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If there is one doctrine that is distinctively associated with legal positivism, it is the separation of law and morality. The principal aim of jurisprudential positivists has been to establish that the essential properties of law do not include moral bearings. As opposed to classical natural law thinkers and in response to recent theorists such as Lon Fuller and Ronald Dworkin, positivists strived to dissolve any number of apparently necessary connections between the law and morality. In H.L.A Hart’s seminal 1958 article on the ‘Positivism and the Separation of Law and Morals’, he insisted that positivism is a theory of the nature of law, not a theory of how lawyers should reason, judges should decide or citizens should act. Hart took Jeremy Bentham and John Austin as his main predecessors; he defended the insistence on the lack of necessary connection between law and morality. Legal positivism indeed involves nothing more than ‘the contention that there is no necessary connection between law and morality.’ Hart therefore resolves to 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, treat the theory as the denial of a necessary connection 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 is held to be superficial and wrong. It has been criticised as hiding the true nature of law and its roots in social life, others thought it intellectually misleading and corrupting in practice. John Gardner, Hart’s first positivist successor in the Oxford Chair of Jurisprudence, has asserts that the separation 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 remarkable positivists, like Joseph Raz and his disciples have questioned the importance and the very plausibility of an insistence on the separation of law and morality. Other positivists are also in doubts of such an insistence as a key component of positivist outlook. These uncertainties put the thesis in a very vulnerable situation.
The idea of a necessary connection between law and morality is nonetheless open to interpretation, and not all ‘necessary’ connections are inconsistent with the principles expounded by leading positivists. Therefore, the separation of law and morality will be considered in a multiplicity of thesis, the discussion will maintain that the criticisms that have marshalled on the separation thesis fail in casting doubts on its significance and sustainability. Therefore, there is no necessary connection between law and morality.
The Positivist Tradition – Heyday Of Its Success
Positivists stand that an objective science of law requires that the law as it is be defined and thereby identified in a morally neutral fashion. 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 in a morally loaded way. They withhold the obligation to obey the law if it is not moral by appealing to moral or religious principles.
The most earnest thinkers in England on legal and social problems and the architects of great reforms were the two great Utilitarian, Bentham and Austin. They persistently insisted on the need to distinguish firmly and clearly the law as it is from law as it ought to be, and condemned natural law thinkers for blurring this clearly simple yet vital distinction. Austin emphasised on the fundamental principles of morality were God’s commands, to which utility was an ‘index’ and there was the actual accepted ‘positive’ morality. Bentham insisted on this distinction solely by reference the principles of utility. Both thinkers insisted that this will allow the precise issues posed by the existence of morally bad laws, and specific character of the authority of a legal order to be discovered and understood precisely.
Utilitarian of course did not mean by insisting on the separation of law and morality has rejected all ‘the intersection of law and morals’. Historically, the development of legal system had been profoundly influenced by moral opinion; likewise, moral standards had been greatly influenced by law, so that the content of many legal rules mirrored moral rules or principles. 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 moral principles might at different points be brought into a legal system and form part of its rules by explicit legal provisions, or that court might be bound to reach what they thought to be just or best decision. Austin spoke of the ‘frequent coincidence’ of positive law and morality and attributed the confusion of what law is with what law ought to be. He differed from Bentham in the thought that restrains on sovereign legislative power could not have the force of law, but as political or moral checks; he nonetheless has recognised that a statute might confer a delegated legislative power and impose restrictions on its exercise based on moral principles. In fact, both of them asserted that it could not follow that if a rule violated standards of morality, that it was not a rule of law; conversely, if a rule was morally desirable, that it was a rule of law.
This simple doctrine in the nineteenth century has dominated English jurisprudence after it was propounded to the world by Austin. The utilitarian separation of law and morals enables lawyers to attain a new clarity. 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 was always critical about Austin did not cast any doubts on this part of doctrine.
The Separation Thesis
The separation thesis is however, not to be identified with Austin’s claim that existence of law depends on its sources and not on its merits. It merely states that the existence of law may not depend on morality. 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 never pauses to consider what positivism holds about, for example, the relationship between law and economics. Therefore, when he says ‘no necessary connection,’ he really means it.
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 level that people who are clueless about jurisprudence know that legal positivists are those who maintain the separation thesis.
The separation thesis is 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’ view that there must be moral tests for law and disregards the opinion of those ‘consensus sociologists’ who suppose that all legal system reflect the spirit, traditions or values of their communities.
Leslie Green suggests that the only tricky idea is that of a ‘necessary’ connection. Hart’s interpretation on ‘necessity’ is too large and liberal. He thinks that a necessary relation is one that cannot fail to hold, 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 argue what is naturally or humanly necessary is not really necessary. 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 separation thesis, all of these are counted as contingent only; neither are they impossible nor necessary. Hart thus constantly asserts that if this is what some claim about ‘the connection between law and morals’ intends we may accept it, but it is not a necessary connection.
The thesis is generally construed so as to tolerate any contingent connection between morality and law, provided only that it is conceivable that the connection might fail. It is nevertheless most problematic because there is a great deal of confusion about its precise meaning. In general, most legal positivists maintain that the minimum content of the separation 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 contended that the legal validity of a given norm and the formation of it as part of the law of that system are depending on its sources, not its merits. 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 separation 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 is no necessary connection between law and morality.
Indeed in The Concept of Law, Hart highlighted the moral benefits in favouring the separation thesis, the benefits of seeing that law has no inherent or intrinsic moral value because neither law takes a stance on any particular moral or political issues, nor is it committed to any moral or political evaluations. For Hart, this is certainly an important set of reasons to adopt the positivist concept of law. Accordingly, Hart concluded that whether one 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.
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 separation 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 general duty to obey the law. Bentham certainly argued for a connection between legal order and political morality, a different connection between law and morality from any that Hart envisaged. 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 necessary connections between law and morality. 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.
Hart’s Challenges To Ineluctable Law-Morality Connections
As a pioneer of legal positivist insistence on the separation 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 contended 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 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 denial of the necessary ties between law and morality that are willingly recognised by any jurisprudential positivists.
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.’ Hart 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 conceptual 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 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 have abstained to 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.
Hart and other positivist have remarkably 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. He conceives that it is truth that matters in philosophical argument, not which proposition is given which name. In recent decades, some legal philosophers including Gardner who are positivists by any conjecturing sought to expose the possibility of varied links between law and morality that are often noticed as necessary. These conjecturing are the salient features in modern jurisprudential wrangling. Hart and other legal positivists have undertaken a sophisticated insistence on the separation of law and morality regardless of the label one affixed thereto.
Therefore, the separation thesis has to be construed with a bit of generosity rather than in an insensitively quibbling fashion if its purpose is to be identified. Although the language of ‘no necessary connection’ is unacceptably rough as a means of summations to the upshot of an insistence on the separation 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 Separation Thesis Defended
The separation 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 separation of law and morality. Coleman believes that the positivists’ affirmation of the separation 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 separation 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 separation of law and morality.
Coleman’s position is quite similar to Gardner’s. Gardner rejects the separation 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, 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 separation thesis.’ Coleman sophisticatedly adopts a simple positivistic position on several points of contention, particularly in connection methodological issues; his manifestations of positivist outlook are quite puzzling because he so narrowly construes the insistence of separation of law and morality when he broaches it directly above. Coleman’s regrettable pronouncements will subsequently be proved.
Positivists have taken several themes on the insistence separation 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, Philip Soper and Michael Moore have pursued traditional natural law attacks in varying ways and degrees on this distinction. Although the standard positivists’ responses to such attacks have attained widespread acceptance, or at least acquiescence, such attacks have not vanished without trace from the jurisprudential scene today.
Non-positivists assert moral conditions conceptually form an essential part of the conditions of legal validity it. Those thinkers then conclude that law naturally features an intrinsic moral worth. In rebuttal, positivists have occasionally challenged such assertion and have sometimes accepted it; however, they rejected the conclusion. The latter strategy has effectively replies the assertions of moral obligations to law on its role in securing public and social order. Positivists can best respond by challenging the unwarranted comparison that absolutely underlines the inference about the moral obligations of law. Such inference simply presumes that the relevant basis for a comparison with each other particular legal system is a state of anarchy that will attribute moral obligations to the norms of such system, on the ground that those norms are the only alternative to chaos. Positivists question this absolute comparison by contending that instead the appropriate baseline is other realistically attainable legal systems, 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 moral obligation.
Another positivists’ resistance to ‘moralised’ law is the self-presentation of a legal system. Soper believe 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 which makes it a good reason for positivists 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 suggest that these terminological affinities are clear indication of deeper connections between the two domains. Soper adopts such a view in his efforts to establish a genuine legal system that is morally legitimate with morally correct mandates. Soper and Raz take for granted that ‘duty’ or ‘obligation’ bears the exact meaning 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. Such overlap is apparently insufficient to warrant Soper’s claim.
The distinction between morality and factuality is debatable. The principle source of disagreements between legal positivists and natural law thinkers is the issues singled out by Coleman’s separation thesis. In particular, 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. Therefore, moral soundness is neither a necessary nor sufficient condition for the status of any norm as a legal norm. For Dworkin and other thinkers 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. These criteria can include, but need not include, moral standards.
Therefore, the thesis is multifarious. It is justifiable to submit that so much is omitted by Coleman and others that suggest the insistence on the separation of law and morality can be reduced to a single thesis. Coleman’s restrictive comments on the separation thesis is unmatched by any similar cramping of his methodological and substantive analysis. Although Coleman does not stand on positivist in every controversy, he does adopt such a position in quite a few of them. However, some of the best positivist’s insights are obscured by his contemptuous remarks that seem to be damaging. The positivists’ affirmation of the separation of law and morality should be grasped with expansive multiplicity instead of in its vagueness. Only then its centrality and profundity become clear. The separation thesis therefore triumphs over its critiques, to slight away that affirmation is to darken counsel.
Joseph Raz & The Separation Thesis
Raz has always been indecisive positivist and sometimes rather hostile on the insistence of separation of law and morality. In his Practical Reason and Norms, he critically assessed some natural law thesis; but he has articulated certain amount of scepticism about the separation thesis. Raz also suggests that the insistence of separation of law and morality can be reduced to a single thesis similar to Coleman. He nevertheless rejected the principle as unsustainable and singles out a different and more extensive principle as the thesis.
As discussed, Coleman claims that the criteria for legal validity in any particular legal system need not include moral tests. He suggests that to maintain the contingency of the role of moral tests as criteria for legal validity is to affirm the separation of law and morality. In contrary, Raz submits that Coleman is wrong. He opines that ‘a necessary connection between law and morality does not require a moral principle as a condition of legal validity. All it requires are the social features which identify something as a legal system involve that it possess moral value.’ Raz insists that the truth of Coleman’s principle is insufficient to illustrate the truth of separation thesis; Coleman interpreted the thesis too narrowly. Raz then proposes a more extensive interpretation, whereby the thesis will be false not only if Coleman’s principle is false but also if any of law’s defining features involve some degree of moral worthiness.
Raz then announces the thesis is implausible, ‘…it is very likely that there is some necessary connection between law and morality, every legal system has some moral merit or moral good even if it is also the cause of a great deal of moral evil.’ He reminds that ‘all major traditions in Western political thought, including Aristotle and Hobbes traditions, believed in such connection.’ Raz denies ‘that a legal system may exist without implementing moral values.’
Therefore, Raz enlarges the scope of separation thesis too modestly in his brief synopsis on some of the conflicts between positivists and their opponents. Similar to Coleman, he impliedly relies only on the morality or immorality and morality or factuality distinctions in illustrating the separation thesis. Although he prudently moves beyond the confines imposed by Coleman, he still gives the false impression that the separation thesis is reducible to a set of minor issues that can be properly understood in a single thesis.
Conversely, to make himsel
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