Law & Morality
January 19, 2011
A. What does legal positivism claim?
B. What does legal positivism not claim?
C. Why be a positivist?
D. Hart’s replies to 3 criticism:
a. Criticism based on command theory.
b. Criticism based on formalism.
c. Criticism based on response to wicked legal systems.
E. Must a legal system AS A WHOLE have some moral core?
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-Positivism wasn’t being taken seriously so Hart wanted to reestablish it.
-Distinguish from command theory & responding to other criticisms
-Positivism draws a crucial distinction between law and morals.
-It separates the question “Is this a law?” from the question “is this moral/just?”
-What do we mean by Law:
Passed by an authority (such as legislature, judicial decisions)
Sanctions attached to some of them for disobedience
Some general purposes (stability/peace/protect property)
Influence out behaviour/provide guidance (through general acceptance, also
through our own reason)
Bodies in charge for enforcement
Obligatory force (aka normative force)
www.notesolution.com Consistent & universally
*Even if it’s not necessarily just or moral (p.g. 30)
-A rule can violate standards of morality but still be law
E.g. slavery laws in some countries.
-Conversely, just b/c a rule is moral that doesn’t make it a rule of law.
E.g. prohibiting lies
-It doesn’t make the assertion that law and morality are separate there are certain cases
in which positivism accepts the intersection between laws and morals.
-p.g. 29 “positivism does not deny…”
-law influences moral standards. E.g. discrimination law. Sense of it being publicly
acceptable to be discriminatory partially b/c of laws.
-in these ways laws and morals connect (HISTORICAL CONNECTION)
-also doesn’t deny that by express legal provision, moral principles might become the
basis of laws (e.g. Charter of Rights and Freedoms sect. 2, 7, 15… these are all in a sense
moral principles and were made into law by the charter).
-all that Hart denies is that whether something is a law depends on whether it is moral.
-Positivist would give a sociological account of how a law came to be rather than
discussing a moral background or whether it is right or wrong.
-Positivists could say that the motivation for a law could be morals. But they say that that
is not what makes it a valid/real law (with normative or obligatory force)
-law could have its origins in morality but that does not give the law it’s normative force.
-Hart notes on p.g. 29 that Bentham and Austin said that positivism could help us steer
carefully between 2 dangers: REACTIONARY & ANARCHIST
- Reactionaryif something is law, then it must be moral. Evil laws would be assumed
to be just.
-Anarchistif law is not moral, then obedience is not necessary. If it’s not just then it is
- We can steer between these by separating the questions “Is this law?” from “Is this
-Hart encourages us to change unjust laws. But he doesn’t want us to assume that because
they’re unjust they are not law.
Criticism based on command theory:
www.notesolution.com -Bentham and Austin combined positivism with many other doctrines including the
command theory of law.
-many people concluded that due to criticism, not only command theory was wrong but
also positivism was wrong.
-Hart says you can separate them and reject command theory without rejecting
-Command theory states that the obligatory power of a law is that it’s a general command
laid down by an authority.
-Hart says a command is (p,g, 31) simply an expression by one person that another
person should act or abstain form an action followed b threat of force (punishment).
-threat is credible b/c it comes from someone who everyone is in the habit of obeying but
doesn’t have to obey to everyone else.
-Hart has one main objection to the command theory Command theory fails to capture
the kind of force that law has. It confuses obligatory force for mere compulsion. Turns
legal system into a “gunman situation writ large”
-difference between law and gunman situation?
-does not reason with you
-does not provide justification
-just trying to compel you but doesn’t have normative force
-command theory mischaracterizes the