Hart, "Positivism and the Separation of Law and Morals"

HLA Hart, “Positivism and the Separation of Law and Morals,” Harvard Law Review 71(4), Feb 1958.

"[I]n spite of all that has been learned and experienced since the Utilitarians wrote, and in spite of the defects of other parts of their doctrine, their protest against the confusion of what is and what ought to be law has a moral as well as an intellectual value."
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The “Utilitarian” distinction:

law as it is vs. law as it ought to be
law as it is vs. (true) moral principles
law as it is vs. (endorsed) moral principles
law as it is vs. law as it ought to be according to a particular standard

Bentham and Austin emphasized the Utilitarian distinction out of concern that, otherwise, we may mistakenly infer from a rule’s violation of morality that it is not a rule of law, or we may mistakenly infer from the fact that a rule is morally desirable that it is a rule of law.

Criticisms & Responses:

I. The “Realists” Criticism:

Legal rules always leave a certain set of cases unclear (e.g. does a rule forbidding “vehicles” in the park forbid skateboards, bicycles, airplanes?)—these cases are “problems of the penumbra.”

Penumbral cases cannot be settled deductively; so rational decisions regarding penumbral cases require judgment that goes beyond deductive reasoning—e.g. to reasoning about how the law should be. Theories or judges who fail to acknowledge this are guilty of “formalism” or “literalism.”

The standards we must appeal to in order to avoid formalism should themselves be considered as part of the law “in some suitably wide sense of ‘law’.”

Thus, legal rules, or their application, cannot be held apart from moral standards.

Response:

The standards we appeal to in order to avoid formalism are not necessarily moral standards.

And, furthermore, we should not lump these standards are part of the legal rule they are used to apply because (1) it’s not necessary to make sense of how we deal with penumbral cases and, (2) to do so is basically to turn all legal questions into penumbral questions. [?]

II. The Reformed Nazi’s Criticism (Radbruch):

Positivism contributed to the evils perpetrated by the Nazi regime and the failure of the German legal system to protest them. Every judge and lawyer should denounce “statutes that transgressed the fundamental principles not as merely immoral or wrong but as having no legal character.”

Response:

It’s naïve to think that positivism is at the root of insensitivity to morality and subservience to state power.

Furthermore, rejecting positivism leaves us in the position where we have to condemn someone who performed evil sanctioned by evil law by holding that she *ought* not have done what the law sanctioned and therefore she was *legally* forbid from doing what the law sanctioned—she broke the true laws even though they weren’t the existing laws at the time, and the existing laws at the time were not binding or authoritative.

This is repugnant, and we should instead own up to the fact that punishing this woman is the lesser of two evils: namely, creating retroactive/retrospective law rather than allowing a heinous though originally legal deed to go unpunished.

“The vice of this use of the principle that, at certain limiting points, what is utterly immoral cannot be law or lawful is that it will serve to cloak the true nature of the problems with which we are faced and will encourage the romantic optimism that all the values we cherish ultimately will fit into a single system, that no one of them has to be sacrificed or compromised to accommodate another … If with the Utilitarians we speak plainly, we say that laws may be law but too evil to be obeyed … *When we have the able resources of plain speech we must not present the moral criticism of institutions as propositions of a disputable philosophy*.” (emphasis added)

III. Re: the Applicability of the Utilitarian Distinction to An Entire Legal System

What provisions in a legal system are “necessary”, and in what way?

1) Those provisions that are necessary to supporting our survival (e.g. forbidding the use of free violence and minimal property rights) are “naturally” necessary.

Other purposes that people have in living in society are “too conflicting and varying” to be the basis of other naturally necessary provisions in a system of law.

2) The other essential element of a legal system regards its administration in treating like case alike.

But both of these “necessary provisions” are consistent with an immoral system of law, so do not undermine or challenge the applicability of the Utilitarian Distinction to entire legal systems.