Positivism and the Separation of Law and Morals Author(s): H. L. A. Hart Source: Harvard Law Review, Vol. 71, No. 4 (Feb., 1958), pp. 593-629 Published by: The Harvard Law Review Association Stable URL: http://www.jstor.org/stable/1338225 . Accessed: 04/06/2011 19:46 Your use of the JSTOR archive indicates your acceptance of JSTOR's Terms and Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp. JSTOR's Terms and Conditions of Use provides, in part, that unless you have obtained prior permission, you may not download an entire issue of a journal or multiple copies of articles, and you may use content in the JSTOR archive only for your personal, non-commercial use. Please contact the publisher regarding any further use of this work. Publisher contact information may be obtained at . http://www.jstor.org/action/showPublisher?publisherCode=harvardlaw. . Each copy of any part of a JSTOR transmission must contain the same copyright notice that appears on the screen or printed page of such transmission. JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org. The Harvard Law Review Association is collaborating with JSTOR to digitize, preserve and extend access to Harvard Law Review. http://www.jstor.org

VOLUME 71 FEBRUARY 1958 NUMBER 4 HARVARD LAW REVIEW I POSITIVISM AND THE SEPARATION OF LAW AND MORALS t H. L. A. Hart * Professor Hart defends the Positivist school of jurisprudence from many of the criticisms which have been leveled against its insistence on distinguishing the law that is from the law that ought to be. He first insists that the critics have confused this distinction with other Positivist theories about law which deserved criticism, and then pro- ceeds to consider the merits of the distinction. N this article I shall discuss and attempt to defend a view which Mr. Justice Holmes, among others, held and for which he and they have been much criticized. But I wish first to say why I think that Holmes, whatever the vicissitudes of his Amer- ican reputation may be, will always remain for Englishmen a heroic figure in jurisprudence. This will be so because he mag- ically combined two qualities: one of them is imaginative power, which English legal thinking has often lacked the other is clar- ity, which English legal thinking usually possesses. The English lawyer who turns to read Holmes is made to see that what he had taken to be settled and stable is really always on the move. To make this discovery with Holmes is to be with a guide whose words may leave you unconvinced, sometimes even repelled, but never mystified. Like our own Austin, with whom Holmes shared many ideals and thoughts, Holmes was sometimes clearly wrong but again like Austin, when this was so he was always wrong clearly. This surely is a sovereign virtue in jurisprudence. Clarity I know is said not to be enough this may be true, but there are still questions in jurisprudence where the issues are confused because t The original version of this article was delivered in April I957 as the Oliver Wendell Holmes Lecture at the Harvard Law School. * Professor of Jurisprudence and Fellow of University College, Oxford Visiting Professor of Law, Harvard Law School, I956-57. 593

594 HARVARD LAW REVIEW [Vol. 7I they are discussed in a style which Holmes would have spurned for its obscurity. Perhaps this is inevitable: jurisprudence trembles so uncertainly on the margin of many subjects that there will al- ways be need for someone, in Bentham's phrase, "to pluck the mask of Mystery" from its face. ' This is true, to a pre-eminent degree, of the subject of this article. Contemporary voices tell us we must recognize something obscured by the legal "positivists" whose day is now over: that there is a "point of intersection be- tween law and morals," 2 or that what is and what ought to be are somehow indissolubly fused or inseparable,3 though the posi- tivists denied it. What do these phrases mean? Or rather which of the many things that they could mean, do they mean? Which of them do "positivists" deny and why is it wrong to do so? I shall present the subject as part of the history of an idea. At the close of the eighteenth century and the beginning of the nine- teenth the most earnest thinkers in England about legal and social problems and the architects of great reforms were the great Utili- tarians. Two of them, Bentham and Austin, constantly insisted on the need to distinguish, firmly and with the maximum of clarity, law as it is from law as it ought to be. This theme haunts their work, and they condemned the natural-law thinkers precisely be- cause they had blurred this apparently simple but vital distinc- tion. By contrast, at the present time in this country and to a lesser extent in England, this separation between law and morals is held to be superficial and wrong. Some critics have thought that it blinds men to the true nature of law and its roots in social life.4 1 BENTHAM, A Fragment on Government, in I WORKS 22I, 235 (Bowring ed. I859) (preface, 4Ist para.). 2 D'ENTRiVES, NATURAL LAW ii6 (2d ed. I952). 3 FULLER, THE LAW IN QUEST OF ITSELF I2 (I940) Brecht, The Myth of Is and Ought, 54 HARV. L. REV. 8ii (1941) Fuller, Human Purpose and Natural Law, 53 J. PHILOs 697 (I953). I See FRIEDMANN, LEGAL THEORY 154, 294-95 (3d ed. 1953). Friedmann also says of Austin that "by his sharp distinction between the science of legislation and the science of law," he "inaugurated an era of legal positivism and self-sufficiency which enabled the rising national State to assert its authority undisturbed by juristic doubts." Id. at 416. Yet, "the existence of a highly organised State which claimed sovereignty and unconditional obedience of the citizen" is said to be "the political condition which makes analytical positivism possible." Id. at I63. There is there- fore some difficulty in determining which, in this account, is to be hen and which egg (analytical positivism or political condition). Apart from this, there seems to be little evidence that any national State rising in or after I832 (when the Province

i958] SEPARATION OF LAW AND MORALS 595 Others have thought it not only intellectually misleading but cor- rupting in practice, at its worst apt to weaken resistance to state tyranny or absolutism,5 and at its best apt to bring law into disre- spect. The nonpejorative name "Legal Positivism," like most terms which are used as missiles in intellectual battles, has come to stand for a baffling multitude of different sins. One of them is the sin, real or alleged, of insisting, as Austin and Bentham did, on the separation of law as it is and law as it ought to be. How then has this reversal of the wheel come about? What are the theoretical errors in this distinction? Have the practical con- sequences of stressing the distinction as Bentham and Austin did been bad? Should we now reject it or keep it? In considering these questions we should recall the social philosophy which went along with the Utilitarians' insistence on this distinction. They stood firmly but on their own utilitarian ground for all the prin- ciples of liberalism in law and government. No one has ever com- bined, with such even-minded sanity as the Utilitarians, the passion for reform with respect for law together with a due recognition of the need to control the abuse of power even when power is in the hands of reformers. One by one in Bentham's works you can identify the elements of the Rechtstaat and all the principles for the defense of which the terminology of natural law has in our day been revived. Here are liberty of speech, and of press, the right of association,6 the need that laws should be published and made widely known before they are enforced,7 the need to control administrative agencies,8 the insistence that there should be no criminal liability without fault,9 and the importance of the prin- of Jurisprudence Determined was first published) was enabled to assert its author- ity by Austin's work or "the era of legal positivism" which he "inaugurated." 5 See Radbruch, Die Erneuerung des Rechts, 2 DIE WANDLUNG 8 (Germany I947) Radbruch, Gesetzliches Unrecht und Ubergesetzliches Recht, I StDDEUTSCHE JURISTEN-ZEITUNG Io5 (Germany I946) (reprinted in RADBRUCH, RECHTSPHILOSO- PHIE 347 (4th ed. I950)). Radbruch's views are discussed at pp. 6I7-2x infra. 6 BENTHAM, A Fragment on Government, in I WORKS 22I, 230 (Bowring ed. I859) (preface, i6th para.) BENTHAM, Principles of Penal Law, in i WORKS 365, 574-75, 576-78 (Bowring ed. I859) (pt. III, c. XXI, 8th para., I2th para.). 7 BENTHAM, Of Promulgation of the Laws, in I WORKS I55 (Bowring ed. I859) BENTHAM, Principles of the Civil Code, in i WORKS 297, 323 (Bowring ed. I859) (pt. I, C. XVII, 2d para.) BENTHAM, A Fragment on Government, in i WORKS 22I, 233 n.tm] (Bowring ed. I859) (preface, 35th para.). 8 BENTHAM, Principles of Penal Law, in i WORKS 365, 576 (Bowring ed. I859) (pt. III, c. XXI, ioth para., iith para.). I BENTHAM, Principles of Morals and Legislation, in i WORKS i, 84 (Bowring ed. i859) (c. XIII).

596 HARVARD LAW REVIEW [Vol. 7I ciple of legality, nulla poena sine lege.10 Some, I know, find the political and moral insight of the Utilitarians a very simple one, but we should not mistake this simplicity for superficiality nor forget how favorably their simplicities compare with the pro- fundities of other thinkers. Take only one example: Bentham on slavery. He says the question at issue is not whether those who are held as slaves can reason, but simply whether they suffer.11 Does this not compare well with the discussion of the question in terms of whether or not there are some men whom Nature has fitted only to be the living instruments of others? We owe it to Bentham more than anyone else that we have stopped discussing this and similar questions of social policy in that form. So Bentham and Austin were not dry analysts fiddling with verbal distinctions while cities burned, but were the vanguard of a movement which laboured with passionate intensity and much success to bring about a better society and better laws. Why then did they insist on the separation of law as it is and law as it ought to be? What did they mean? Let us first see what they said. Austin formulated the doctrine: The existence of law is one thing its merit or demerit is an- other. Whether it be or be not is one enquiry whether it be or be not conformable to an assumed standard, is a different enquiry. A law, which actually exists, is a law, though we happen to dislike it, or though it vary from the text, by which we regulate our approba- tion and disapprobation. This truth, when formally announced as an abstract proposition, is so simple and glaring that it seems idle to insist upon it. But simple and glaring as it is, when enunciated in abstract expressions the enumeration of the instances in which it has been forgotten would fill a volume. Sir William Blackstone, for example, says in his "Commentaries," that the laws of God are superior in obligation to all other laws that no human laws should be suffered to contradict them that human laws are of no validity if contrary to them and that all valid laws derive their force from that Divine original. Now, he may mean that all human laws ought to conform to the Divine laws. If this be his meaning, I assent to it without hesita- tion. Perhaps, again, he means that human lawgivers are themselves obliged by the Divine laws to fashion the laws which 10 BENTHAM, Anarchical Fallacies, in 2 WORKS 489, 5II-I2 (Bowring ed. I859) (art. VIII) BENTHAM, Principles of Morals and Legislation, in i WORKS I, I44 (Bowring ed. I859) (c. XIX, iith para.). 1 Id. at I42 n.? (c. XIX, 4th para. n.?).