Legal Positivism: A critique Reading and lecture notes from the second lecture of PHL271H1S. The reading was one of Hart’s essays regarding legal positivism. It went over what legal positivism was, what it was not and outlined the basic issues that legal
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Law and Morality are DISTINCT modes of social ordering.
“Is” and “ought to be” is one and the same, but it should not be so. There are two
dangers to confusing law in this manner:
(1) One is that law and its authority may be dissolved in man’s conceptions of
what law ought to be. For instance, if someone passes a moral
judgement on a current law (abortion is wrong, slavery is right, etc) and
feels that since it is moral it “ought to be” but not yet is; he will ignore
the rules and do what he believes is correct.
(2) The second is that existing law may supplant morality as a final test of
conduct and so escape criticism. People will basically believe that
because it is law it is moral and will therefore not question it.
Legal Positivism DOES ACCEPT the intersection of laws and morals; many mirror
the other throughout time and are influenced by one another. In Austin’s view, this
is why law often confused “ought to be” with “is”. Morality DOES go into and form
Courts are legally bound to decide in accordance with what they thought just and
best (i.e. the constitution, charter of rights). Some morality impacts laws in ways
that limit and give restraint to legal rules and laws (such as the constitution).
However, in Austin’s view, the above did not have the force of law.
It is believed (by legal positivists) that:
(1) In absence of expressed constitutional rule or legal provision… it is NOT
TRUE that if a rule VIOLATED standards of morality that it was NOT a RULE
(2) And vice versa: Just because a certain rule is MORALY DESIRABLE does
NOT make it a RULE OF LAW (for instance, it is morally desirable to not
commit adultery or to lie to people, but neither of these are rules of law)
Legal positivism believes that there needs to be a distinction between what law is
and what it ought to be. However, when Austin and the “founders” of legal
positivism gave this criticism, they had particular laws in mind. In Hart’s opinion,
Austin and Bentham obscured the contact of the two (law, morality, is and ought)
in their insistence (for their doctrines) and with their terminology.
A question we must ask ourselves is whether a legal system that does not satisfy
a moral minimum can be a legal system at all?
The utilitarian/legal positivist doctrine also proposed the two following things:
(1) A purely analytical study of legal concepts (it’s distinctive vocabulary). They
believed it was vital to the nature of law as a historical/sociological study.
(2) An Imperative Theory of Law, which states that law, is essentially a
These three: the utilitarian jurisprudence, imperative theory of law, and the
insistence on an analytical study of legal concepts, are THREE SEPARATE
DOCTRINES. Just because there may be a fallacy in one of those three, does not
mean that the other two are false.
Criticism on the Imperative Theory of Law
This theory comes from the idea that command is key to the science of
jurisprudence and morals. When a judge or court judges in terms of “imperative”
or “prescriptive”, it echo’s this ideal. Now, if law is not followed by command then
it is simply followed by habit of obedience. A command is given by one
What is a command of law? How does it work?
1) It must be general. Like “You cannot slap your spouse”, not “you, Ryan
Doe, cannot slap your spouse on Wednesdays at 6 PM”.
2) It must be/is commanded by people who are in receipt of habitual
obedience from society but do not pay it themselves (the sovereigns).
“Law is the command of the uncommanded commanders of society – the creation
of the legally untrammelled will of the sovereign who is by definition outside the
Is not the above more like the “gunman situation”? People are like at the point of a
gun. This lacks morality and in this case, law is more like a compulsion. This
gunman situation omits the following characteristics/analysis/description of law (as
in, it fails to account for the following):
(1)“Habit of obeying”
(2) Procedures of making law
(3) The fact that legislature must obey #2 and NOT out of habit. Also, the
legislatures obedience of # 2 is NOT a habit of obedience to a “person”
We need an analysis of what it is for a social group and its officials to accept
Is it (obedience that jurisprudence holds to the charter of rights and etc)
obedience to specific persons outside the law or to the rule? The obedience
to law making procedures distort and prove that the second portion of the
command theory of law is not true.
The relationship of commander to commanded. It is a top – bottom, superior
– inferior relationship. This distorts the variety of ways in which laws are
passed in. There is the command – obey/disobey, as in criminal laws. But
there are other ways:
(1)Make rules, have rights, contracts, duties and their frameworks
(2) These do not obstruct, but PROVIDE means for the realization of
wishes and choices. They say “if you wish to do this, this is how”.
Do not confuse rights under the category of commands. Commands
use coercion and punishment; they cannot be ignored and must be
followed through with. Rights, contracts and will are not necessary.
A right or etc gives you the power in which to do something you
want, legally. If you do not go through with it, there is no
punishment, there is no coercion. You also have the right to refuse.
(3) Some, such as Kelsen, attempt to make this look as it were nothing
but an extension of a command. In Harts opinion, this is nothing but
dogmatic determination and suppression of an aspect of law.
Salmond did not agree with the Austinian tradition (that law is a command). He
thought that laws are not commands since we have to speak of them providing
things such as rights and powers. Laws and morals must be connected in order for
us to understand legal rights. Or does a simple verbal coincidence connect the
The continentals questioned whether there is a place for subjective right under the
command theory. Since command is either disobeyed or obeyed, where is there
room for “rights” or “powers”? Now, SINCE there are rights and powers, it must
mean that morals and laws intersect to make rules (and therefore the command
theory of law is incorrect).
In Harts opinion, the continental view is incorrect. He says that technically rights
exist under the rules of ceremony and games. They are rules that are
irrelevant to questions of justice. They do not have to be just or morally good
rules (such as the right to own slaves). Basically, he believes that there are rights
and rules that are granted to people outside the question of “morality” or “justice”.
This proves that just because there is such a thing as a “right” or a “power” in our
legal system, it does not necessarily mean that law as a whole, must intersect with
morals, nor that the command theory is incorrect.
These issues point to the fact that legal systems cannot be analyzed via command
or habit of obedience.
To separate “ought to be” from “is”
“The Realists” of the 1930’s gave us insight into how judicial decisions are
They made us aware of the fact that the terminology (used in law) is crucial. The
terms and words used in law/judicial practices must have standard instances’ and
no doubts. There needs to be a core settled meaning (for terminology/etc).
Law and morality are distinct modes of social ordering. Is and ought to be is one and the same, but it should not be so. There are two dangers to confusing law in this manner: (1) one is that law and its authority may be dissolved in man"s conceptions of what law ought to be. People will basically believe that because it is law it is moral and will therefore not question it. Legal positivism does accept the intersection of laws and morals; many mirror the other throughout time and are influenced by one another. In austin"s view, this is why law often confused ought to be with is . Morality does go into and form some rules. Courts are legally bound to decide in accordance with what they thought just and best (i. e. the constitution, charter of rights). Some morality impacts laws in ways that limit and give restraint to legal rules and laws (such as the constitution).