Positivism and the Separation of Law and Morals

Please read the essay by former Oxford University Professor of Jurisprudence, H.L.A. Hart, Positivism and the Separation of Law and Morals, which appeared in the Harvard Law Review in 1958.

Here is the link: http://users.umiacs.umd.edu/~horty/courses/readings/hart-1958-positivism-separation.pdf.

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“Legal positivism” is a school of jurisprudence which believes the only legitimate sources of law are those written statutes, laws, rules and regulations that have been expressly enacted, adopted, or recognized by a governmental entity or political institution, e.g., legislatures and courts. In other words, laws are simply the expression of the will of whatever authority created them. As such, what the laws are not are expressions of higher morality or higher principles. (You should be thinking: this sounds very different from natural law. We will get to that later.).

Hart makes five main points that are associated with the idea of legal positivism:

Laws are the commands of human beings.
There is no necessary connection between law and morals.
The analysis of legal concepts is (a) worth pursuing, and b) distinct from sociological and historical inquiries.
A legal system is a “closed logical system” in which correct decisions may be deduced from predetermined legal rules by logical means alone.
Moral judgments cannot be established, as statements of fact can, by rational argument, evidence or proof.

After reading the essay, please answer the following questions:

1) What does it mean if you say law is only the decisions of those in power? In other words, is law divested of moral content? Is it a rejection of attempts to distinguish good law from bad law, or just laws from the unjust laws?

2) Provide an example of an unjust law, in your view. Would legal positivism excuse the creation or enforcement of that law?

Please answer all questions, in at least 5 paragraphs, by the above due date.

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