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Theories on Concept of Legal Positivism and Separation of Law and Morality

The question of interrelationship of morality and law has been an issue of primary concern to legal theorists. The concept of positive law is only a part of the broad range of legal theories that are manifested all the way through the legal history and in the modern legal system. The origin of the concept of legal positivism can be traced back to the 19th century and the foundation of the concept is based on the combination of several ideas from the liberal and modernist schools of legal ideas. The theories regarding the concept of legal positivism and the separation of law and morality introduced by theorists such as Austin, Bentham and Hart can also be considered in the context of contemporary law and their validity can be determined in the modern context. Further, Kelsen, Dworkin and Finnis also present three different views regarding the separation of morality and law.

Kelsen believed that law and morality are two separate concepts and that there is no scope for morality in law. Finnis being a natural law theorist argues that law should be instilled with a morality discoverable in the form of practical reason, however, it does not imply that there has to be some necessary connection between law and morality. Dworkin suggested that background ideology of political morality is important as it informs the law. However, Dworkin’s theory about morality denies an important aspect of law making that is, any form of traditional beliefs does not influence the law making process hence the concept is outdated. Nevertheless, each theorist admits that there is an existence of conservative morality to the legal sphere, which makes it insufficient to express a clear non-exclusionary idea for law.

Hart argued that the law and morality are not two separate concepts as morality provides ideals for law and law should follow such ideals. The combination of law and morality is present everywhere. For instance- sex determination is prohibited because it is considered as immoral and the fact that the act is prohibited is to clarify and implement the consideration and use the moral terms such as ‘equality’ and ‘duty’ to justify such prohibition. Hart argued that the differentiation between the law and the morals does not signify that morality is subordinate to law.

According to his beliefs, hart opined that there could be immoral legislations that would require people to perform immoral things. However, it does not imply that he was suggesting that since morality is not subordinate to law, so people would have to comply with the immoral legal obligations. On the other hand, it is essential to differentiate between morality and law so that the moral criticisms of the law is clearly prepared and comprehended. He expressly agreed that in the event the laws reach a certain level of inequity, then a pure moral obligation would arise in order to defy such inequity and to retain obedience. He believes that law tells us what one must do and not what it would be beneficial for a person to do. It also requires a person to act in the interests of other persons or in the interest of the public unless law requires acting otherwise. Here, to require people to do such things implies making moral demands from them. Such demands do not undermine morality, as there are certain demands that people fulfill for their own interests and the other types of demand promote the interests of other people.   

Views of Legal Theorists on Separation of Morality and Law

However, a natural law theorist, Lon Fuller has pointed out a severe problem in Hart’s theory stating what the judges should do when they face any kind of immoral law or outcome. Under such circumstances, should the judges apply Hart’s concept of plain legal obligation. If the answer is ‘yes’ then it would imply that the concept of separation of law and morality would not matter much. Even if the concept of law and morality were differentiated, a judge would still consult both the legal and moral views while deciding any case where they face any form immoral law or outcome. On the other hand, if the answer is ‘no’ that the judges should not follow their moral obligation in case they clash with any immoral law, then it would imply that Hart is committed to place law above morality which would be contrary to what he asserted earlier, that morality is not subordinate to law. Therefore, the theory failed to provide a clear idea about separation of law and morality.

The concept of legal positivism states that law should be kept separate from morals and other social factors such as religion, etc and that law is subjected to application that is more general. According to John Austin, law implies a certain level of certainty and clarity and recognizes the existence of a hierarchy system of government, stating that the law is laid down by a higher authority, instead of people belonging to the same level. He believed that the concept of law includes a wish; communication of wish and sanctions. It implies that the person who is giving the demand does so, with the intention t make a person behave in that particular way and such demand is communicated either expressly or by conduct. The law further states that it would take action if the persons did not comply with the demand. Therefore, Austin marked the beginning of the contemporary legal system.  

John Austin is most likely one of the main theorists who maintained a separation between morality and law. It is evident from the fact that the assumption made by the Austinian theory refers to the authorities who make the laws, as competent in exercising the authority. This assumption enables the courts to apply the law freely according to their literal meaning without considering any other irrelevant factors, which may have the probability to influence the decision of the judges. According to him, the courts play the role of applying the law and upheld the same and not to adjudicate whether a particular law is just or not.

Ideologies of John Austin, Jeremy Bentham, and HLA Hart

Legal theorists Jeremy Bentham criticized the common law because it lacked clarity and legal certainty. The legal system proposed by Bentham referred to the law that had a firm framework; clarity in its terms and aimed at achieving on the whole, affirmative result for all the subjects of law, thus fulfilling the needs of the aspect of his utilitarian theory. His proposed system is similar to the legislation system in the contemporary world that stated the judges would effectively have their law-making powers reduced which implies that they assumed the administrative role more than the role of judiciary.

The rationale behind the positive theory introduced by Bentham is similar to the positive theory introduced by Austin. According to Bentham, the law-making powers of the judges were limited that is, they were unable to apply any rules of morality to their legal arguments as they were under legal obligation to implement those laws that are enacted by the Parliament. Therefore, those who followed Bentham’s theory strictly separate the law from any political or social factors associated with it, and the merits and demerits must be left to the legislature.

Hart described law as obligatory rules and persisted to keep the obligations of morality and the obligations of law as a separate concept. Since he regarded law as rules, therefore, non-compliance with such rules or laws was unacceptable by the rest of the community; hence, the peer-pressure usually compelled people to act upon the rules or law of the society. It is evident from his perspective of positive theory that he frowned upon laws that does not safeguard, for instance, basic human rights. He believed that if any law puts the public in any form of dangerous position cannot be considered as valid law. Similarly, any form of law that attempts to threaten the equality of the human race or tends to confuse the public shall not be regarded as valid law.

In addition to the principles set out by Hart, he asserted that any positive law that is contrary to justice must not be obeyed as a matter of conscience. In other words, any law or rule that endangers the life of people or places the welfare of the people at risk or in doubt shall not be adjudicated as a valid or a just law. It is evident from this fact that Hart adopted the theories of Austin and Bentham and applied it in the context of contemporary legal world. His arguments are based on the original theory of legal positivism and incorporated some basic principles of natural law. Therefore, it is apparent that Hart also believes in a certain level of separation of law and morality.

Hart's Five Facts Regarding the Human Condition and Natural Law Theory

However, the ideologies of Hart contradicts with the ideologies of the natural law theorists, Lon Fuller who believes that in order to achieve efficacy, law needs to  meet certain requirements and standards of the population. On the other Hart insists on keeping law and morality as a two different and separate concepts. Fuller argues that in order to apply the law generally and impartially, he refers to the ‘morality of duty’ which includes minimum standard that any legal system must meet that is, the legal system must cover basic moral offences like defamation, murder, etc. Further, a legal system must also meet the standards of ‘morality of aspiration’ that is, what a legal system can turn into if it continues to perform effectively.

Furthermore, Fuller concentrated more on the ways that the laws regulate the conduct of humans that is, the concept of ‘internal morality’ of law than on the essential aims and objectives of law that is, the concept of ‘external morality of law’. Fuller criticized Hart’s theory of legal positivism on the ground that he merely concentrated on the evaluation of law instead of how it regulates the conduct of the people. Fuller states that law is required to be considered with respect to the moral objectives and obligations to establish whether there was any efficacy in the legal system.

Hart has contributed to the natural law theory as well with respect to his following five facts regarding the human condition, namely- human vulnerability, limited altruism, Limited resources, approximate equality and limited comprehension and strength of will. Despite being a positivist, Hart recognizes that morality plays an important role in the establishment of a legal system and the laws or rules but at the time of analyzing the law within the established system, the concept and the role played by morality must not be taken into consideration.

Although Hart accepts that there are occasions where it becomes necessary to combine morality and law with one another, but at the same time, he also points out that such occasions arise where there is no pre-established rule of law. He recognizes the mentioned factors as essential requirements that must be present in any legal system, so that it can function effectively. Hart further asserts his scientific application of law that the concept of law and morality must be kept as a different and separate concept as this is the most effective way to apply the law, due to its ability to have a general effect.

Contradicting Ideologies of Hart and Lon Fuller on Law's Efficacy

Since Hart’s theory was more inclined to the minimum requirements that must be fulfilled by any legal system; Fuller criticized this theory by stating that his theory barely met the minimum standards that a legal system must achieve. According to Fuller, the community could make active contribution to meet the standard required to carry out effective community functions by adopting the concept of ‘morality of aspiration.’ The rationale for such community contribution is that the people in the community would communicate with one another the importance of compliance with the legal principles and that such compliance would lead to a happy life. Fuller states that the regulators would lay down minimum standards for the community and the community would frame its own moral laws which signifies the concept of ‘internal morality’ that is, development of moral laws within the community.

Hart’s perspective about law is restricted to the concept of law as law and not as a matter of right or wrong, that is to be decided by the lawmakers and not by the judiciary. This principle is similar to the principle of Austin who states that law is one thing and the merits or a demerit of law is another thing. This is because Hart always analyzed law separately from any other irrelevant factors that might have the potential to influence the interpretation of laws.

Bentham was the first person to introduce the concept of legal positivism in the 17th century as he was not satisfied with the Common law of England and stated that it lacked clarity and legal certainty. He preferred a legal system that was codified and easy to comprehend. Austin established the idea of process that is required by any legal system to follow to become an effective legal system instead of applying a set of moral principles and satisfying the same. This was evident from his statement that a wish must be clearly communicated and if the same is not followed it would act in retribution. Therefore, the claim of the positivist theorists that law and morality are two separate concepts is true from the perspective of the positivist school of theory but has restricted application in the society and the judges persist to apply this approach to the law without being concerned about the merits and demerits of the law.

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