The Separability Thesis

The Separability Thesis-57
When the notion of the disjoinability of law and morality is understood properly as a large array of theses, it proves to be resistant to the challenges that have been mounted against it.

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It has antecedents in ancient political philosophy and is discussed, and the term itself introduced, in mediaeval legal and political thought (see Finnis 1996).

The modern doctrine, however, owes little to these forbears.

The English jurist John Austin (1790-1859) formulated it thus: “The existence of law is one thing; its merit and demerit another.

Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry.” (1832, p.

If there is one doctrine distinctively associated with legal positivism, it is the separability of law and morality.

Both in opposition to classical natural-law thinkers and in response to more recent theorists such as Ronald Dworkin and Lon Fuller, positivists have endeavored to impugn any number of ostensibly necessary connections between the legal domain and the moral domain.Silly theses asserting the non-moral character of law can be eschewed, and are eschewed, by theorists who affirm the separability of law and morality. The critique would cease to be compelling if that denial were instead linked to the general notion of authoritativeness (as opposed to Raz’s particular conception thereof).We can easily see as much when we disentangle the different ways in which morality is to be understood. He cites the tepid approval of Fuller’s stance in Hart’s early work, but he omits to mention that Hart accepted Fuller’s claims chiefly in order to remark that their truth “is unfortunately compatible with very great iniquity” in a legal system (. A Soperian natural-law theorist could and would opt for the latter way of fleshing out the denial, rather than for the Razian way. My own contributions to the debate heretofore are “How Moral Principles can Enter into the Law” (2000) 6 Legal Theory 83; “Throwing Light on the Role of Moral Principles in the Law: Further Reflections” (2002) 8 Legal Theory 115; “On Morality as a Necessary or Sufficient Condition for Legality” (2003) 48 Am. Legal positivism is the thesis that the existence and content of law depends on social facts and not on its merits.The fact that a policy would be just, wise, efficient, or prudent is never sufficient reason for thinking that it is actually the law, and the fact that it is unjust, unwise, inefficient or imprudent is never sufficient reason for doubting it.According to positivism, law is a matter of what has been posited (ordered, decided, practiced, tolerated, etc.); as we might say in a more modern idiom, positivism is the view that law is a social construction.By the mid-twentieth century, however, this account had lost its influence among working legal philosophers.Its emphasis on legislative institutions was replaced by a focus on law-applying institutions such as courts, and its insistence of the role of coercive force gave way to theories emphasizing the systematic and normative character of law. Hart (1907-92) and Joseph Raz among whom there are clear lines of influence, but also important contrasts.Austin thought the thesis “simple and glaring.” While it is probably the dominant view among analytically inclined philosophers of law, it is also the subject of competing interpretations together with persistent criticisms and misunderstandings.Legal positivism has a long history and a broad influence.


Comments The Separability Thesis

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