The command theory's black and white distinction between law and moralty - a weekness in legal positivism generally?

On closer inspection, however, it becomes clear that Hart’s views are different from those of Austin. In fact, Hart critiqued almost every aspect of Austin’s theory. He believes that the coercive expression of political power, implicit within the theory, fails to sufficiently account for the character of law as a social, obligation-imposing, phenomenon. Many others have criticised Austin’s command model, to the extent that “there are few, if any, at the present day, who regard him as either wholly successful in this undertaking or as being altogether clear-minded in his basic aims”. It is clear evidence that Austin’s so called “black and white distinction” between law and morality is not a universally accepted standard of positivist views.

Indeed, Hart’s work clearly illustrates that morality and law are not, in the scope of modern positivism, two entirely independent entities. In his expression of the goal of his theory, Hart said that it was his aim to obtain:

“a better understanding of the resemblances and differences between law, coercion, and morality, as types of social phenomena”.

In 1958, Hart discussed this subject in his article, Positivism and the Separation of Law and Morals. It was billed as a consideration of “the merits of the distinction” between “the law that is from the law that ought to be” (introduced above). As Hart explains, “Bentham and Austin constantly insisted on the need to distinguish, firmly and with the maximum of clarity, law as it is from law as it ought to be”. He criticises this, saying that “this theme haunts their work”, and notes that “at the present time… this separation between law and morals is held to be superficial and wrong”.

In development of this principle, Hart submits his idea of the “minimum content of natural law”. He argues:

“without such a content laws and morals could not forward the minimum purpose of survival which men have in associating with each other. In the absence of this content men, as they are, would have no reason for obeying voluntarily any rules; and without a minimum of co-operation given voluntarily by those who find that it is in their interest to submit to and maintain the rules, coercion of others who would not voluntarily conform would be impossible”.

It is Hart’s belief, therefore, that some reference to morality is required when describing law, which thereby disproves the supposition that positivism creates a black-and-white distinction between law and morality. Subscribers to natural law theory, however, continue to maintain that a more significant moral evaluation is required in describing law and legal validity. The present natural law doctrine considers morality to be a matter of the internal structure of the legal system, whereby immoral rules are treated as inadmissible. In the article Positivism and Fidelity to Law – A Reply to Professor Hart, Lon Fuller “criticises Professor H.L.A. Hart for ignoring the internal ‘morality of order’ necessary to the creation of all law”. This, argues Fuller, is “the morality that makes law possible”, and he expounds this by means of eight negative criteria which would, to various extents, indicate failure in lawmaking. While the scope of this essay does not stretch to the inclusion of an examination of this point, it is an exemplification of naturalists’ proposition that valid law can only be created when conjoined with moral values.

Natural lawyers also believe that fidelity to law cannot be fully explained while there is a sharp separation of law and morality. Hart, by contrast, says that “[i]f the system is fair and caters genuinely for the vital interests of all those from whom it demands obedience, it may… retain [their] allegiance… for most of the time, and will accordingly be stable”. This explains fidelity to law without reference to moral values. I would agree that, if the masses consider the system to be fair and as working towards their own interests, then it requires no moral assessment for fidelity to ensue. But this is not enough for Fuller, who argues that, for Hart to complete his thesis, he must “concern himself more closely with a definition of law that will make meaningful the obligation of fidelity to law”. He believes it is a weakness of positivism that it offers no clarification of the obligation of fidelity to law in times of crisis:

“If all the positivist school has to offer in such times is the observation that, however you may choose to define law, it is always something different from morals, its teachings are not of much use to us”.

Fuller’s argument with regard to fidelity of law is, one might argue, logically sound. When law developed in early society it was based on moral values designed to further the good of society, and fidelity to law was achieved on this basis. However, I do not subscribe to the view that a law must have a moral basis for there to be fidelity to law, which I explained above. Furthermore, one may still conform to an immoral law; an example is the citizens of Nazi Germany conforming to the laws of the Nazi regime.

Hart analyses the topic of Nazi Germany in Positivism and the Separation of Law and Morals. He pays particular attention to the work of Gustav Radbruch, which he uses to support his argument that law and morality have to be separated to a large extent. Radbruch, who lived through the Nazi regime, was a positivist of the Austinian belief that “the validity of a law could not be disproved by showing that its requirements were morally evil”. However, he was converted to the natural law theories by the experience of the Nazi tyranny, and went so far as to say that positivism (here meaning the insistence on the separation of law as it is from law as it ought to be) had actually contributed to the horrors. It was his belief that any statute that contravened basic principles of morality, however clearly it conformed to the criteria for enactment, could not be valid. Following this reasoning, Radbruch was arguing that such statutes must be denounced by lawyers and judges for having no legal character. Hart was sympathetic to Radbruch’s “passionate demands”, but he said that:

“there is extraordinary naiveté in the view that insensitiveness to the demands of morality and subservience to state power… should have arisen from the belief that law might be law though it failed to conform with the minimum requirements of morality”.

More important, argues Hart, is an enquiry into why the separation of law and morals turned sour in Germany. He argues that to discount Nazi rules as invalid because they were immoral is to ignore the true reasons behind the expansion of the regime.

Radbruch had also contested that law contained in itself the essential moral principle of humanitarianism. A case, which was heard after the war, was cited by Hart to explain his dissatisfaction with this suggestion. A woman who had denounced her unwanted husband to the authorities for insulting remarks he had made about Hitler, was to be punished under the German Criminal Code of 1871 for illegally depriving a person of his freedom. She argued that she had acted pursuant to the Nazi statutes of the time, but the court held that the statute in question “was contrary to the sound conscience and sense of justice of all decent human beings”. Many hailed the decision as “a triumph of the doctrines of natural law and as signalling the overthrow of positivism”. Hart hailed this reaction as “hysteria”. He disagrees with the court’s decision that post-1934 statutes have no force of law, and would rather have seen the introduction of candidly retrospective legislation and punishment. This, argues Hart, would not have cloaked “the true nature of the problems”; it would have confronted the predicament of the enactment of immoral laws rather than overlooking it. This natural law method of denying the validity of evil law is an “assertion which many people do not believe”, and a confusion of the simplest form of moral criticism, according to Hart. This is a sound argument. Declaring laws as invalid because of the naturalist belief that immoral rules cannot be laws is retroactive and, I would argue, is unjustified in its claim that it offers succour in the event that similar laws are unveiled in the future.

Fuller replied shortly afterwards. He criticised Hart’s interpretation and analysis of Radbruch’s views, and put forward his principle that “[the] morality of order must be respected if we are to create anything that can be called law, even bad law”. He says that Hart almost completely neglected the aspect of internal morality of law and that this was a serious mistake that undermines accurate appraisal of a legal system. One cannot “dismiss the problems presented by the Nazi regime with the simple assertion: ‘Under the Nazis there was law, even if it was bad law’”, says Fuller. Instead, it is vital to enquire into the degree to which the Nazi legal system survived “the general debasement and perversion of all forms of social order that occurred under the Nazi rule”.

Fuller also argues that the distinction between law and morality in positivism fails to offer aid to judges:

“Is it not also clear that our judge can never achieve a satisfactory resolution of his dilemma unless he views his duty of fidelity to law in a context which also embraces his responsibility for making law what it ought to be?”

I do not agree with Fuller’s implication that judges should rely on their individual moral values to make “law what it ought to be”. Judges are appliers and interpreters of statute and, strictly speaking, they are not law-makers in their own right. Moral values should not come into the equation. However, this opinion is based on my appraisal of the English legal system, but in the United States – Fuller’s home country – judges do have greater law-making power. Perhaps this discrepancy should have been subjected to closer examination in the Hart-Fuller debate.

Fuller concludes by saying: “The fundamental postulate of positivism – that law must be strictly severed from morality – seems to deny the possibility of any bridge between the obligation to obey law and other moral obligations”. I would argue to the contrary, that positivism as a holistic entity does not create a strict, black-and-white division between law and morality. It is far more complex than this stereotypical interpretation suggests. Positivism says that law is an expression of obligation at a time and place, and legal obligation cannot be invalidated by what appears to be an absence of moral integrity.

Fuller, I would contend, is also wrong to say that positivism denies an association between general moral obligations and the obligation to obey law. Positivism, after all, is not amoral, and it does not seek to label as immoral someone who chooses not to obey a bad legal rule. Perhaps the most pertinent counter-argument of this naturalist view is Hart’s suggestion that naturalism can cloak “the true nature of the problems” of immoral laws by refusing to accept their validity. Such a refusal would fail to justify the very real danger of governments – such as the Nazi regime – imposing immoral command and sanction: if the sovereign calls it “law” and the populous obey, one might argue that there is no satisfactory reason to define it otherwise.

To identify the positivist distinction between law and morality as a weakness is, I would conclude, incorrect. However, I do not believe the true and definitive interpretation of the meaning of law has been, or will ever be, reached. While the search for the meaning of law continues, it is necessary that positivism offers a distinct approach to the questions of law and morality. This is not a weakness in positivism, it is its strength.

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BIBLIOGRAPHY

H.L.A. Hart, The Concept of Law (2nd ed., 1994)

M.D.A. Freeman, Lloyd’s Introduction to Jurisprudence (6th ed., 1999)

J.W. Harris, Legal Philosophies (2nd ed., 1997)

McCoubrey & White, Textbook on Jurisprudence (3rd ed.,1999)

J. Bentham, Of Laws In General, ed. Hart (1970)

H.L.A. Hart, Positivism And The Separation Of Law And Morals; Harvard Law Review, Vol. 71, 593

Lon L. Fuller, Positivism and Fidelity to Law – A Reply to Professor Hart; Harvard Law Review, Vol. 71, 634

Lon L. Fuller: The Morality of Law (1969)

John Finnis, The Truth in Legal Positivism

P.M.S. Hacker, Hart’s Philosophy of Law

Coleman & Leiter, Legal Positivism

Brian Bix, Natural Law Theory

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