PP213 – Legal Philosophy
Week 4 – January 29, 2013
H.L.A Hart: The Separation of Law & Morality
The Separation Thesis ▯what legal phenomena exists?; is the legal phenomena good or not?
Separate what is, from what ought to be.
The command of a sovereign agent; compared to what law ought to be ▯morality isn’t a factor
Legal Obligation ▯nothing more than being under the threat of punishment; I am obliged to do
what I am threatened to do (Austin)
The social fact of law, that deep down we are scared of being punished ▯that fact stuck around
for a long time.
Practiced Law, went into WW2, worked as a decoder for the British Investigations Unit.
1. The Priority of the Descriptive/Explanatory Study of Law and Legal Practice
2. The Theoretical Separation of Law and Morality.
3. The Command Paradigm
Hart tried to pry positivism away from this classical positivism model.
“it is possible to endorse the separation between law and morals and to value analytical inquiries
into the meaning of legal concepts and yet think it is wrong to conciene of law as essentially a
Distance that from Austin’s command theory.
Austin’s command theory is “breathtaking in its simplicity and quite inadequate. There is much,
even in the simplest legal system, that is distorted if present as a command” He is not saying that there is not compulsion/threats in law, he is saying law is more complex
than just doing what someone is telling you to do.
Austin’s theory makes the law look like someone holding a gun to your head, Hart says there is
something so much more to law.
Five Specific Problems with Austin’s Account:
1) Change in Government
It is not clear how a brand new government can make laws compared to Austin command theory
paradigm. If you have to have the habitual obedience of your subjects in order to make law ▯how
are you ever going to be able to make law? How would a new ruler be able to make law?
This is not the way our communities work; The moment someone new comes into power they
begin to make laws, they do not have to wait to gain habitual obedience.
2) Limited Sovereignty
Constitutional Law = laws that serve as the backbone of the state; the law/a set of rules that puts
limits on the scope of our government.
The sovereign is never under any binding powers. Everyone is in habitual obedience to them, so
as long as they enforce the orders that they give, they can do anything that they want.
Constitution means that a sovereign ordered itself not to do anything. If you always have the
powers to change the rules whenever you want, then you are not really constrained.
3) Democratic Governance
Democracy = The people rule themselves; the population of a community collectively issues
their own legal rules.
Law comes from some political superior (sovereign), who issues orders under threat to the rest of
us. In democracy, we can think of the entire legal community as the sovereign, so that the entire
group of people is issuing commands to themselves.
Austin says, that in a democracy, all of us would come together and act as a political superior so,
we become our own political inferiors, and we are issuing commands to ourselves under threat. ▯
Austin’s theory does not work.
4) Problem of Rules
Rules are simply a general command, they are nothing more than a set of commands from a
sovereign with a threat attached.
Rules have a top down relationship, they come from someone in higher and they have told you
what to do, so you have an obligation to do it. Different Kinds of Rules:
Duty Imposing cs. Power Conferring
Duty Imposing ▯It imposes a duty upon you, to act in a specific way; you have no choice.
Power Conferring ▯they give you the power/the privilege to act in a certain way if you choose
to; it gives you a choice.
Law has a lot of power conferring rules (Example: Marriage, Running for Parliament, Contracts,
No one is threatened when you create a contract.
5) Disappearing Obligations
Law is supposed to be capable of creating obligations that apply to all legal citizens at the same
Canadian law states that all citizens must pay taxes; we have a legal obligation to pay.
1) If you can guarantee that you won’t get caught, they you’re not really under a threat of
2) And if you’re not under a threat of punishment, then on Austin’s theory – you’re not under and
3) So if you cannot guarantee that you won’t get punished, then you’re not under an obligation to
allow the rules of law.
Austin says that the moment you get out of range, your legal obligation disappears.
Example: You move out of the country to Europe, you no longer have an obligation.
Our obligations do not arise and disappear; our obligations exist because the rules say that they
have to. Obligations exist for as long as the rules are in play.
Hart says 2 Things about Positivism:
Legal officials were able to claim that Nazi Law was a properly formed law ▯The German
officials took a positivist approach to law; German people had legal rules/terms to adhere to Nazi
Positivist theory facilitated the Holocaust.
German officials were good legal subject because they followed the law.
Nazi Law went against Natural Law
For Natural Law, Hart says to claim it was positivism ▯but that if you do, that you are na ïve.
Our legal obligations are determined by the state; but when someone decides what to do in the
world you should consult your moral obligations. What you are told to do, and what you think you should do are two totally different things.
If the government tells you to do something you do not say “okay, what?” – you take a step back
and say “let me think for a minute”
If you want to legally punish Nazi war criminals, then maybe you have to turn to Natural Law.
Case Study: The Grudge Informed Case
This women in Berlin hates her husband for some unknown reason.