Kaya Borkowski
Jurisprudence
DISTRIBUTION OF THIS DOCUMENT IS
ILLEGAL
Readings:
Week 1
- HLA Hart, ‘Positivism and the Separation of Law and Morals’ (1958) 71 Harvard
Law Review (38 pages)
- L Fuller, ‘Positivism and Fidelity to Law—A Reply to Professor Hart’ (1958) 71
Harvard Law Review (44 pages)
Week 2
- L Fuller, The Morality of Law, 1964, Ch 2. (58 pages)
- J Waldron ‘Positivism and Legality: Hart’s Equivocal Response to Fuller’ NYU
Law Review (2008) (35 pages)
Week 3
- TRS Allan ‘Law as a Branch of Morality: The Unity of Practice and Principle’
American Journal of Jurisprudence (20 pages)
Tutorial
- M Foran ‘The Rule of Good Law: Form, Substance and Fundamental Rights’
Cambridge Law Journal (2019) (26 pages)
Useful links ✰
- Explaining legal positivism and how the philosophers relate to one another
https://plato.stanford.edu/entries/legal-positivism/#ExisSourLaw
- Link on Hart and Fuller Debate
Lon Fuller, The Morality of Law - Oxford Handbooks Online
1
, Kaya Borkowski
Positivism and the Separation of Law and Morals
By HLA Hart
Useful link: Legal Positivism of Law
Short video: Modern Legal Positivism | Jurisprudence
(38 pages summarized in 11)
Introduction
- In this article, I will talk about and try to defend a view that, among other people, Mr.
Justice Holmes held and for which he and they have been criticised a lot.
- But first, I want to explain why I think that Holmes, no matter what his American
reputation is like, will always be a heroic figure in law for English people.
- This will happen because he magically combined two qualities: the ability to be creative,
which English legal thinking has often lacked, and clarity, which it usually has.
- When the English lawyer reads Holmes, he realises that what he thought was settled
and stable is actually always changing.
- But, just like Austin, when he was wrong, it was always clear.
- In law, this is a sure sign of a sovereign virtue.
- People say that clarity isn't enough.
- This may be true, but there are still legal issues that are hard to understand because
they are talked about in a way that Holmes would have thought was too confusing.
- This is true in a very important way about the topic of this article.
- Which of these do "positivists" not believe, and why is that wrong?
Part I
- The great Utilitarians* were the most serious thinkers about legal and social problems in
England at the end of the 18th century and the beginning of the 19th century.
- Two of them, Bentham and Austin, always said that it was important to make a clear
distinction between the law as it is and the law as it should be.
- On the other hand, this separation between law and morals is seen as shallow and
wrong in this country and, to a lesser extent, in England.
- In Bentham's works, you can pick out one by one the parts of the Rechtsstaat and all the
principles for which the term "natural law" is being used again today.
- Then why did they insist on keeping the law as it is and the law as it should be
separate?
- Austin came up with the idea that the fact that a law exists is not the same as
whether or not it is good.
- In his "Commentaries," for example, Sir William Blackstone says that the laws of God
are more important than all other laws, that no human laws should be allowed to
contradict them, that human laws have no force if they do, and that all valid laws get
their force from that Divine original.
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