The Separation of Law and Morals

THE SEPARATION THESIS:

Professor Susan Dimock

Not to be used without written permission of the copyright holder.

H.L.A. Hart, Positivism and the Separation of Law and Morals 1958

THE SEPARATION THESIS: There is no necessary connection between law and morality. We must distinguish between law as it is and law as it ought to be (Austin).

Two parts:

1) Even if a rule violates a moral standard it does not follow that it is not a valid law.

2) Even if a rule is required by morality it does not follow that it is a positive law.

Two dangerous confusions arise from ignoring this distinction:

1) The anarchist position: This is a bad law (ought not to be law), so it is not law (not binding) and I can freely disregard it (have no obligation to obey).

Problem: replaces the rule of law with individual moral judgment.

2) The reactionary position: This is the law, so it must be good (as it ought to be) and so I must obey it.

Problem: Does not allow moral criticism of existing laws.

Connections between law and morality that positivists do allow:

1) historical influence of one on the other, in both directions

2) overlap in content of moral and legal rules

3) that certain laws might explicitly contain reference to moral principles (esp. constitutional provisions)—though controversial and leads to debate within positivism known as hard-soft, inclusive-exclusive posivitisms

4) that judges ought to decide cases in accordance with views of morality and justice

Hart adds two additional points at which we might allow that there is something like a necessary connection between law and morality:

5) given (a) that law is a purposeful activity, created by people for a reason and (b) certain basic though contingent facts about human nature and human circumstances, we might expect that both morality and law will share a core set of rules prohibiting violence and defining property, because these are necessary for human survival

6) there must be a minimal commitment to natural procedural justice, as found in the requirement that we “treat like cases alike,” within all rule-governed activities, including law.

Three arguments against the separation thesis:

1. The argument from the penumbra and interpretation of rules:

· “No vehicles in the park” example of a legal rule

· laws must be written using general terms, e.g. “vehicle”

· all general terms raise questions of classification, whether something falls under the term or not, and such questions of classification are not decided by logic

· general terms must have a core of settled meaning, instances of clear application

· but they also have a penumbra, where the application or interpretation of the term is unclear

· the language in which laws are written is sometimes vague, has an open texture

· there are novel cases in which no existing rule seems to obviously apply

· call all such cases “hard cases” or problems of the penumbra

· in hard cases, judges must decide whether a rule applies or not; how?

· she must decide which application or interpretation is best; she must decide what the law ought to be

Critics of the separation thesis conclude that such cases show a necessary intersection between law and morality. They conclude that in such cases judges must use moral standards implicit in the law to decide what the law ought to be.

But to think that this shows the separation thesis is false rests on two mistakes.

A. It wrongly assumes that ‘what the law ought to be’ in such cases will be determined just by moral standards.

B. It also wrongly assumes that all purposeful interpretation of law must assume a moral purpose. It is true that a good judge, when deciding a hard case, will consider the aims, purposes and policies involved in the case. These will make some decisions better than others. But they need not make the decision morally better.

2. The argument from an obligation to obey the law

What obligation do we have to obey the law?

Generally, it is thought that we have an obligation to obey the law.

Problem: what do we say about our obligation to obey seriously immoral laws?

Those who reject the separation thesis say:

1. All valid laws impose a duty of obedience upon those to whom the laws apply. We have a general moral obligation to obey genuine law.

2. If we allow that there can be seriously immoral but valid laws, then we have a moral obligation to obey such laws.

3. But surely we have moral obligations to obey only decent laws and to resist seriously immoral or unjust ones.

Conclusion: A rule must be morally decent to be a law at all, i.e., to impose an obligation of obedience, as genuine laws do.

Positivists say:

1. Different normative systems give rise to different rights and duties.

2. We have a legal duty to obey the law, and a moral duty to act rightly and resist injustice.

3. If law requires immoral behavior, then we have a conflict of duties from different sources. We face a dilemma.

4. But if the laws are morally bad enough, then surely the moral duty will win out against the legal duty.

Conclusion: In the final analysis, “Ought I to obey this law?” is a moral question. And if the law is really morally bad, then the answer may be “no.”

· Criticism arising from post-Nazi Germany (Gustav Radbruch)

· To say that “law is law,” regardless of its moral quality, promotes blind obedience to the law

Post-war German courts had to decide what to do about a host of morally corrupt Nazi laws, and the people who had been convicted under them, had property confiscated under them, etc.

2 choices:

1. Declare the laws invalid, because they were too morally bad to be law, or

2. Impose explicitly retroactive laws to correct the past injustices.

3. Argument from legal systems as a whole

Even if we grant that individual laws might be seriously immoral and yet valid, someone might insist that this cannot be true of law or legal systems as a whole.

Some things are true of legal systems as a whole that are not necessary for the validity of individual laws (e.g., that it includes sanctions and is efficacious).

Question: Can a system of rules as a whole be seriously immoral and still be a legal system? Hart says “yes” but Lon Fuller will say “no.”

A positive argument for retaining the separation thesis: it allows us to use morality as an independent standard for judging and criticizing law.