Positivism and Responses

The Central Debate

What makes something “law,” and how (if at all) does morality matter to that?

• Positivist core: legal validity depends on social facts/sources (who enacted it, by what procedures, how officials recognize it), not on moral goodness.
  
  

Anti-/non-positivist pressure: law seems to claim authority and guide action in ways that look morally loaded; plus “rule of law” conditions seem morally significant.

H.L.A. Hart (Legal Positivism)

A. Core claim (separation thesis)

• Law is a social fact distinct from morality.

• A rule can be legally valid even if it is immoral (“valid but evil law” is possible).

• Validity question: Is it law? (source/recognition)

• Evaluation question: Is it good/just? (morality)

• Action question: Should I obey/resist? (moral-political judgment)
  

B. Why separation matters (Hart’s “two pathologies”)

1. Blind obedience: “It’s law therefore it’s moral therefore I must obey.”

   • False because legality does not equate moral merit.
     

2. Easy dismissal: “It’s immoral therefore it isn’t really law therefore I can ignore it.”

   • Also dangerous because it can hide what the system actually did and make critique sloppy.
     

C. Hart vs Austin (command theory)

Austin: law equals what the sovereign commands backed by threats.
Hart’s critique:

• Ignores legal limits on lawmakers (constitutions, procedural constraints).

• Can’t explain persistence/continuity of law across regime changes.

• Misdescribes power-conferring rules (contracts, wills, corporations) which grant abilities rather than threaten.

• Better model: law is a union of primary + secondary rules.

  • Primary rules: duties/obligations (don’t steal).

  • Secondary rules: rules about rules (how to identify, change, apply law).

  • Key secondary rule: rule of recognition (a social practice among officials for identifying valid law).
    

D. Core vs penumbra (open texture)

• Language is not perfectly precise:

  • Core cases: clearly covered.

  • Penumbra cases: borderline (“no vehicles in the park” but what about roller skates, toy cars?).

• Judges have discretion in the penumbra.

• This does not collapse law into morality: judges may use policy, purpose, precedent, institutional reasons, consistency, etc. (not only moral reasoning).
  

E. Nazi “grudge informer” / evil law problem

• Hart’s move: call the Nazi rule valid law but morally wicked.

• If we want to punish reliance on it later, do so openly (e.g., explicit new law), rather than pretending it “wasn’t law.”

• Goal: conceptual honesty + moral clarity (don’t launder moral judgments into definitions).

Hart’s positivism says:

• A rule is legally valid because it’s recognized by the system’s rule of recognition (social fact).

• A rule is morally good is a separate question.

The minimum content thesis only says:

• In the real world, any functioning legal system will tend to include some basic protections because otherwise it can’t secure social life.

So it’s a sociological/functional necessity, not a conceptual requirement for validity.

How it connects to Honoré (nice bridge)Honoré says law claims moral legitimacy and moral reasoning is unavoidable in interpretation.
Hart’s minimum content helps explain why law can plausibly make that claim: law is often (at least partly) aimed at the basic conditions for social life, even if it can also be used for injustice.

Fuller

A. Central claim

Law is not just commands; it is a mode of governing through rules, and that requires an internal morality (principles of legality). If these are massively violated, you don’t really have “law.”

B. The 8 principles of legality (inner morality)

1. Generality (rules are general, not ad hoc targeting)

2. Publicity (promulgated/knowable)

3. Prospectivity (not retroactive)

4. Clarity (intelligible)

5. Non-contradiction

6. Possibility of compliance

7. Constancy over time (relative stability)

8. Congruence (official action matches declared rule)
   

C. Why Fuller says these are “moral”

• They respect agency/dignity: people can plan their lives if rules are knowable and stable.

• They create reciprocity:

  • State: provides clear, stable, public rules.

  • Citizens: can reasonably be expected to comply.

• Law is a cooperative enterprise involving lawmakers, citizens, and judges—not mere threats.
  

D. Fuller on Nazi law

• Fuller argues Nazi “law” often failed legality (secret rules, retroactivity, arbitrary enforcement).

• So it was not truly a legal system but organized coercion/tyranny disguised as law.

• This is a direct rejection of Hart’s “valid but evil law” framing: for Fuller, massive illegality is a failure of law-ness, not just a moral defect.

E. “Fidelity to law” critique

• Fuller presses Hart: if law is sharply separated from morality, why should law claim special authority (why “fidelity”)?

• Fuller thinks law’s authority depends on it meeting legality conditions that are already morally significant.

A.M. Honoré (Middle Ground)

A. The middle thesis

There is a necessary but not absolute connection between law and morality.

• Not: “only moral rules are law” (too strong).

• Not: “law is morally neutral” (too thin).
  

B. Law makes moral claims (moral saturation of legal language)

• Law uses morally loaded terms: duty, obligation, responsibility, rights.

• So law presents itself as justified authority, not mere force.
  

C. The criticism / complication

• Even bad laws can use moral language to cloak themselves as legitimate.

  • Example: a wicked regime can still speak in “rights” language while denying rights.

• So moral language doesn’t prove law is truly moral—only that it claims moral standing.

D. Positive vs critical morality

• Positive morality: norms/values actually held by a society (what people accept).

• Critical morality: rational standards that promote cooperation and peaceful coexistence.

• Honoré’s takeaway: legal systems should be assessed (and ideally guided) by critical morality, not whatever a society happens to endorse.
  

E. Moral reasoning in interpretation (unavoidable)

• Judges can’t interpret purely mechanically:

  • hard cases require judgment about fairness, reasons, coherence, justice of outcomes.

• So morality enters law in application/interpretation, even if validity isn’t defined by morality.
  
  

Comparison

What they agree on

• Law is not just brute force; it guides conduct and involves institutions.

• “Hard cases” exist; interpretation can’t be purely mechanical.
  

Key differences

• Hart: validity comes from social sources; morality is for critique, not definition.

• Fuller: legality principles are part of what makes law law; massive failure = not law.

• Honoré: law necessarily claims moral authority and interpretation requires moral reasoning, but immoral law can still be law; use critical morality for evaluation.
  

The “false inference” Hart attacks

“It’s law therefore it’s moral therefore I must obey” is false because:

1. “It’s law” is a source/validity claim

2. “It’s moral” is a moral evaluation

“I must obey” is a moral obligation conclusion
Those don’t automatically entail each other.