Positivism and the inseparability of law and morals

New York University Law Review

Volumn 83, Issue 4, 2008, Pages 1035-1058

  Green, Leslie ^a,b,c  

^a Department of Philosophy of Law ^*

^b UNIVERSITY OF OXFORD   (United Kingdom)

^c YORK UNIVERSITY   (Canada)

Author keywords

[No Author keywords available]

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EID: 56049107109     PISSN: 00287881     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (99)

1. H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 HARV. L. REV. 593 (1957).
2. The association of this idea with Hart seems to be a confused interpretation of a thesis that he did hold, namely that the law ought not to prohibit harmless deviation from conventional moral standards. See H.L.A. HART, LAW, LIBERTY AND MORALITY 57 (1963) ("Where there is no harm to be prevented and no potential victim to be protected ... it is difficult to understand the assertion that conformity ... is a value worth pursuing, notwithstanding the misery and sacrifice of freedom it involves."). That is a normative thesis about legislation and not a theory of the nature of law. If positive law necessarily enforces conventional morality, the recommendation would have been pointless.
3. Hart sometimes described the thesis that he opposed as making the claim that law and morals are "indissolubly fused or inseparable." Hart, supra note 1, at 594.
4. I think Jules Coleman first used the term "separability thesis." See Jules L. Coleman, Negative and Positive Positivism, 11 J. LEGAL STUD. 139, 140-41 (1982) (using term to refer to "the denial of a necessary or constitutive relationship between law and morality").
5. Hart, supra note 1, at 601 n.25.
6. Lon L. Fuller, Positivism and Fidelity to Law - A Reply to Professor Hart, 71 HARV. L. REV. 630, 656 (1957).
7. Id. at 631.
8. Id. at 632.
9. Id. at 631.
10. Id. at 643.
11. See id. at 646-47 (suggesting that trial judge who "has the misfortune ... to live under a supreme court which he considers woefully ignorant of the ways and needs of commerce" cannot "achieve a satisfactory resolution of his dilemma unless he views his duty of fidelity to law in a context which also embraces his responsibility for making law what it ought to be").
12. Id. at 643.
13. Id. at 634.
14. Id. at 647.
15. Hart, supra note 1, at 593.
16. JOSEPH RAZ, THE AUTHORITY OF LAW 38-39 (1979) [hereinafter RAZ, AUTHORITY];
17. see also JOSEPH RAZ, PRACTICAL REASON AND NORMS 165-70 (2d ed. 1990) [hereinafter RAZ, PRACTICAL REASON] (discussing "derivative approach" and its "need for a socially oriented identification of [the] law").
18. JULES COLEMAN, THE PRACTICE OF PRINCIPLE 152 (2001).
19. John Gardner, Legal Positivism: 5 1/2 Myths, 46 AM. J. JURIS. 199, 223 (2001).
20. Klaus Füßer, Farewell to 'Legal Positivism': The Separation Thesis Unraveling, in THE AUTONOMY OF LAW 119, 120 (Robert P. George ed., 1996).
21. It is therefore what Stephen Perry calls "substantive," as opposed to "methodological," positivism. See generally Stephen R. Perry, The Varieties of Legal Positivism, 9 CANADIAN J.L. & JURISPRUDENCE 361 (1996).
22. For the view that the separability thesis includes at least one methodological commitment, see James Morauta, Three Separation Theses, 23 LAW & PHIL. 111, 128 (2004) ("The correct analysis [of the concept of law] does not by itself entail any substantive claims about the moral value of law as such.").
23. Hart, supra note 1, at 615.
24. COLEMAN, supra note 16, at 152-53.
25. John Finnis, The Truth in Legal Positivism, in THE AUTONOMY OF LAW, supra note 18, at 195, 205.
26. COLEMAN, supra note 16, at 152-53.
27. For my own view, see Leslie Green, Positivism and Conventionalism, 12 CANADIAN J.L. & JURISPRUDENCE 35, 36 (1999) ("[T]he rule of recognition cannot be understood as a merely conventional norm.").
28. H.L.A. HART, THE CONCEPT OF LAW 185 (2d ed. 1994).
29. See id. at 185-212 (identifying and discussing various connections between law and morality).
30. See generally Hart, supra note 1 (exploring arguments for separability of law and morals).
31. It is the last clause ("and not on its merits") that distinguishes the sources thesis from the social thesis. The social thesis permits the merit-dependence of law, provided only that this dependence is itself a consequence of social facts. See Gardner, supra note 17, at 200 (discussing "attempt[s] to validate certain norms by relying on merit-based tests of their sources"). Others have provided statements and defenses of the sources thesis.
32. See RAZ, AUTHORITY, supra note 15, at 45-52 (proposing that sources thesis "reflects and systemizes several interconnected distinctions embedded in our conception of the law" and "provide[s] publicly ascertainable standards by which members of ... society are held to be bound");
33. JOSEPH RAZ, ETHICS IN THE PUBLIC DOMAIN 210-37 (rev. ed. 1995) (defending sources thesis and explaining its relationship to social - or "incorporation" - and to coherence theses);
34. Green, supra note * (reviewing several considerations supporting sources thesis).
35. RAZ, AUTHORITY, supra note 15, at 38-39.
36. JOHN AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED 184 (Hackett Publishing Co. 1998) (1832).
37. Hart also remarks on Austin's point, see Hart, supra note 1, at 597, 612-13, but the only trace it leaves in the subsequent argument is his claim that not all "oughts" are moral "oughts."
38. HART, supra note 24, at 192;
39. see also Hart, supra note 1, at 622 ("The world in which we live ... may one day change ... and if this change were radical enough ... whole ways of thinking and talking which constitute our present conceptual apparatus ... would lapse.").
40. Hart, supra note 1, at 623.
41. HART, supra note 24, at 172.
42. JEAN-JACQUES ROUSSEAU, THE SOCIAL CONTRACT 68 (Maurice Cranston trans., Penguin Books 1968) (1762).
43. Cf., e.g., Joseph Raz, About Morality and the Nature of Law, 48 AM. J. JURIS. 1, 2 (2003) (discussing whether connection between law and morality should be "litmus test" for theories of law).
44. O.W. Holmes, The Path of the Law, 10 HARV. L. REV. 457, 461 (1897).
45. HART, supra note 24, at 259 (emphasis added).
46. See infra Part III.A (explaining Hart's minimum content and germ-of-justice theses).
47. Fuller, supra note 5, at 656.
48. Id.
49. For an assessment of the debates, see generally Leslie Green, Law and Obligations, in OXFORD HANDBOOK OF JURISPRUDENCE AND PHILOSOPHY OF LAW 514-47 (Jules Coleman & Scott Shapiro eds., 2002), exploring leading theories of political obligation and defending a version of philosophical anarchism.
50. See 2 DAVID HUME, A TREATISE OF HUMAN NATURE 219 (J.M. Dent & Sons 1966) (1739) ("[A] promise would not be intelligible before human conventions had established it; and ... even if it were intelligible, it would not be attended with any moral obligation." (emphasis omitted)).
51. See RAZ, PRACTICAL REASON, supra note 15, at 165-70 (noting that derivative approach "accepts the need for a socially oriented identification of law").
52. Hart, supra note 1, at 624.
53. Id. at 79-82;
54. HART, supra note 24, at 193-200.
55. The second thesis is subject to stringent criticism by, who asserts that formal justice is "an exaggerated expression of otherwise legitimate concern for justice in the administration of the law." David Lyons, On Formal Justice, 58 CORNELL L. REV. 833, 861 (1973).
56. See also John Gardner, The Virtue of Justice and the Character of Law, 53 CURRENT LEGAL PROBS. 1, 9-10, 12-13 (M.D.A. Freeman ed., 2000) (arguing that idea of formal justice is myth, as principles of justice and principles of injustice do not differ in form). I try to make some sense of the thesis in Leslie Green, The Germ of Justice 11-13 (May 2005) (unpublished manuscript, on file with the New York University Law Review).
57. HART, supra note 24, at 206. Hart cites the application of a law prohibiting murder as an example, explaining that such law is "justly applied" if it is "impartially applied to all those and only those who are alike in having done what the law forbids."
58. Id. at 160.
59. Hart also notes that rules of procedural justice "are designed to ensure that rules are applied only to what are genuinely cases of the rule or at least to minimize the risks of inequalities in this sense." Hart, supra note 1, at 624.
60. Hart, supra note 1, at 624.
61. HANS KELSEN, The Idea of Natural Law, in ESSAYS IN LEGAL AND MORAL PHILOSOPHY 34 (Ota Weinberger ed., Peter Heath trans., 1973).
62. See, e.g., JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS 82 (1980) ("[Hart's] list of universally recognized or 'indisputable' ends contains only one entry: survival."). Finnis's list includes at least: life, knowledge, play, aesthetic experience, friendship, practical reasonableness, and religion.
63. Id. at 85-92.
64. The argument that follows is abridged; for elaboration, see RAZ, AUTHORITY, supra note 15, at 28-33, 122-45.
65. See also LESLIE GREEN, THE AUTHORITY OF THE STATE 21-88 (1988) (exploring nature of authority and state's "self image" as legitimate authority);
66. Joseph Raz, Hart on Moral Rights and Legal Duties, 4 OXFORD J. LEGAL STUD. 123, 129-31 (1984)
67. (arguing that, if having duty entails having reason to act, then judges who accept rule of recognition must either accept or pretend to accept that legal duties are morally binding). Note that I am not following Kelsen, see supra note 47, at 31-33, in his assumption that all laws impose obligations. I am assuming only that all legal systems contain obligation-imposing norms, and that these purport to be morally binding on their subjects.
68. But see MATTHEW H. KRAMER, IN DEFENSE OF LEGAL POSITIVISM: LAW WITHOUT TRIMMINGS 84-89 (1999) ("[T]he requirements of legal norms can be stark imperatives that do not in themselves . . . constitute such reasons-for-action.").
69. H.L.A. HART, Legal Duty and Obligation, in ESSAYS ON BENTHAM: JURISPRUDENCE AND POLITICAL THEORY 127, 157-60 (1982) [hereinafter HART, Legal Duty and Obligation];
70. cf. H.L.A. HART, ESSAYS IN JURISPRUDENCE AND PHILOSOPHY 10 (1983) ("[I]t seems to me to be unrealistic to suppose that judges ... must always either believe or pretend to believe in the false theory that there is always a moral obligation to conform to the law.").
71. See HART, Legal Duty and Obligation, supra note 51, at 160 ("[T]o say that an individual has a legal obligation to act in a certain way is to say that such action may be properly demanded or extracted from him according to legal rules or principles regulating such demands for action.").
72. See Gardner, supra note 44, at 2;
73. Green, supra note 44, at 29 (explaining allocative role of adjudication).
74. Fuller, supra note 5, at 644-48.
75. Tony Honoré, The Necessary Connection Between Law and Morality, 22 OXFORD J. LEGAL STUD. 489, 491 (2002).
76. This point is not unique to moral considerations. Something that binds a court only as far as it rationally persuades it is not a source because it lacks authority. There are, however, permissive sources of law which have a very weak form of authority and apply only in limited circumstances. In Scotland, for example, the institutional writers were traditionally a permissive source of law: Customary practice of the courts gave their views weight independent of their merits. In some jurisdictions, foreign law functions as a permissive source. I cannot explore the special features of permissive sources here. For some brief remarks on the issue, see HART, supra note 24, at 294 n.101.
77. See supra note 54 and accompanying text (describing Fuller's analysis of "internal" morality of law).
78. Füßer notes this possibility, though he associates it with anarchism. Füßer, supra note 18, at 122.
79. GRANT GILMORE, THE AGES OF AMERICAN LAW 110-11 (1977).
80. E.P. THOMPSON, WHIGS AND HUNTERS: THE ORIGIN OF THE BLACK ACT 266 (1975).
81. HART, supra note 24, at 91-97.
82. See id. at 94 (describing introduction of remedies for these defects as "a step from the prelegal into the legal world").
83. Stephen Guest, Two Strands in Hart's Theory of Law, in POSITIVISM TODAY 29, 30 (Stephen Guest ed., 1996).
84. HART, supra note 24, at 202.
85. Id. at 117.
86. For an important discussion of this passage, from which we draw somewhat different lessons, see Jeremy Waldron, All We Like Sheep, 12 CANADIAN J.L. & JURISPRUDENCE 169, 186 (1999).
87. H.L.A. HART, 1776-1976: Law in the Perspective of Philosophy, in ESSAYS IN JURISPRUDENCE AND PHILOSOPHY, supra note 51, at 145, 146-47.
88. HART, supra note 24, at 250-54.
89. Id. at 185-86.
90. Id. at 207.
91. See id. at 185 (rejecting view that law necessarily satisfies criteria of morality or justice);
92. DAVID LYONS, ETHICS AND THE RULE OF LAW 63 (1984) (citing positivist view that "law is not necessarily good, right, and just").
93. Note that this is not Füßer's weaker "Fallibility Thesis," according to which "under certain counterfactual circumstances the law would not be morally valuable." Füßer, supra note 18, at 128. It is instead the claim that under actual conditions, there is no guarantee that law satisfies the moral standards by which it is properly appraised.
94. Lyons calls it a "regulating principle," by which he means that it imposes a presumptive justificatory burden on those who deny it. LYONS, supra note 70, at 67 ("The doctrine that law is morally fallible is not a finding of legal theory but a regulating principle.... Any theory implying the law is inherently good, right, and just will bear a heavy burden of implausibility."). My claim is stronger: No acceptable legal theory may deny it; explaining the moral fallibility of law is an adequacy condition of any successful theory of law.
95. HART, supra note 24, at 207.
96. Fuller, supra note 5, at 636.
97. Hart, supra note 1, at 624.
98. ARISTOTLE, POLITICS 113-16 (Ernest Barker trans., Oxford Univ. Press 1962).
99. For a classic study, with a somewhat different emphasis from mine, see generally JUDITH N. SHKLAR, LEGALISM (1964).