on moral tests.
Hart’s expansion of the range of positivist attacks on presumably necessary connection between law and morality was because of his keen interests to the normative dimension of law, which had been largely obscured by his positivist predecessors. Hart had to engage in crucial battles that were never similarly pressing for Austin, his greatest advances over Austin was his knowledge to law’s normatively that posed new challenges for him, he defended by fending off arguments that equate law’s normatively with moral’s. Therefore, this is doubtlessly another reason to reject Gardner’s narrow understanding of conception of legal positivism; otherwise, we would render a lot of the disputes that have preoccupied legal positivists and their opponents during the past five decades as quite enigmatic. Remarkably, positivists such as Hart have taken themselves to be defending positivism against those critics by theorists such as Fuller, Dworkin, Finnis, Stephen Perry, Gerald Postema, Philip Soper, Nigel Salmond, Roger Shiner and Robert George that in varying ways casting doubts on theories of legal positivism. Noting that, most disputes have not focused on Gardner’s thesis which he regards as the solitary distinctive doctrine of positivism, thus most of the proponents and detractors of positivism in last five decades have been very confused, particularly on the specific points and general nature of debates.Although this expression is coherent, it seems a little bizarre. Therefore, it should be contended that Gardner’s conception of positivism is undeniably restrictive.
Gardner is right when he remarks that we should not always quarrel over a label. Gardner conceives that it is truth that matters in philosophical argument, not which proposition is given which name. In recent decades, some legal philosophers who are positivists by any conjecturing, including Gardner’s reckoning, sought to expose the possibility of varied links between law and morality that are often noticed as necessary. It is contended that these conjecturing are the salient features in modern jurisprudential wrangling. Thus, Hart and other legal positivists have undertaken a sophisticated insistence on the separability of law and morality regardless of the label one affixed thereto.
The separability thesis has to be construed with a bit of generosity rather than in an insensitively quibbling fashion if its purpose is to be identified. It is suggested that although the language of ‘no necessary connection’ is unacceptably rough as a means of summations to the upshot of an insistence on the separability thesis, its clarities largely offsets its temerity. Therefore, the ‘no necessary connection’ formulation might be accepted as a slogan that provides an understandable synopsis to some major reasoning developed by legal positivists.
The Separability Thesis Defended
The separability thesis captures well Hart’s idea that ‘there is no necessary connection between law and morality.’ As Hart’s electrifying survey of various different relations between law and morality shows, the thesis applies and is intended to apply to all of them. The contradicting reactions between Gardner and Coleman were mainly due to the scope of the thesis: one takes it literally and pronounces it absurd; the other pares it down and declares it obvious.
Unlike Gardner, Coleman ascribes the legal positivism claim without any hesitations. He recognises that such claim is in need of interpretation and in doing so; he severely limits the scope of the positivists’ insistence on the separability of law and morality. Coleman believes that the positivists’ affirmation of the separability thesis is quite naive. He contends that the ‘…thesis asserts that it is unnecessary that the legality of a standard of conduct depend on its moral value or merit.’Although the thesis is a central principle of legal positivism, Coleman opines that it is no distinctively positivistic because just about every legal philosopher has endorsed it. He submits that it is not utterly accurate to characterise legal positivism by the separability thesis because once it is properly understood, neither positivists nor anyone rejects it.
Coleman thinks that if the thesis is ‘properly understood’; it is only a claim about ‘the content of the membership criteria of law’. Coleman is of particular interest only on the thesis that bears the ‘existence conditions of the not necessarily moral criteria.’ No one however thinks that these must be moral criteria; not even John Finnis, who openly recognises that ‘human law is artefact and artifice, and not a conclusion from moral premises.’ Thus, Coleman concludes that the hallmark of positivism is an insistence on the conventionality of law, not the insistence of the separability of law and morality.
Coleman’s position is quite similar to Gardner’s. Gardner rejects the separability thesis whereas Coleman embraces it with the interpretation that it overlaps with the one Gardner attributes to legal positivism. Both of them substantially limit the reach of its resistance to the postulation of necessary connection between law and morality and submit that the resistance is confined to legal validity. However, in fairness to Coleman, it should be remarked that he acknowledges that ‘the debates between positivists and natural law thinkers are considerably richer and more complicated than might be inferred from his discussion of the separability thesis.’ He naively adopts simple positivistic position on several points of contention, particularly in connection methodological issues.
Positivists have taken several themes on the insistence of law and morality, one of the most familiar themes is the traditional distinction between the law as it and as it ought to be. In contrary to what Coleman declares, the distinction is not wholly uncontroversial. The traditional philosophers as eminent as Dworkin, Soper and Michael Moore have pursued traditional natural law attacks in varying ways and degrees on this distinction. Thus, although the standard positivists’ defences to such attacks have attained widespread acceptance, or at least acquiescence, such attacks have not vanished without trace from the present day jurisprudential scene.
Anti-positivists claim that law is necessary for the attainment of morally vital state of affairs and conclude that law is endowed with an intrinsic moral worth. Although positivists occasionally challenged such contention, they have sometimes accepted it; however, they rejected its conclusion. It is the best respond from positivists if they challenge the unwarranted comparison that absolutely underlines the inference about the prima facie moral obligations of law, not by denying the indispensable role. Indeed, positivists question this absolute comparison by contending that instead the appropriate baseline is other realistically attainable legal regimes, some of which may well be morally superior to the regime under consideration. Hence, if positivists can rebut the view that mandates of every legal system are possessed of such obligations as legal mandates, they are able to block any general inference of prima facie moral obligatoriness.
Another positivists’ resistance to moralised law is the self-presentation of a legal system. Soper believes that every legal system presents itself as morally legitimate with morally correct mandates. They posit a necessary connection between law and morality at the level of discourse, particularly by maintaining that officials’ legal pronouncements are inextricably bound up with moral assurances. Soper opines that those pronouncements cannot retain a minimum credibility if their assurances of moral legitimacy are wildly outlandish; he consequently contends that nothing can count as a genuine legal system unless it surpasses some modest threshold of moral acceptability. These reflections have encapsulated him to a traditional natural law position. Thus, positivists are encouraged to challenge Soper’s claim about the self-presentation of legal system.
Besides, law and morality share a similar terminological structure; key terms such as ‘right’, ‘obligation’, ‘authority’ and ‘permission’ are prominently operative. Some theorists therefore suggest that these terminological affinities are clear indication of deeper connections between the two domains. Soper advances such a view in his efforts to establish a genuine legal system that is morally legitimate with morally correct mandates. Like Raz, Soper actually takes for granted that ‘duty’ or ‘obligation’ carries the same meaning both in legal and moral contexts. Hart therefore submitted that the conceptual overlap is formal rather substantive, but not outrageously that the terminology correspondences are unaccompanied by any conceptual overlap.
Another area of debate is on the distinction between morality and factuality. Here, the principle source of disagreements between legal positivists and their foes is the issues singled out by Coleman’s separability thesis. Positivists submit that the endeavours of officials in ascertaining the existence and contents of legal norms are not necessarily guided by any moral assumptions, but concentrate strictly on observable fact. It is therefore the case that moral soundness is neither a necessary nor sufficient condition for the status of any norm as a legal norm. For other theorists that characterised the process of law ascertainment as unavoidable enterprise of moral deliberation, the inclusive legal positivists have held that the role of moral judgments in the process is a contingent matter determined by each legal system’s particular rule of recognition. Hence, this can include, but need not include, moral standards.
In summary, these laconic arguments have outlined some of the chief points that suffice to illustrate their rich multifariousness. Notably, the restrictiveness of Coleman’s comments on the separability thesis is not match by any similar cramping of his methodological and substantive analysis. Although Coleman stands on positivist in every one of the controversies, he does adopt such a position in quite a few of them. Coleman’s disdainful remarks about the separability thesis are damaging to legal positivism by obscuring some of the best positivist insights. Most of the recent conflicts between positivists and their adversaries are blurred by those remarks. Therefore, when the positivists’ affirmation of the separability of law and morality is understand in its expansive variegatedness rather than only in its most pallid formulation, its centrality and profundity become clear. To slight that affirmation is to darken counsel.
Joseph Raz & the Separability Thesis
As an estimable positivist, Raz’s attitude on the insistence of separability of law and morality has always been uncertain, sometimes been downright hostile. He has expressed scepticism in much of his works about the separability of law and morality. Raz suggests that the multifaceted positivists’ insistence can reduced to a single thesis, similar to Coleman. In contrary to Coleman, Raz singles out a different and more capacious principle as the separability thesis and rejects that principle as unsustainable.
Coleman construes the thesis as a claim that the criteria for legal validity in any particular legal system need not include moral tests. He suggests that to assert the contingency of the role of moral tests as criteria for legal validity is to affirm the separability of law and morality. Raz however, submits that Coleman is wrong, he further opines, ‘a necessary connection between law and morality does not require that truth as a moral principle is a condition of legal validity. All it requires is that the social features which identify something as a legal system entail that it possess moral value.’ He maintains that the truth of Coleman’s principle is insufficient for the truth of separability thesis because Coleman construed the thesis over narrowly. Raz therefore opted for a broader specification of the thesis that the thesis will be false if any of law’s defining features entail its possession of some degree of moral worthiness.
Raz then proceeds that ‘the separability thesis is… implausible… there is some necessary connection between law and morality, every legal system in force has some moral merit or does some moral good even if it is also the cause of a great deal of moral evil.’ Furthermore, he reminds that ‘all major traditions in Western political thought, including Aristotle and Hobbes traditions, believed in such connection.’ Hence, Raz is on solid ground in censuring Coleman for conceiving of the separability thesis too restrictively. Raz however enlarges the scope of separability thesis far too modestly. The main problem lies in the notion that legal positivism’s insistence on the separability of law and morality can aptly be recounted as a single thesis. Raz consequently obscure the fact that many of the liveliest debates over the separability of law and morality have in recent decades been primarily on the morality dichotomy. Although he wisely moves beyond the confines imposed by Coleman, he still conveys the false impression that the matter of separability is reducible to a very small set of issues that can be captured in a univocal thesis.
While renouncing ‘the facts which determine the existence and content of law do not guarantee any moral value,’ Raz contends it is true that the necessary connection between law and morality which is likely to be established by his arguments is weak. Moreover, he submits that it is sufficient to establish prima facie obligation to obey the law. For one thing, Raz does not do justice to the comparative character of any genuine moral assessment. Neither of his remarks suitably takes account of the fact that some morally good results can of moral value; nor adequately acknowledge that the role of law as a necessary condition for certain moral desiderate is insufficient to vest la with any inherent moral worth.
Raz’s passing reference to the Aristotle and Hobbes traditions in Western political thought is unquestionably correct in declaring that past and present political thinkers have believe that law as such does inherently partake of some degree of moral worthiness. In most if not all cases, however, they have believed as much because they have further believed that the rule of law is necessary for the realization of extremely important moral desiderate such as the preservation of public order and the coordination of social life and the promotion of individual freedom. The latter belief is entirely accurate. It does not support the thesis that law partakes of some inherent moral worthiness.
The rule of law is indispensable for the continuation of wickedly exploitative and repressive governmental institutions on a large scale over a long period. Therefore, if we were to ascribe inherent moral worthiness to law because of its status as a necessary condition for the attainment of key moral desiderata, we should likewise ascribe inherent moral iniquity to law because of its status as a necessary condition for the successful long term pursuit of heinous purposes by evil regimes that rule over sizeable societies. We should not engage in either of those inconsistent ascriptions. We should conclude that the moral bearings of law are not inherent but are determined by its contingent substance and by the uses to which it is put in various settings.
Remarkably, we reaffirm legal positivism’s insistence on the separability of law and morality. On some occasions those theorists have suggested that certain important strands of the positivist insistence on the separability of law and morality are in fact outside the scope of jurisprudential positivism, and on other occasions they have squarely impugned certain elements of that insistence. Whatever may be their reasons for discounting central tenets of legal positivism that have been elaborated in tussles with natural law theorists of sundry stripes, they have indeed de-emphasized or abjured a number of those tenets.
To reassure, an unswerving allegiance to those tenets is not a necessary condition for the applicability of the ‘positivist’ label. Raz is surely a legal positivist even though he has eschewed any such allegiance. Nevertheless, the vibrant heart of legal positivism at least during the past five decades is a far-reaching insistence on the separability of law and morality, from which these positivists have distanced themselves.
In conclusion, any sensible person should accept that there are countless similarities between law and morality. The vast majority of those similarities are utterly trivial, but a small proportion of them such as the normative legal propositions and moral propositions are significant. When we distinguish among morally contrasted with immorality and morality contrasted with prudence and morality contrasted with factuality, we can discern that nearly all of the important and ostensibly necessary connections between law and morality – in any of the three specified sense of ‘morality’ – are contingent at most.
During the past five decades, natural law theorists of differing persuasions have proclaimed quite a few of those contingent connections to be ineluctable bonds. Legal positivists have developed fruitfully in response to those proclamations, as its proponents have endeavored to expose the un-tenability of the natural law arguments. Their endeavors have doubtless expanded the ambit of legal positivism beyond its historical contours, but the expansion has improved to the great benefit positivism by underscoring the soundness and versatility of its general insights.
Legal positivists’ altercations with natural law thinkers can shed light on the battles that take place among positivists themselves.
H.L.A Hart, ‘Positivism and the Separation of Law and Morals’ in H.L.A Hart, Essays in Jurisprudence and Philosophy (OUP, Oxford 1983)
H.L.A Hart, The Concept of Law (2nd edn Clarendon Press, Oxford 1994)
Jules Coleman, The Practice of Principle (OUP, Oxford 2001)
Joseph Raz, ‘Practical Reason and Norms’ (Princeton University Press, Princeton 1990)
Joseph Raz, ‘Ethics in the Public Domain (OUP, Oxford 1994)
Matthew H. Kramer, Where Law and Morality Meet (OUP, Oxford 2008)
Andrei Marmor, ‘Legal Positivism: Still Descriptive and Morally Neutral’ (2006) 24(4) O.J.L.S 686
Deryck Beyleveld and Roger Brownsword, ‘The Practical Difference between Natural Law Theory and Legal Positivism’ (1985) 5(1) O.J.L.S 3
David Dyzenhaus, ‘The Genealogy of Legal Positivism’ (2004) 24(1) O.J.L.S. 39
H.L.A Hart, ‘Positivism and the Separation of Law and Morals’ (1958) 71 Harv. L. Rev. 593
John Gardner, ‘Legal Positivism 5 ½ Myths’ (2001) 46 Am.J.Juris. 199, 233
Leslie Green, ‘Positivism and the Inseparability of Law and Morals’ (2008) 83 N.Y.U.L.Rev. 1035
Feel free to leave a comment below if you enjoyed reading this post written on jurisprudential positivist theory. Also, leave a comment if you feel that you can add or contribute to this post. Don’t hesitate to share this post using Facebook, Google+ or Twitter, I’d like to create as much social buzz as possible.