David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
Learn more about PhilPapers
New York University Law Review 83:1035--1058 (2008)
This is the penultimate draft of a paper originally presented at the Hart-Fuller at 50 conference, held at the NYU Law School in February 2008. A revised version will appear in the NYU Law Review. The paper seeks to clarify and assess HLA Hart's famous claim that legal positivism somehow involves a 'separation of law and morals.' The paper contends that Hart's 'separability thesis should not be confused with the 'social thesis,' with the 'sources thesis,' or with a methodological thesis about jurisprudence. Hart's thesis denies the existence of necessary (conceptual) connections between law and morality. But that thesis is false: there are many necessary connections between law and morality, some of them conceptually significant. Among these is an important negative connection: law is of its nature morally fallible and morally risky. Lon Fuller emphasised the 'internal morality of law,' the 'morality that makes law possible'. Hart stressed that there is also an immorality that law makes possible. Law's nature is seen not only in its internal virtues, in legality, but also in its internal vices, in legalism.
|Keywords||No keywords specified (fix it)|
|Categories||categorize this paper)|
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
|Through your library|
References found in this work BETA
No references found.
Citations of this work BETA
Frederick Schauer (2010). Was Austin Right After All? On the Role of Sanctions in a Theory of Law. Ratio Juris 23 (1):1-21.
Juan Vega Gomez (2014). The Hart‐Fuller Debate. Philosophy Compass 9 (1):45-53.
Claire Grant (2012). Secret Laws. Ratio Juris 25 (3):301-317.
Giorgio Pino (2014). Positivism, Legal Validity, and the Separation of Law and Morals. Ratio Juris 27 (2):190-217.
Similar books and articles
Robert Alexy (2008). On the Concept and the Nature of Law. Ratio Juris 21 (3):281-299.
Robert Alexy (2002). The Argument From Injustice: A Reply to Legal Positivism. Oxford University Press.
Peter Rijpkema (2011). The Inevitability of Moral Evaluation. Ratio Juris 24 (4):413-434.
Joseph Raz (1979). The Authority of Law: Essays on Law and Morality. Oxford University Press.
G. Pino (1999). The Place of Legal Positivism in Contemporary Constitutional States. Law and Philosophy 18 (5):513-536.
N. E. Simmonds (2011). Reply: The Nature and Virtue of Law. Jurisprudence 1 (2):277-293.
James Morauta (2004). Three Separation Theses. Law and Philosophy 23 (2):111-135.
David-Hillel Ruben (1972). Positive and Natural Law Revisited. Modern Schoolman 49 (May):295-317.
Philip Schofield (2011). Jeremy Bentham and HLA Hart's 'Utilitarian Tradition in Jurisprudence'. Jurisprudence 1 (2):147-167.
John Gardner (2011). Hart on Legality, Justice and Morality. Jurisprudence 1 (2):253-265.
Added to index2009-01-28
Total downloads81 ( #25,662 of 1,699,596 )
Recent downloads (6 months)2 ( #269,935 of 1,699,596 )
How can I increase my downloads?