LEGAL POSITIVISM

Topics:
1. Jeremy Bentham - Utilitarianism
2. John Austin - Command Theory
a. Austin’s ‘The Province of Jurisprudence Determined’
b. A Critical Interjection
3. Hans Kelsen – The Pure Theory of Law
a. Definition of law
b. The legal norm
c. Imputation
d. Validity
e. The basic norm
f. Limits of legal analysis
4. Hart's Concept of Law: Primary and Secondary Rules
a. Hart's "Rules" and Dworkin's "Principles"
b. Dworkin's "Third" Theory of Law
5. Separation of law and morals
a. Hart – Devlin Debate
b. Hart – Fuller Debate
6. Dividing line between natural law theory and legal positivism

1. Jeremy Bentham - Utilitarianism

“Nature has placed mankind under the governance of two sovereign masters, pain and
pleasure.”
As a social scientist, Jeremy Bentham (1748–1832) was a visionary born 150 years
too soon. A passionate advocate of quantitative method in social observation, he
lived in an England where even an elementary census was unknown until 1801.
Convinced that a fixed neutral vocabulary is a necessary condition of scientific
advance, he spent his life in a gallant but futile effort to redefine the highly emotional
and ambiguous language of morals and politics. He hoped in vain to create a
science of human behavior, the objective study and measurement of passions and
feelings, pleasures and pains, will and action. The Principles of Utility were the sum
of these new definitions and working hypotheses.
But if utilitarianism was intended as a coolly detached science, its source was angry
passion. Bentham was first and last a reformer, not merely a scientist, and he never
spoke of “science” but always of “art-and-science.” “Knowing without doing,” he often
said, “is worthless.” He studied what is—the social facts—in order to create what
ought to be. And the facts as he observed them in late-eighteenth-century England
horrified him.
Bentham was a precocious child, who read history at the age of three, and whose
pushing middle-class father intended him to become first a barrister, then Lord
Chancellor and a member of the peerage. He was therefore sent to Westminster
School, London, and Queen’s College, Oxford, the two most fashionable schools in
England and centers of Establishment orthodoxy. Everything he found there repelled
him: the gloomy religion, the forced subscription to the Thirty-nine Articles, the arid
classical curriculum, the brutality and snobbery of students and masters alike. But it
was not until he began to read law at Lincoln’s Inn, in 1766, that his disgust became
rebellion, and he dedicated his life “to cleansing the Augean stable.” Born of his
hatred of English law, this passion for radical reform ultimately spread to all of man’s
ideas and acts: psychology, ethics, semantics, education, economics, sociology, and
political theory.
English common law and equity
seemed to Bentham archaic,
uncodified, incomprehensible, arbitrary,
irrational, cruelly vindictive, tortuously
dilatory, and so ruinously expensive
that nine out of ten men were literally
outlawed. It seemed to him a labyrinth
without a clue until he discovered the
Principle of Utility. This he saw as an
ethical commandment for rulers: act
always to ensure the greatest happiness of the greatest number.
He then needed an effective definition of happiness and, reading avidly among the
philosophes, found it in Helvétius. Happiness is a compound sum of pleasures and
pains, the greatest amount of pleasure and the least amount of pain. But what is
pleasure, and what is pain? Bentham was completely latitudinarian: Whatever a man
chooses to consider so; the variety of motives is infinite. These principles of
psychology and ethics he developed in his two earliest books, the only ones by
which he is remembered today, A Fragment on Government (1776) and An
Introduction to the Principles of Morals and Legislation (1780).
Bentham hoped to apply the verbal precision and quantitative methods so
successful in the physical sciences to the social sciences. His notorious
psychological “calculus” was an attempt to measure the varieties and dimensions of
pleasure and pain, and he offered it humbly, not as an exact scale, but as a useful, if
crude, working hypothesis for the legislator. He appealed to judges and legislators
who inevitably do weigh and strike a balance between crimes and punishments to
open their imaginations to the endless range and consequences of human action.
Therefore, according to the Greatest Happiness Principle, the evil of a crime is
proportionate to the number of people hurt by it. The less the social pain, the less
the punishment. It follows that motives are largely irrelevant in criminal law, and that
sexual “offenses” like homosexuality are not crimes and should not be punished.
The Greatest Happiness Principle and its four subordinate ends of good government
governed all of Bentham’s reforms: subsistence, abundance, security, and equality.
Subsistence is a necessary condition of all government, even the most tyrannical. Its
absence means starvation and anarchy. The test of good government is the
measure of abundance, security, and equality it provides. By this standard,
eighteenth-century English mixed monarchy was bad government, unable to provide
abundance and violently insecure and unequal. Bentham therefore sought to provide
these good ends in a series of radical reforms.
In his social and economic reforms he added these principles of abundance,
security, and equality to the doctrines of Adam Smith, and the sum was a welfare
state with free education, guaranteed employment, minimum wages, sickness
benefits, and old-age insurance. Perhaps his most imaginative flight into social
policy, certainly his most visionary as a social scientist, was his scheme for
“Panopticon Hills.” By the 1790s the problem of poor relief had become critical. In
the turmoil of the early Industrial Revolution, the number of paupers had vastly
increased, and with them so had the tax rates and administrative chaos. Bentham
proposed a national network of self-supporting “houses of industry,” small
manufacturing centers surrounded by farms, where all of society’s victims
—orphans, cripples, the impoverished, the aged, unemployed workingmen,
pensioned sailors and soldiers, unwed mothers—would be welcomed and could
flourish. In these earthly paradises everyone would be educated and trained to the
top of his talent.
Here Bentham hoped to see the first social laboratory where experiments under
controlled conditions could be undertaken. He suggested work and leisure studies
and wanted to ask such questions as: How much better does a man produce whose
work is varied and interesting than one whose work is tedious and repetitive? What
is the best ratio between hours of work and hours of leisure? What are the best
incentives to efficient production? How can full employment be guaranteed? Indeed,
he abandoned economics and social planning altogether around 1804, humbly
admitting that in the absence of reliable economic and social data his hypotheses
were guesswork.
In administrative, legal, and parliamentary reform he was far more successful. He
gave reformers not only an ideal, the greatest
happiness of the greatest number, but also an
exact plan to gain it. He gave a set of working
hypotheses and rules to apply to any given social
problem. Among the most important was the
principle of single-seated responsibility and the
priority of procedure and evidence in law. The
legislator or administrator must have full central
authority to gather every shred of relevant
evidence, to conduct completely free inquiries,
and to enforce his decisions.
In the reform of civil and criminal law Bentham
again found an army of disciples, for by the end
of the Napoleonic Warṡ, in 1815, the archaisms and anomalies of the law had
become intolerable to many others besides him. Among them were younger
contemporaries like Sir Samuel Romilly and Lord Chancellor Brougham and late-
nineteenth-century legal scholars and judges like Sir Henry Maine. In so vast a field
of tradition and precedent the work was slow and piecemeal, but at last, by the great
consolidating Judicature Act of 1873, the separate courts of law and equity were
brought together under Bentham’s principle of single-seated responsibility.
Meanwhile, in a long series of acts between 1833 and 1898, the law of procedure
and evidence was completely transformed, so that his ideal of efficient informed
justice was no longer a vision but a commonplace.
Bentham came slowly to parliamentary reform. Preoccupied with his civil and penal
codes through the 1780s, he had been indifferent to politics. But gradually he began
to see the bitter inequality between rich and poor in England. With peace the
movement for parliamentary reform grew strong. The Reform Bill of 1832 was the
first installment of democracy.

2. John Austin- Command Theory

John Austin (1790-1859) was a nineteenth century
British legal philosopher who formulated the first
systematic alternative to both natural law theories of law
and utilitarian approaches to law. (Bentham and Mill
were utilitarians, advancing the view that there should
be a separation between law and morality, and that law
should be about maximizing utility, or personal pleasure
or pain, and the effect or wisdom of a particular policy
could be calculated by adding together all the pleasure
and subtracting all the pain it brought everyone.)
Austin’s analytic approach to law offered an account of
the concept of law, that is, what law is. This was termed “Legal Positivism” because
it set out to describe “what law is” in terms of what humans posited it was, thus the
link between “positive law” and “Legal Positivism.”
Austin’s theory of law is a form of analytic jurisprudence in so far as it is concerned
with providing necessary and sufficient conditions for the existence of law that
distinguishes law from non-law in every possible world.
Austin’s particular theory of law is often called the “command theory of law” because
the concept of command lies at is core: law is the command of the sovereign,
backed by a threat of sanction in the event of non-compliance. Legality, on this
account, is determined by the source of a norm, not the merits of its substance (i.e. it
embodies a moral rule). Thus, the answer to the question “what is law?” is answered
by resort to facts not value. On Austin's view, a rule R is legally valid (i.e., is a law) in
a society S if and only if R is commanded by the sovereign in S and is backed up
with the threat of a sanction. The relevant social fact that confers validity, on Austin's
view, is promulgation by a sovereign willing to impose a sanction for noncompliance.
If what makes a rule a legal rule is not determined by its content but by its source,
then why should we obey the law under Austin’s account? Well, to avoid sanction -
since the theory of law, under this account, provides a reliable prediction of what will
befall a person, at the hands of those in charge, if you disobey the law. Not a
particularly compelling ground upon which to build a theory of why we have a duty to
obey law.
This critical review provides an analytic summary of John Austin’s The Province of
Jurisprudence Determined, focusing in particular on Lectures I and II, and concludes
by developing two critiques of Austin’s theory of law. Specifically, in the summary I
review the conceptual foundations of Austin’s command theory and the two types of
law “properly so called,” namely the general commands that men impose upon other
men to regulate their conduct, and the divine laws that are revealed either through
scripture or by applying the principle of utility to the analysis of social practice. I raise
two objections to Austin’s theory: First, that Austin fails to persuasively consider the
prospect of a conflict between divine natural law and state-sanctioned positive law,
along with the consequences of the application of the principle of utility to adjudicate
such a conflict; and second, that despite the claims to general applicability implied
throughout Austin’s framework, his conceptualization of the law remains a prisoner
of both time and place, collapsing in the face of Montesquieuian systems of
separation of powers or contemporary constitutional practices.

a. Austin’s The Province of Jurisprudence Determined

John Austin’s stated purpose in The Province of Jurisprudence Determinedis to
“distinguish positive laws (the appropriate matter of jurisprudence) from objects by
which they are connected by ties of resemblance and analogy,” namely by
determining “the essence or nature which is common to all laws that are laws
properly so called”. As such, Austin’s is a conceptual enterprise – to precise the
definition of the “law” in contradistinction to cognate concepts, and to subsequently
proclaim its study to be the province of legal analysis. To this end, Austin promotes a
command theory of law: “A law is a command which obliges a person or persons,
and obliges generally to acts or forbearances of a class” or a “course of conduct”.
Yet the law is not equivalent to any command, but constitutes a subtype of the
concept of ‘command’: only when the command “obliges generally” – usually by
possessing both ergo omnes effects (synchronic generality) and by obliging its
audience to a particular conduct into the future (diachronic generality) – rather than
in an ad hoc fashion vis-à-vis a “specific act or forbearance,” does it constitute a law.
A command, furthermore, always “expresses or intimates of the wish being
presented” by a superior to his inferiors – it, in other words, demands a theory of
sovereignty, or of legal personality. By “superior,” Austin does not understand some
form of “precedence or excellence” – but a more raw notion of domination:
“superiority signifies might: the power of affecting others with evil or pain, and of
forcing them, through fear of that evil, to fashion their conduct to one’s wishes”. This
is a highly hierarchical conception of law, which suggests the impossibility of
properly legal horizontal agreements amongst equals (say, between private parties
of equal social status) absent a superior authority sanctioning the agreement and
possessing the power to punish non-compliance.
So who, or what entity, is endowed with the authority to legally bind subordinates –
to, in Austin’s words, impose upon them an “obligation” to obey the command or
face the threat of “sanction”? First, Austin reasons that “ laws set by men to men”
are embraced within his command definition of law. In recognizing the sovereign
authority of a “monarch, or sovereign number” to lay a general command “to a
person or persons in a state of subjection to its author”, Austin follows in the
Hobbesian tradition of conceptualizing the state as possessing a corporate
personality (universitas) whose legal basis is not contingent a priori upon the
consent of its subordinates or encompassed in complying with a social contract. As
such, Austin traces the authority of a command to its apex – in the British case, to
the sovereign Parliament. It is for this reason that Austin defends judicial commands
as laws properly so called, for a “subordinate or subject judge is merely a minister.
The portion of the sovereign power which lies at his disposition is merely delegated”.
“All judge-made law,” in other words, “is the creation of the sovereign or state”. And
since judges are public officials endowed with delegated sovereign authority, when
they draw from social practices – customs – and codify them “into legal rules the
legal rules which emerge from the customs are tacit commands of the sovereign
legislature”. As a final point of clarification, note that Austin rejects the notion that
some laws merely bestow rights without any corresponding duties or obligations, for
by endowing an individual with the ability to seek out a remedy from public officials
for the violation of their rights, the law imposes a duty upon the perpetrator of the
violation to provide restitution or to face the state’s sanction, depending on the
transgression.
Second, Austin reasons that “laws set by God to his human creatures the law of
nature,” are also embraced within the command definition of law. These may either
be “revealed” via “the word of God the medium of human language uttered by God
directly, or by servants whom he sends to announce them,” or they may be
“unrevealed”. Austin devotes most of his second lecture to proclaiming the principle
of utility as the necessary conduit for unearthing unrevealed natural laws: “the
benevolence of God,” he writes, “with the principle of general utility, is our only index
or guide to his unrevealed law”. In this endeavor, Austin takes a rather empirical
approach: the object of jurisprudence is to leverage our God-given intellectual
faculties for observing individual behavior to subsequently answer the following
question: “If acts of the class were generally done, or generally forborne or omitted,
what would be the probable effect on the general happiness or good?” When the
effects would be “pernicious, we must conclude that he enjoins or forbids them, and
by a rule which probably is inflexible”. As such, the calculus promoted by Austin is
one that takes social behavior, rather than individual action, as the requisite signal to
reveal the natural law. The logic, as applied to a contemporary example, would
unfold as follows: to evaluate, say, whether homosexuality is against the natural law,
we should not apply the principle of utility to assess the proper treatment of a gay
person in a single case; rather, we should ask whether the general welfare would be
improved or depressed by endowing LGBT persons with equal treatment. If the latter
is the case, then the prohibition of homosexuality is revealed to be part of God’s law.
Two concluding points of clarification are in order. First, the principle of utility is
treated by Austin as a more consistent revealer of God’s law than “common sense,”
for “we are not gifted with that peculiar organ,” and hence we “must gather our
duties, as we can, from the tendencies of human actions with the help of a
glimmering light [the principle of utility]”. Secondly, Austin makes clear that social
norms concerning ethical principles – what Austin terms “positive morality” to
distinguish it from the “law of God” – are only “improperly but by close analogy”
related to law. This logic suggests that should the principle of utility reveal a
particular public conduct as benefitting the public welfare, then that conduct, even if
manifestly constituting a set of popular moral understandings, would latently reflect
divine natural law, and would derive its proper legal status from the latter rather than
the former.
As to what is the core nature of law, Austin's answer is that laws (“properly so
called”) are commands of a sovereign. He clarifies the concept of positive law (that
is, man-made law) by analyzing the constituent concepts of his definition, and by
distinguishing law from other concepts that are similar:
 “Commands” involve an expressed wish that something be done,
combined with a willingness and ability to impose “an evil” if that wish is
not complied with.
 Rules are general commands (applying generally to a class), as
contrasted with specific or individual commands.
 Positive law consists of those commands laid down by a sovereign (or its
agents), to be contrasted to other law-givers, like God's general
commands, and the general commands of an employer to an employee.
 The “sovereign” is defined as a person (or determinate body of persons)
who receives habitual obedience from the bulk of the population, but who
does not habitually obey any other (earthly) person or institution. Austin
thought that all independent political societies, by their nature, have a
sovereign.
 Positive law should also be contrasted with “laws by a close analogy”
(which includes positive morality, laws of honor, international law,
customary law, and constitutional law) and “laws by remote analogy” (e.g.,
the laws of physics).

b. A Critical Interjection
First, in many societies, it is hard to identify a “sovereign” in Austin's sense of the
word (a difficulty Austin himself experienced, when he was forced to describe the
British “sovereign” awkwardly as the combination of the King, the House of Lords,
and all the electors of the House of Commons). Additionally, a focus on a
“sovereign” makes it difficult to explain the continuity of legal systems: a new ruler
will not come in with the kind of “habit of obedience” that Austin sets as a criterion for
a system's rule-maker.
Secondly, one could argue that the sovereign is best understood as a constructive
metaphor: that law should be viewed as if it reflected the view of a single will (a
similar view, that law should be interpreted as if it derived from a single will, can be
found in Ronald Dworkin's work.
Thirdly, one could argue that Austin's reference to a sovereign whom others are in
the habit of obeying but who is not in the habit of obeying anyone else, captures
what a “realist” or “cynic” would call a basic fact of political life. There is, the claim
goes, entities or factions in society that are not effectively constrained, or could act
in an unconstrained way if they so chose.
As regards Austin's “command” model, it seems to fit some aspects of law poorly
(e.g., rules which grant powers to officials and to private citizens—of the latter, the
rules for making wills, trusts, and contracts are examples), while excluding other
matters (e.g., international law) which we are not inclined to exclude from the
category “law.”
More generally, it seems more distorting than enlightening to reduce all legal rules to
one type. For example, rules that empower people to make wills and contracts
perhaps can be re-characterized as part of a long chain of reasoning for eventually
imposing a sanction (Austin spoke in this context of the sanction of “nullity”) on those
who fail to comply with the relevant provisions. However, such a re-characterization
misses the basic purpose of those sorts of laws—they are arguably about granting
power and autonomy, not punishing wrongdoing.
A different criticism of Austin's command theory is that a theory which portrays law
solely in terms of power fails to distinguish rules of terror from forms of governance
sufficiently just that they are accepted as legitimate (or at least as reasons for action)
by their own citizens.
One might note that the constitutive rules that determine who the legal officials are
and what procedures must be followed in creating new legal rules, “are not
commands habitually obeyed, nor can they be expressed as habits of obedience to
persons”.
Austin characterizes the principle of utility as a searchlight to unearth God’s
unrevealed laws in the absence of public common sense, he slowly slips, by the
conclusion of the second lecture, into suggesting that the principle of utility should
underlie all lawmaking – even the positive law of the sovereign. Austin does so
when, in decrying the ill-fated attempts of the British Empire to suppress the
revolutionary spirit of its American colonies, he suggests that had the public
internalized the principle of utility then that blunder would have been avoided: “If
these and the like considerations had determined the public mind, the public would
have damned the project of taxing and coercing the colonies. For, it is only in the
ignorance of the people, and in their consequent mental imbecility, that governments
or demagogues can find the means of mischief”. Although Austin incorporates both
the divine natural law and the state’s positive laws within his command theory of law,
he fails to persuasively address the prospect of their conflict, or to consider the
consequences, both empirical and for the validity of his own theory, that would result
from applying the principle of utility to adjudicate the conflict.

Finally, the hierarchical structure of a command theory of law seems unable to

persuasively accommodate Montesquieuian systems characterized by separation of
powers, revealing the context- specificity of a theory that is instead extolled as
possessing general applicability. In a modern day constitutional structure, where
there is no apex of sovereign authority and the Weberian monopoly over the
legitimate use of force is either disaggregated or subjected to horizontal check by
cognate branches, it would appear that many laws may not strictly distill to general
commands backed by coercion. Take, for example, the US Supreme Court striking
down a federal statute passed by Congress. Here, the subject of the Court’s
‘command’, as it were, is the legislature, which stands alongside the judiciary not as
a subordinate but as a constitutional equal. One may come to Austin’s defense by
positing that he could not conceive of such an eventuality because he defines the
judicial power as delegated by the legislature, but this only serves to underscore the
context-specificity of his command theory to a constitutional structure that
concentrates sovereign authority – as in the British system of Parliamentary
sovereignty. One may then object that the Supreme Court’s ability to strike down
congressional statutes constitutes a negative power – a type of “permissive law” that
Austin explicitly highlights as an exception to his command theory. But it could be
retorted that there exist several Supreme Courts – India’s being an obvious example
– that possess the power to establish commissions and compel the legislature into
positive action.

3. Hans Kelsen - Pure theory of Law

In the history of modern legal thought, Hans
Kelsen has aroused more response–ranging
from enthusiastic acceptance to vehement
rejection, than any other jurist. He was born in
1881 in Prague. His prolific writings, spanning a
period of nearly sixty years, have been published
in 24 languages. Kelsen’s earlier work was devoted mainly to basic problems of law
and the state. In his middle and later periods, his range of interests broadened,
resulting in significant contributions to the philosophical and historical analysis both
of political ideas and systems (such as democracy, parliamentary government,
socialism, communism) and of such great political thinkers as Plato and Aristotle. A
student of religion and theology, Kelsen also examined some key conceptions of the
state and of justice and natural law in the light of the Old and New Testaments. His
investigations were related to his persistent interest in the structure of the
norm—above all, the legal norm, but also of the ethical and moral norm.
Kelsen attempted to construct a theory of law along Kantian lines which would
enable legal science to come to grips with legal phenomena. However, whereas
Kant confined his critical epistemology to natural science (treating law in his
Metaphysics of Ethics), Kelsen sought to supplement Kant by constructing a
normative epistemology, defining the nature and structure of the legal order and of a
critical legal science.
Kelsen showed in his juristic analysis that traditional concepts like state, person, and
similar substantive terms are nothing but reifications or personifications of
relationships. The traditional problems of the relations between state and law, for
example, are, according to Kelsen, insoluble because they are based on the false
dualism of state and law: since state and (national) law are identical, the relations
between them cannot be a subject of discussion. Likewise, the traditional problems
of physical versus moral (or legal) person (such as the corporation) are based on the
opposite false assumption of the identity of “person” in the physical-biological sense
and “person” in the legal sense. Since, for Kelsen, “person” in the legal sense is
nothing more than the sum total of legal rights and duties regulating human
behavior, it makes no conceptual difference whether such legal norms define the
behavior of one physical person or of many. The term “person” in the law thus never
connotes a particular physical person but is merely a substantive reification or
metaphorical personification of a complex of norms.

a. Definition of law
In defining the meaning of law, Kelsen attempted to determine whether there is any
element common to all legal systems at all times and places and at every level of
cultural development. In his search for a conception of law that is based on scientific
universality rather than on political particularism, Kelsen defined law in its most
general meaning as an “ordering of human behavior”, as a “specific technique of
social organization”. He emphasized the how (the function of law)—which can be
universally valid, rather than the what (or contents of the law)—which cannot be so
valid. However, other systems of norms (such as morality and religion) also seek to
regulate human behavior. Therefore, Kelsen identified a specific characteristic of the
legal method of ordering human behavior that both morality and religion lack: the
element of physical force. Law is thus a coercive order of human behavior. Such an
order can be (in its political orientation) liberal or totalitarian, capitalist or collectivist,
but it is a legal order if it is a coercive order of human behavior. Kelsen, in his
definition of law, thus dispensed with the traditional elements of justice, reason, or
morality that so frequently were attached to the definitions of law as “the voice of
reason” (Aristotle, the Stoics) or as an “ordinance of reason for the common good”
(Thomas Aquinas).

b. The legal norm

The constitutive element of law as a coercive social order is the “norm,” or the rule
that some-body ought to act in a prescribed way. In Kelsen’s conception, legal
norms always belong to the realm of the “ought,” although linguistically this may
sometimes be hidden, such as in the phrasing of a criminal statute that a thief “will”
be punished in such and such a way. Yet this linguistic inexactitude does not
conceal the fact that the statutory legislator “is no prophet” and is not predicting
events but prescribing what ought to happen in a predetermined situation, such as
theft. Kelsen stressed that the “ought” in the norm created by the legislator or in the
legal rule has no ethical, moral, or natural law connotations, but is merely a
“functional connection” or “mode of thinking”. Following Kant and the Neo-Kantians,
he sharply distinguished the causal from the normative connection between two sets
of facts or actions. The causal connection (whether in the physical or social sphere)
is expressed in the formula: “If A, then B.” In the normative connection, the formula
runs: “If A, then B shall be.” From the fact that something will be, one cannot
logically deduce that it shall be, nor can one deduce from the fact that something
shall be that it actually will be. He held that the modal, logical categories of the “is”
and the “ought” are not susceptible of further definition or simplification, since they
are basic categories of our mind. However, this axiomatic character of the “ought”
applies only to its functional aspect; the content of the “ought,” that is, the content of
a specific legal order, cannot be directly perceived or rationally discovered, since it is
the result of acts of will.
The structure of the legal norm clearly shows its difference from the moral norm. A
moral norm might run thus: “Thou shalt not steal” but, because the moral order is not
a coercive order, it does not attach a punitive consequence to the act of stealing. By
contrast, the structure of the legal norm (regardless of its linguistic expression) runs
thus: “If a person steals, he ought to be punished by the competent organ or agent
of the state.” The illegal act (crime or tort) is called by Kelsen the “delict” the
consequence threatened by the norm in its second half is called the “sanction.” In
Kelsen’s ingenious conception of the structure of the norm, the legal order is
concerned not with human behavior that is in accord with the law but with behavior
that is in opposition to it. The “ought” in the legal norm refers to the sanction to be
applied to contra-legal behavior to the action prescribed for the state authority by the
sanction. The contra-legal (illegal or unlawful) behavior the first structural half of the
norm, is but a condition for the sanction.
By viewing unlawful behavior, the delict, as the condition of the sanction, Kelsen
attained a double objective of analysis. First, he removed the last traces of natural
law or ethical criteria from the concept of positive law, since legally prescribed or
permitted behavior is no longer posited or prescribed by the law as a positive
command (in the sense in which this is done in morality or religion). Instead, legal
behavior is “downgraded,” as it were, to the mere logical level of a condition; the
behavior which according to the legal norm (of national law) ought to follow is the
sanction of the state authority. Second, Kelsen’s structuring of the norm also
enabled him to solve the problem, or apparent problem, of how a norm can be said
to be valid in case of illegal behavior. “The delict,” Kelsen wrote, “is neither a
violation nor a negation of the law. It is conduct determined by the law as a condition
of the sanction, likewise determined by the law”. For this reason, Kelsen also
objected to the usual formulation according to which a sanction is attached to certain
types of human behavior because it is a delict. The more accurate way would be to
reverse this formulation: a certain type of human behavior is a delict because a
sanction is attached to it. “There is no delict in itself”.

c. Imputation
The relationship between the elements of the legal norm, delict and sanction is
called by Kelsen “imputation” (Zurechnung). Where as in non-normative propositions
(if A, then B) the principle of connection between A and B is causality, in the legal
norm (if A, then B ought to be) it cannot be causality, since in actual fact A is not
always followed by B (such as when a thief escapes legal punishment), or B may
take place although A did not occur (such as when a sanction is imposed for an act
which in fact did not happen and a person is punished for a crime he did not
commit). Imputation thus does not connote the relation of a person and his action,
but the relation between the sanction and that action.
Kelsen rejected the widespread view that man is subject to a moral or legal order
because his free will enables him to break the chain of causality and establish a new
chain of conduct. According to this hypothesis, man’s will is not the result of other
causes, but only a cause, which brings forth effects. Therefore, so this widespread
view holds, if man fails to exercise his free will and to choose the right course of
action, he is responsible for the moral disapproval or legal sanction attached to his
morally wrong or legally delinquent conduct. Kelsen rejected this hypothesis of free
will on the ground that every human action is causally determined, although our
methods of knowing may not always be refined enough to ascertain the causes.
Moreover, Kelsen pointed to the fact that the very establishment of a legal order
influencing and regulating human behavior presupposes that human conduct is
causally determinable, that is, not free. The function of the legal order (as of any
normative order) is to induce men to be motivated by ideas and perceptions in
accord with the conduct prescribed by the legal (or moral) order. If the legal order
fulfills this function, men then “will” to do what they legally ought to do, and their so
willing serves as a cause of their actions in harmony with the law. The legal order
(like any normative system) is thus based on the supposition not of free will, that is,
causal non-determinacy, but of causal determinacy.

d. Validity
The validity of the norm is most conspicuous in the case of illegal conduct. In a theft,
for example, the norm against stealing does not lose its validity because the act of
stealing has occurred, and the judge is required to apply the sanction against the
delict. But even if the thief escapes and no judicial sanction can be prescribed, the
norm still retains its validity. The validity of a norm thus does not imply that the
conduct it prescribes is always followed but only that it has binding force. To know
whether a specific norm is valid, we must therefore inquire in what way that norm is
derived from other norms, since an “ought” can only be derived from another
“ought.” Thus, the individual norm invoked by a judge against a thief is considered
legal if it can be derived from a general statute prescribing sanctions against the
delict of theft. If we ask why the general statute is legal, we find that it, in turn, can
be derived from the legal authority of the legislative body. The legal validity of the
body must again be derived from a norm: we find that under the constitution, the
legislative body is authorized to make such general norms. In trying to discover the
validity of the constitution, we find that it cannot be derived from any higher legal
source since it is itself the highest legal source from which all other (lower) norms
are derived. If the validity of the highest legal norm cannot be derived from another
legal norm, it can only be derived from a non-legal norm, or “basic” norm,” as Kelsen
called it. This basic norm is pre-supposed to be valid but is not itself a norm of
positive law. In brief form, the basic norm prescribes that conduct ought to be in
accord with the constitution. Without such a presupposed norm conferring validity
upon the constitution, the latter would have no legal character and the norms below
the constitution–legislative, judicial, and executive–would have no legal character
either, since a norm can be derived only from another norm.
 e. The Grundnorm
The basic norm (Grundnorm) thus supplies the legal order with a principle of unity. It
makes it possible to consider a human act as legally binding if it can be integrated
into an entire system of norms, ultimately deriving its validity from the presupposed
basic norm. However, although the basic norm is presupposed, it is not arbitrarily
presupposed, for the legal order upon which the basic norm confers validity must on
the whole be effective, although individual conduct may be contrary to the law.
Kelsen applied here the principle of “cognitive economy.” According to this principle,
physical laws are constructed under the postulate that the largest number of facts be
explained by the simplest possible formula. Similarly, in the normative sphere, that
basic norm should be presupposed according to which the largest number of
behavioral phenomena can be subsumed under the legal order that seeks to
regulate them.
The concept of the basic norm led Kelsen to the dynamic view of the law as
hierarchically held together.

f. Limits of legal analysis

From the very beginning, Kelsen sought to demarcate his “pure theory of law”
against two areas into which legal analysis has frequently been drawn: psychology
and sociology on the one hand and ethics and politics on the other. Initially he
rejected the possibility of a sociology (or psychology) of law, if law is to be conceived
as a normative order. He later conceded that a sociology of law is possible, if the
object of such inquiry is the “is” rather than the “ought.” The sociologist, for example,
can legitimately investigate what social or economic motives or interests have
induced a legislative body to pass a particular law, what motives induce persons to
adapt their behavior to legal norms, or what social pressures or influences are
behind judicial decisions. But, Kelsen argued, all such sociological and psychological
analyses deal with causal phenomena parallel to the law, not with the law itself as a
normative system.
The defense of legal analysis against the intrusion of ethical and political criteria
appeared to Kelsen, particularly in the middle and later phases of his intellectual
development, even more important than the defense against the intrusions of
sociological methods into legal theory. The degradation of social science in the
totalitarian systems of communist and fascist states strengthened Kelsen’s
conviction that scientific investigation must be kept free from political intrusion in the
form of particular value preferences, natural-law doctrines, conservative
rationalizations, or revolutionary challenges of positive law. The theoretician or
analyst of the social or legal order is not a social authority. His task is to understand
society, but not to remake it politically. Analysis of the law–as of any other social
institution–belongs to the realm of rational cognition, not to irrational political will.
Rational cognition cannot, Kelsen argued, solve the problem of conflicting values,
since values are subjective, based on emotional rather than cognitive factors. In
numerous writings on natural law, Kelsen insisted that neither a rationalistic nor a
metaphysical-religious natural-law doctrine has ever been able to formulate absolute
values or universally valid principles of justice on which general agreement can be
attained. Social progress, Kelsen held, consists in making the idea of justice relative:
peace through compromise of conflicts of interest and of the values such conflicts
reflect. Whereas absolute justice is impossible and its pursuit, if persistent, must
result in great sacrifices of human dignity and even of human life, the relative justice
of social (and international) peace is attainable and, if practiced, is socially less
costly in terms of human life and dignity.
The position of philosophical relativism–both in the theory of knowledge and the
theory of values –has often led to the charge that relativism is amoral or immoral,
since it denies the possibility of demonstrating absolute standards of truth or value.
Kelsen categorically rejected this charge in his farewell lecture, “What Is Justice?”
given on his retirement in 1952, from the University of California, at which institution
he concluded his formal career as a teacher. Relativism, Kelsen held, does not claim
that there are no values but only that there are no absolute values, no one valid
system. Relativism thus compels the individual to make his own choice between
competing systems of values and prevents him from delegating his moral
responsibility to a superior authority, be it religious or political. “The fear of personal
responsibility is one of the strongest motives of the passionate resistance against
relativism. Relativism is rejected and–what is worse–misinterpreted, not because it
morally requires too little, but because it requires too much”. However, while Kelsen
admitted he could not provide an answer that is absolutely true to the question
“What is justice?” he did not hesitate to answer this question from his own viewpoint
as a scientist. “Since science is my profession, and hence the most important thing
in my life, justice, to me, is that social order under whose protection the search for
truth can prosper. ‘My’ justice, then, is the justice of freedom, the justice of peace,
the justice of democracy–the justice of tolerance”.
Kelsen’s anti-metaphysical position in his theory of knowledge as applied to his legal
theory, combined with his relativistic, liberal value orientation in his political views,
thus places him in the great tradition of modern thought that is identified with John
Locke, David Hume, Immanuel Kant, and Bertrand Russell. The social sciences
have, since the middle of this century, been engaged in a renewed effort to shed
ideology as incompatible with science, since ideology is ideas in the service of
interest rather than cognition. In his tireless struggle against the subservience of
legal and political science to ideological, political interests Kelsen has made a lasting
contribution to the growing process of establishing the social sciences as bodies of
cognitive knowledge rather than as tools of political or ideological manipulation.

4. Hart's Concept of Law: Primary and Secondary Rules

In The Philosophy of Law: An Introduction to
Jurisprudence, Jeffrie G. Murphy and Jules L.
Coleman refer to Hart's The Concept of Law
(1961), as being "universally regarded as the most
significant contribution to legal philosophy of the
20th century. Hart gives the theory of legal
positivism the most systematic and powerful
statement it has ever received and is ever likely to
receive." In The Concept of Law, Hart argued that
Austin laid a foundation for an excellent theory of
law by delineating between laws and morals but
erred in viewing law as a weapon of a large bully
who demands compliance by force.
Hart argued that a legal system is not a compilation of individual laws, but rather a
union of primary and secondary rules. Primary rules impose an obligation: what a
citizen can or cannot do. Secondary laws define specifics of the primary rules. To
exemplify his theory, Hart asked his readers to imagine a pre-legal society, that is,
one that lacked laws, and then imagine the types of problems that might plague such
a society. To make changes to eliminate these pathologies would be to make laws.
The legal system is then, simply defined, those changes prescribed by a society to
cure social problems.
Hart noted that even a pre-legal society would follow social norms. Even if there
were no specific law against it, walking around naked in most societies would be
considered outside the range of acceptable social behavior. Hart called these
primary rules: rules directed to all individuals in a given society that impose
obligations. Unlike Austin, who suggested that such rules are followed in order to
avoid punishment, Hart argued that a primary rule imposes obligation because it
sets a standard for criticism or justification within the society.
A society formed around primary rules alone, Hart acknowledged, would suffer from
difficulties. First, uncertainty would arise concerning what the rules are, how rules
are applied, and what to do if rules conflict. Second, primary rules are static and do
not change as the social, economic, and political environment changes. Third,
primary rules alone are inefficient because there is no systematically prescribed
recourse for when there is conflict over the rules or the rules are broken. In response
to these apparent difficulties, Hart suggested the addition of secondary rules, or
rules about rules, as he noted in The Concept of Law: "They specify the ways in
which the primary rules may be conclusively ascertained, introduced, eliminated,
varied, and the fact of their violation conclusively determined." According to Hart,
three basic secondary rules exist: rules of recognition, rules of change, and rules of
adjudication. They are laws that establish the authoritative structure by which
primary laws are defined and enacted.
Hart maintained that a legal system must be approached from an internal viewpoint.
As a participant within the system, an observer brings an assumption that the law
ought to be obeyed. In The Legal Philosophy of H.L.A. Hart, Michael Martin
discusses Hart's theory of internalization: "Social actors can view their own behavior
in different ways: they can accept the rules of a system and use them to guide their
actions and to evaluate the actions of others or they can follow the rules without
accepting them. Hart maintains that to have a legal system at least the officials of
the system must take the internal point of view: they must accept the rules of the
system and evaluate others' actions in terms of them."
The Concept of Law became the yardstick by which both Hart's supporters and
detractors were measured. As McCormick noted, "It is a work of international
eminence which even its strongest critics have acknowledged as a masterpiece
worth at least the compliment of careful refutation."
The Concept of Law was not Hart's only important book. In 1959 he published
Causation in the Law, co-authored by A.M. Honore, which examined questions of
causality in matters of civil and criminal liability. Hart and Honore argued for a
definition of cause that employed common, everyday language, which is
fundamental to basic understanding of what is fair and just in punishment or
compensation.
In Law, Liberty, and Morality, published in 1963, Hart set forth an argument against
legal moralism. He argued that laws and morals are not related by necessity. In
1965 he published The Morality of Criminal Law, in which he laid out a defense of
the limits of law in regulating moral behavior. Punishment and Responsibility: Essays
in the Philosophy of Law followed in 1968. In it, Hart offered a complex theory of
punishment that combines elements of both retribution and utility.
As Dworkin points out in his essay "The Model of Rules," Hart's positivism is "more
complex" than Austin's. Hart's version also avoids some to the problems of Austin's
version by doing away with the idea of a commander, someone who issues orders or
commands to a people who then obey. One repeated criticism of Austin's legal
positivism was its side-stepping of the issue of what Lon Fuller called ‘the fidelity to
law.’ People generally show respect for the law or exhibit a sense of obligation to
adhere to this or that legal statute because they believe it (the statute) to be
authoritative in some way. They do not adhere to the statute merely because it was
promulgated by some super-powerful "other" who threatens them with punishment
and has the wherewithal to carry it out. Austin's account fails to capture this "feature"
of law, although in his defense he might well argue that to insist on the
authoritativeness of this or that statute is only a way of smuggling morality back into
the concept of law which is best understood in value neutral terms. Here the debate
comes down to what we happen to believe is or is not essential to the law, what we
suspect intuitively are its central ingredients. But critics of Austin have been eager to
point out that "there is a difference between a valid law and the orders of a gunmen."
(Dworkin) Hart meets this criticism of the positivist approach to law by refining the
notion of a rule, basing that notion on two different ways in which a rule may carry
weight, i.e. have authority. A rule may become authoritative by (1) because a people
come to accept the rule as a standard for their conduct. It is not often that they follow
the rule, no matter, how regularly and consistently. For example, most Americans
get up in the morning and go to sleep at night, but they do not make it a rule in that
sense that they regard this rule as binding on their behavior. Nor would they appeal
to this practice as a justification for their behavior or a reason for criticizing other
people's behavior who fail to obey it. A rule may also (2) become authoritative by
being enacted according to some set of secondary rules, which specify the
procedures that persons must follow to bring a rule into being. Hart calls the first set
of rules primary rules and the second set secondary According to Hart traditional
societies, tribes and clans often have primary rules without secondary ones. These
societies, he argues, cannot, strictly speaking, be said to have a legal system. A
legal system comes into being with the addition of secondary rules. Hart also refers
to these secondary rules as "rules of recognition."

b. Hart's "Rules" and Dworkin's "Principles"

Dworkin argues that Hart's analysis is incomplete since it fails to take note of the
principles upon which judges rely to make their decisions, principle that are not
readily captured by Hart's notion of primary or secondary rules. Lawyers and judges
make use of principles that do not function as rules and when they do, they are not
relying on something "outside" or "beyond" the law. Dworkin clarifies the distinction
between rules and principles by analyzing the judgments in two cases: Riggs v.
Palmer (1889) and Henningsen v. Bloomfield Motors, Inc. (1960). In Riggs, Dworkin
argues the court relied on the principle that "no one should profit from his or her own
wrongdoing" and in Henningsen on the principle that "in a society such as ours the
automobile manufacturer is under a special obligation in connection with the
construction, promotion, and sale of his cars." Dworkin believes that the standards
set out in these cases and to which the judges ultimately appeal are not the sorts of
things we think of as legal rules: "They seem very different from propositions like
'The maximum legal speed on the turnpike is sixty miles an hour' or 'A will is invalid
unless it is signed by three witnesses.' Rules operate in an all-or-nothing fashion.
But this is not the way principles operate. Now principles can be treated in two
different ways in the context of legal obligation. "We might," as Dworkin argues,
"treat legal principles the way we treat legal rules and say that some principles are
binding as law and must be taken into account by judges and lawyers who make
decisions of legal obligation." The "law" then (what the law is) would include both
rules and principles. Or, as Dworkin says, "we might deny that principles can be
binding the way some rules are. We would then say that in cases like Riggs v.
Palmer, the judge reaches beyond the rules that he is bound to apply (reaches, that
is, beyond the 'law') for extralegal principles." Which view we adopt is not, not just, a
matter of convenience. The view we adopt will have serious consequences on how
we think of judicial activism, discretion, democracy, and legal obligation.

c. Dworkin's "Third" Theory of Law

One of Dworkin's main concerns has been to develop and defend a theory of
interpretation, of adjudication, to offer an account of how courts (and judges) not
only do decide hard cases but how they ought to decide hard cases, i.e., those
cases in which the settled rules run out or in which no settled rule applies. It is also
this concern that fuels Dworkin's critique of Hart. His key insight is his perception
that when judges reason about hard cases, they appeal to principles and standards
other than positivistic rules, i.e., those rules that are identifiable by virtue of their
pedigree, by how they came about as specified by some set of secondary rules or
"rules of recognition." Unlike legal rules, principles have no discernable "pedigree" in
Hart's sense. Principles function as a reason in favor of a particular decision, but do
not compel a result in the way a rule does. Also unlike a legal rule in Hart's sense, a
principle, such as the principle to which the court referred in Riggs, can, according to
Dworkin, remain a principle even though it may not always be followed. Principles,
too, frequently give expression to background rights held by one of the parties to a
dispute, and such rights frequently "trump" or take priority over other considerations.
Are principles a part of the law or do they stand outside of it? Hart's theory, Dworkin
argues, must treat principles as standing outside the law, as extra-legal standards to
which judges may sometimes appeal, but if they do, judges are then no longer
bound by any legal authority; they are acting outside the law.

4. Separation of Law and Morals

a. Hart – Devlin Debate
The Wolfenden Committee headed by Sir John Wolfenden investigated the issue of
legalizing of homosexuality and prostitution. The Report claimed that it is not the
duty of the law to concern itself with immorality. Professor Hart, and Lord Devlin
contributed to the debate.
It was argued that homosexuality should be decriminalized on the basis of:
 Freedom of choice

 Privacy of morality

Devlin’s Stand: Law without morality, said Devlin “… destroys freedom of

conscience and is the paved road to tyranny”. He appealed to the idea of society's
"moral fabric." He argued that the criminal law must respect and reinforce the moral
norms of society in order to keep social order from unraveling."Societies disintegrate
from within more frequently than they are broken up by external pressures. There is
disintegration when no common morality is observed and history shows that the
loosening of moral bonds is often the first stage of disintegration, so that society is
justified in taking the same steps to preserve its moral code as it does to preserve its
government... the suppression of vice is as much the law's business as the
suppression of subversive activities."

Devlin’s view was that any category of behaviour was capable of posing a threat to
social cohesion. Therefore, morals laws are justified to protect society against the
disintegrating effects of actions that undermine the morality of a society. This social
cohesion argument, i.e. the notion of a shared morality was necessary for the
survival of society. However, what is not clear is what “society” is and whether
society's views are always correct.(Margaret Thatcher once declared, "There's no
such thing as society, there are individual men and women and there are families.")
Devlin argued that immorality is what every right-minded person considered
immoral. Devlin argued that there could be no theoretical limit to the reach of law; no
acts are “none of the laws business”.

Devlin suggested that the common morality could be discerned by asking "What is
acceptable to the ordinary man, the man in the jury box, who might also be called
the reasonable man or the right minded man". Devlin chose the man in the jury box
because;a) The verdict of a jury (twelve men and women) must be unanimous (at
the time he was writing) b) The jury will only reach its verdict after the issue has
been fully examined and deliberated. c) The jury box is the place where the ordinary
person's conception of morality is enforced. He argued that - Privacy should be
respected. Law should only intervene when society won't tolerate certain behaviour.
Law should prescribe a minimum standard not a maximum standard.
Hart’s Position: Hart warned against the dangers of “populism”. Why should the
conventional morality of a few members of the population be justification for
preventing people doing what they want? This is based on the theory that most
people's views are coloured by superstition and prejudice.

Hart reiterated Mill's "harm principle", Hart pointed out that societies survive changes
in basic moral views. It is absurd to suppose that when such a change occurs, to say
one society has disintegrated and been succeeded by another.

Both Hart and Devlin raise important issues. Devlin's view is pragmatic and focused
on the majority rule. Hart’s is more humanistic and individual.

Dworkin suggests that we should abandon the Hart-Devlin debate and concentrate
of Liberties. If behaviour is a Basic Liberty (like sex), this should never be taken
away, even if someone has a different way of 'doing' sex. [R vs. Brown (The
Spanner Case) wherein the question before the Court was - "Where A wounds or
assaults B occasioning him actual bodily harm in the course of a sado-masochistic
encounter, does the prosecution have to prove lack of consent on the part of B
before they can establish A's guilt under section 20 or section 47 of the Offences
against the Person Act 1861? Held – Consent cannot be a defence to such
offences.]General liberties could be restricted if they cause harm. But, it is not clear
how you tell the difference between a basic and a general liberty?

b. Hart - Fuller Debate

A woman in order to avenge her personal grudge against

her husband informed of his disliking of Nazis to the Nazi
authorities. After the Nazi government was overthrown the
husband pressed a charge against his wife for illegally
depriving him of his liberty. The wife defended her act on
grounds of its legality as under Nazi rule passed by
competent legislature and with her being an obligation to
follow the law. Court held wife guilty and found that the
statute under which husband was found guilty was contrary
to the sound conscience and sense of justice of all decent
human beings.

Hart being a positivist criticized the judgment for disregarding the written law. He
argued that the law remains law even if it does not meet the demands of external
moral criteria. He said ‘Law is not morality; do not let it supplant morality’. Hart said
that an inherently evil law and one’ reaction to the law are two separate issues.
Merely because a law’s foundation is on evil it cannot be said to be not a law. Hart
also stated that if wicked/immoral laws are considered valid and that does not create
any problem then a choice between two evils has to be made in extreme
circumstances. Hart said that a legal system might show some conformity with
justice or morality. But it does not follow that a rule of recognition a criterion of legal
validity ought to include morality in it. Law and morality are not interchangeable
terms and law cannot be struck down merely because it’s devoid of any moral
content.

Fuller stated that law must possess certain characteristics if it is to be classified

correctly as ‘law’ and one of most important of such characteristic is ‘inner morality’.
For Fuller if law contains no morality it is not law.

He also criticized Hart for ignoring the inherent inability of Nazis to be considered as
a legal system. He then criticizes positivism itself and states that the fundamental
proposition that law must be separate from morality is incorrect as it denies the
possibility of any bridge between the obligation to obey law and other moral
obligations. Fuller considered law to be a collaborative effort to aid in the satisfying
of mankind’s common needs with each rule of law having a purpose related to the
realization of a value of the legal order. Since, purpose and values are closely
related a purpose may be considered as a fact and a standard for judging facts and
thereby, removing the dualism between ‘is’ and ‘ought’. Fuller considered that any
regime that assists in the spread of, injustice has forfeited its right to expect
allegiance from its citizens.

While Professor Fuller’s proposition is an extension of natural law, that of Professor

Hart has its roots in the Austinian Theory of Positivism. Interestingly, however,
Professor Hart deviates from his stated position and bats for minimum content of
morality in law but maintains steadfastly that law is not derived from moral principles
and that there is no essential conceptual link between the legal and moral. Professor
Fuller, in his stead, claims that this is a common meeting ground between the two
extreme ideologies.

5. Dividing line between natural law theory and legal positivism

To summarize, briefly and a bit crudely, natural law theory considers the connections
between the universe, human nature, and morality, usually deriving the last from
some combination of the first two. The majority position within the natural law
tradition appears to be that moral truths are to be derived from truths about human
nature. A minority position in the tradition, represented by, among others, Finnis, is
that moral truths are to be discovered or derived in other ways (though these truths
are connected with truths about human nature, they are not derived from such
truths). The difference can be crucial for those attempting to avoid an allegedly
improper derivation of an "ought" from an "is." Natural law theory discussions of
human positive law tend to focus on moral obligations: what laws should a (good)
legislator pass, and when does a (good) citizen have a moral obligation to obey the
law.

Legal positivism is the belief that it is both tenable and valuable to offer a purely
conceptual and/or purely descriptive theory of law, which the analysis of law is kept
strictly separate from its evaluation. Modem legal positivism developed in reaction to
certain (less sophisticated) versions of natural law theory. John Austin was reacting
to some clumsy natural law references in the work of Sir William Blackstone when
he wrote what has become perhaps the most frequently cited summary of legal
positivistic "dogma" – “The existence of law is one thing; its merit or demerit is
another. 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 approbation and disapprobation.”

In a recent provocative essay, Finnis concedes that there were some basic truths to
legal positivism, but most of them had been articulated, at least in rough form,
hundreds of years ago by a theorist best known for his development of natural law
theory: Thomas Aquinas. Finnis attributes to Aquinas the move "of taking human
positive law as a subject of consideration in its own right (and its own name), a topic
readily identifiable and identified prior to any question about its relation to morality.
For Finnis, as for Aquinas, positive law has a role within moral thought and moral
practice. Positive law (at least generally just positive law) plays a crucial role in
achieving social/common goods that require the deployment of state power (for
example, sanctions for criminal behavior) or the coordination of citizen action.

There appears to be a sense in which (an important and well- traveled branch of)
natural law theory and legal positivism are compatible, in the sense that one's
position on the first does not determine one's position on the second. If what makes
one a natural law theorist is adherence to a certain kind of metaphysical realism
about morality - natural law theorists seem to agree that moral realism is an
important component of the tradition, but disagree on the extent to which the
tradition requires other significant commitments' - at meta-ethical belief (moral
realism) seems to be consistent with a variety of views about the (conceptual)
connection between law and morality.
Similarly, if - (1) natural law theory reduces to the claim that there is objective moral
truth, and that this truth should be used to evaluate our political and legal institutions
as well as our individual choices, and (2) legal positivism reduces to the claim that
there is a possibility of and value to a descriptive or conceptual theory of law
separated from any evaluation of its (moral) merits, then there would seem no
reason why one could not support or advocate both. Indeed, a number of prominent
legal positivists and natural law theorists have so claimed at one time or another.
One can find theorists who suggest that legal positivism entails opposing natural
law's views on the existence of (objective) moral truths, but such theorists are
distinctly in the minority.

Legal positivists usually present their dogma about the separation of law and
morality in terms of separating the attribution of legality or legal validity from
evaluation of (the legal rules' or legal system's) moral worth. This view of legal
positivism, and of its difference from natural law theory, is connected to an equation
(mostly by non-natural law lawyers) of natural law theory with the phrase, "lex iniusta
non est lex”- "an unjust law is not a law." Finnis wants to transform our discussions
of legal positivism and the separation of law and morals. He urges that natural law
theorists have never denied a disjunction between positive law and moral merit and
that lex iniusta, properly understood, never claimed the contrary.

It used to be commonly believed that the disagreement between natural law theory
and legal positivism was about the legal or moral validity of unjust official actions.
Contemporary theorists in both camps have shown that this topic is in fact one in
which agreement, rather than disagreement, predominates. Finnis has been active
in this clarification. He has also been an important figure in discerning where the true
dispute lies between natural law theory and legal positivism: he challenges the
viability and value of descriptive or conceptual theories of law that do not partake of
moral evaluation. Finnis has developed the argument that law can only be
understood in a moral-based teleological analysis. This is a substantial challenge,
one that hits at the core of legal positivism, and it will be interesting to see what
responses legal positivism can offer. The response may come at a meta-theoretical
level, grounded in statements about the different purposes of natural law and legal
positivist theorizing and the different status of the claims being made.