Positivism And The Inseparability Of Law And Morals

New York University Law Review 83:1035--1058 (2008)
Abstract
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)
Options
 Save to my reading list
Follow the author(s)
My bibliography
Export citation
Find it on Scholar
Edit this record
Mark as duplicate
Revision history Request removal from index
 
Download options
PhilPapers Archive


Upload a copy of this paper     Check publisher's policy on self-archival     Papers currently archived: 9,357
External links
  •   Try with proxy.
  • Through your library Configure
    References found in this work BETA

    No references found.

    Citations of this work BETA
    Claire Grant (2012). Secret Laws. Ratio Juris 25 (3):301-317.
    Similar books and articles
    Analytics

    Monthly downloads

    Added to index

    2009-01-28

    Total downloads

    74 ( #15,253 of 1,088,616 )

    Recent downloads (6 months)

    1 ( #69,601 of 1,088,616 )

    How can I increase my downloads?

    My notes
    Sign in to use this feature


    Discussion
    Start a new thread
    Order:
    There  are no threads in this forum
    Nothing in this forum yet.