Positivism Part II - Honore

Why law and Morality Can’t be Fully Seperated

Even if a law can be “valid” because it came from the right source, law still claims moral authority, and legal language (rights, duties, obligations) isn’t meaningfully separate from moral language.

• Honore finds a middle ground, arguing that there is a necessary but not absolute connection between law and morality

“Semantic Thesis”

Semantic thesis (what he attacks): legal “rights/duties/obligations” are different in meaning from moral rights/duties/obligations.
Honoré says: no — the difference is mostly that legal duties are institutionalized and written/enforced, not that the words mean something totally different.

Two Definitions of Morality

• Positive morality: what a society actually accepts as moral (social norms).

• Critical morality: rational standards used to judge society’s norms (what society should accept).

Honoré thinks law should appeal to critical morality, not just whatever a society currently likes.

Significance

Honoré = moral reasoning is part of legal reasoning, especially when:

• judges interpret unclear laws, or

• officials decide how to enforce or reform law.

Strengths/Weaknesses

Strength: matches real legal practice (courts constantly talk about fairness, equality, reasonableness).
Weakness: critics say this risks letting judges impose their personal morality (uncertainty + democratic legitimacy concern).

Morality in Law

1. Honore’s insight: legal language itself is morally saturated 

• Legal language uses terms like duty, obligation, and responsibility, which are terms borrowed from moral language and authority

2. The criticism of this claim 

   • However, even bad laws present themselves as morally legitimate and use moral terminology 

     • For example, a law saying jews have no rights still uses the language of rights (a moral concept)

3. positive vs critical morality 

   • Positive morality consists of the norms and practices endorsed and followed by society at large 

   • Critical morality: critical morality is are rational standards that promote cooperation and peaceful coexistence among people

4. moral reasoning in legal interpretation

   • Judges cannot avoid moral reasoning 

     • Deciding if an outcome is fair, or whether a precedent is just 

   • Legal interpretation is not mechanical and requires moral judgment