Legal Positivism- HLA HART

defense of legal positivism

Central Aim (Legal Positivism Definition)

defend legal positivism: the view that law and morality are distinct and to revive jurisprudence by keeping moral criticism conceptually separate from legal analysis.

• is not saying moral critique is pointless, rather moral critique is done better when you don’t confuse it with the question “is it law?”

Benthan/Austin Background (Hart’s Two Errors) - Command Theory

Command theory

• Law = command backed by threat of sanction; sovereign is habitually obeyed and obeys no one; law valid regardless of moral content.

Benthan/Austin Background (Hart’s Two Errors) - Confusing “is” and “ought”

Hart (via Bentham) says mixing up law and morality produces two classic mistakes:

Anarchist error: “This ought not to be law, therefore it isn’t.”

• treating moral condemnation as if it cancels legal validity.

Reactionary error: “This is law, therefore it ought to be.”

• treating legal validity as if it morally justifies obedience.

Important Nuance “Positivism Does NOT Deny”

• law and morality historically influence each other,

• legal systems may incorporate moral principles (like constitutional rights),

• courts may be legally required to apply moral standards—but that’s a contingent legal fact, not part of law’s necessary concept.

Critique of Command Theory

Critiques the idea that the law is essentially a command of a sovereign backed by threats 

1. ignores legal limits on lawmaking power 

2. can not explain the persistence of law 

3. Mischaracteristics of power-conferring rules

Rights and Powers: Not all Law is coercive Hart emphasizes:

Hart emphasizes:

• Not all laws are coercive commands. Some laws enable people to create legal relations.

• Rights need not be moral: rights can exist even in immoral systems (example given: slavery)

Legal significance: This is a major expansion of what “law does.” It’s not only “don’t do X or else punishment,” but also “here’s how to validly do Y” (make contracts, wills, incorporate, etc.). That’s why a purely sanction-centered picture is incomplete.

Interpretation, penumbra, and judicial choice (Hart + Realists)

Rules have a core meaning and a penumbra of uncertainty; judges must interpret ambiguous cases (toy car vs “vehicle”).

• Interpretation involves choice, not pure deduction.

Hart contrasts:

• Formalism: blind rule-application without regard to social aims.

  PHILOS 3Q03 Lec 3 Natural Law a…

• Intelligent decision: guided by social purposes (not necessarily moral ones).

“Ought” in legal interpretation does not always mean “morally ought”—it can be policy/utility/other standards.

Definitions (usable):

Penumbra: the “edge” of a rule’s meaning where it’s unclear how the rule applies.

Judicial choice: where law runs out (or is indeterminate), judges must choose how to extend/apply it.

Formalism: judging as mechanical deduction.

Radbruch Example

Radbruch (after Nazi atrocities) argued laws violating fundamental morality cannot be valid law.

• Hart’s response: denying legal status to immoral laws can obscure moral criticism; better to say: “This is law, but too evil to obey.”

• The “importance of candour”: moral dilemmas should be faced openly; saying “this is not law” can be a way of avoiding the real moral conflict.

Legal significance: This is directly exam-usable in any scenario about unjust regimes, retroactive punishment, constitutional crises, etc. Hart is giving you a method: separate (1) legal validity from (2) moral legitimacy and (3) moral duty to obey.

Minimum Moral Content and Procedural Justice

• Legal systems must prohibit violence/theft etc. to be functional, overlapping with basic moral principles as a natural necessity.

• Law’s generality implies equal treatment of like cases; procedural justice is a moral feature of law’s structure.

How to explain this without contradicting Hart: Hart can maintain “law and morality are distinct concepts” while still claiming that functioning legal systems in practice require some overlap with minimal moral norms (otherwise they can’t do what legal systems do).

Theory Strengths

• Conceptual clarity: avoids the anarchist/reactionary errors by separating validity from moral evaluation.

• Realistic account of legal systems: recognizes laws that confer rights/powers, not just threats, and recognizes social acceptance/institutions.

• Honest moral reasoning (“candour”): lets you say “it is law” while still condemning it as evil and debating disobedience or reform openly.

Theory Weaknesses

• Hard cases pressure: once you admit judicial choice in the penumbra, critics can argue judges “make” law and law is less determinate than positivists want (your lecture explicitly says judicial legislation is “real and necessary”).

• Minimum moral content tension: critics can argue that admitting functional moral overlap undermines the “distinct concepts” claim (your lecture even frames this as a question to test).

• Practical discomfort: Hart’s approach can feel unsatisfying to people who want law to automatically lose validity when it is radically unjust

Core vs Penumbra

• The law is not perfectly certain; there are grey areas that exist 

• Judges have the legitimacy to decide in these areas how the law will be applied 

• This does not collapse the law into morality, as judges can use non-moral criteria 

• Legal systems need both core certainty and flexibility 

• Car example, where automobile is not allowed in a certain area, what about toy cars or roller skates? Are they still counted?