LAWS20101 JURISPRUDENCE 2020-21

HART AND POSITIVISM:

LAW AND MORALITY

Course Director
Iain Brassington
iain.brassington@manchester.ac.uk
 LAWS20101 Jurisprudence 2020-21: Hart 2

IN THIS SECTION…
We’ll continue our look at positivism, with a focus on the
relationship between law and morality, in particular in respect
of
• The “minimum content” thesis
• The minimum content of international law
• Moral obligations and immoral laws
• The “Hart-Devlin debate”

WHAT SHOULD A LAW BE?

W
hat we have so far is a picture in which we don’t appeal to the
content of a law in order to establish its validity. But the Hartian
claim that there is no necessary connection between law and
morality tells us only that it is possible for there to be a valid law that is amoral
or even immoral. What it does not tell us is that there must be no connection
between law and morality. There is nothing in positivism to suggest that that
would be the case. It is, after all, fairly common for lawmakers to posit laws that
are heavily loaded with moral, or even moralising, concerns. It would be bizarre
to think that law and morality did not frequently come together. In fact, we
could even imagine a legal system in which every single law was highly
moralised; this would not falsify positivism, though, so long as we were satisfied
that this link was non-necessary.

But perhaps we need to retrace our steps a little. What does the word
“necessity” mean in this kind of context? When we say that there is no
necessary link between law and morality, what does that mean precisely?

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“Necessity” in this sense relates to what’s thinkable. A triangle

necessarily has three sides: if you’re thinking about a triangle, you must be
thinking about a three-sided shape, and if your’e thinking about a shape with
another number of sides, you’re not thinking of a triangle. As it happens, if
you’re thinking of a three-sided shape, you’re also thinking about a triangle.
However, things aren’t always this neat. A square is necessarily a rectangle: it
has four right-angles; but not all rectangles are squares. All rectangles are
necessarily four-sided; but not all four-sided shapes are rectangles. Some are
trapezia. Likewise, all bachelors are unmarried men; if you are thinking of a
bachelor, you must be thinking of an unmarried man. But it doesn’t follow that
all unmarried men are bachelors: some are widowers, and others are divorcés.

To say that there is a necessary link between law and morality is to say
that all legal systems must pass certain moral tests in order to be valid. (What
those tests are is a matter of further debate). If certain putative laws or even
whole legal systems do not pass these tests, they will turn out not to have been
laws or legal systems properly so-called after all. It does not follow, though, that
everything that passes those moral tests must be law.

And so when positivists deny the necessary connection between law and
morality, they are denying that legal systems must pass these moral tests on
pain of not being valid; but they could happily admit that, as a matter of
contingent (that is, non-necessary) fact, a given legal system is morally
desirable. They can even say that legal systems should pass certain moral tests,
in the sense that it is desirable that they do. But they don’t stop being valid as
legal systems in the event that they fail them. We could imagine an amoral, or
even an overwhelmingly immoral, law or legal system. For example, we could
imagine a legal system that allowed for private vendettas, so long as they were

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properly recorded on the correct little pink slip at the central office. Such a
legal setup might strike us as bizarre or repugnant; but, for positivists, it would
be no less legal for that.

In other words, for positivists, moral laws could have been otherwise and
they would still have been valid laws, and so bring with them the whole set of
legal obligations.

And positivists are just as entitled as anyone to insist that the law should
be thus-and-so.

THE MINIMUM CONTENT OF NATURAL LAW

Granted all this, Hart says something a little curious. In chapter IX of The
Concept of Law, he considers the relationship between law and morality, and in
so doing he appears to suggest that there is some kind of deep connection
between law and morality after all - that, when thinking about law, we do tend to
find some kind of moral concept built in to it, such that we can talk about
characteristics that a legal system must display. As he puts it, “there are certain
rules of conduct which any social organization [sic] must contain if it is to be
viable”1. And what is a set of laws if not a set of rules of conduct within a social
organisation?

Legal systems, Hart thinks, will have to accommodate certain brute facts
about the world and about humanity’s place in it:

• human vulnerability - the fact that we are all mortal and susceptible to injury,
hunger, and the like;

1 Hart, HLA, The Concept of Law (Oxford: Oxford UP, 1997), p 193

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• approximate equality - the fact that notwithstanding variations in strength,

equality, and so on, all humans are generally unable to subdue each other
without assistance, and even the very strongest must sleep sometimes;

• limited altruism - the fact that humans are not boundlessly cooperative;
• limited resources - the fact that humans live in a finite world, in which there
may be competition for limited goods; and

• finite competence and strength of will - the fact that we are not always as
good at realising, or as able to realise our projects as we might hope.

Accommodation of these considerations is proposed by Hart in his discussion

of what he calls the “minimum content of natural law”.2

This is unexpected. To say that the law must accommodate these things
looks like a morally-loaded claim. And if it is morally loaded, then it would
appear that Hart has cashed in his positivistic chips: he is, we might think,
saying that law is not just a system of posits that could be pretty much anything
after all. Must we draw this conclusion?

Or maybe we should conclude that Hart has made a serious

argumentative blunder here - so either he was mistaken when he claimed to be
a positivist, or is mistaken here when he talks about the minimum content.

But there is a third option, which is that this list of requirements is, in
many ways, a product of positivism - and this is the option that Hart himself
backs. Thus:

2 ibid, pp 194-8

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We are committed to it as something presupposed by the terms of the

discussion; for our concern is with social arrangements for continued existence,
not with those of a suicide club.3

Correspondingly,

without such a content laws and morals could not forward the minimum
purpose of survival which men have in associating with each other. In the
absence of this content men, as they are, would have no reason for obeying
voluntarily any rules; and without a minimum of co-operation given voluntarily
by those who find that it is in their interest to submit to and maintain the rules,
coercion of others who would not voluntarily conform would be impossible.4

Law is a human creation, and it would be strange indeed to imagine that

anything recognisable as law would therefore do anything but reflect certain
facts about human life. (Hart is not explicitly taking ideas from Hobbes here,
but it would not be stretching interpretation too far to point out a similarity.)
Legal sanctions arise “naturally” from certain fairly trivial facts about human
existence.5

Hart offers in this light the claim that when legal naturalists insist that the
law must have moral content, this is fundamentally what they mean: “The simple
truisms we have discussed not only disclose the core of good sense in the
doctrine of Natural Law”6.

3 ibid, p 192

4 ibid, p 193

5 ibid, ch. X, passim

6 ibid, pp 199-200, altered.

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Can we square this with the “must” claim? There is no particular reason
why not. Hart is not using the word as a command - more along the lines of
“there is no coherent alternative except this”. (Imagine you are trying to locate
where you are on a map: it is perfectly coherent to look at it, and your
surroundings. and say, “Ah! I must be here!” The word “must” in this case stands
for “It is the best explanation of the observed data that my current location
corresponds to this detail on the map”, rather than “I am required to be here”.
You must - pun intended - see that.

In other words, Hart is merely offering a prediction about the content that
we could plausibly expect to see in any legal system. This does not preclude
the possibility that we would discover a system that functions differently. But
though coherent as an idea, a society with a system of courts, officials, statutes
and so on but in which that system paid no attention at all to human needs
would be a big surprise.

To see what Hart means here, try this analogy.

Greymalkin, my cat, has four legs. Every cat I recall ever having seen has had
four legs, and I am reasonably confident that the next cat I see - and the fifty
after that - will also have four legs. Does it follow from that that four-
leggedness is built into the very idea of a cat in anything like the way that
three-sidedness is built into the idea of a triangle?

Not at all. Though almost all cats (and possibly all of them) actually do have
four legs, we could easily imagine a cat with three - for example, there could
be amputees, or others with congenital disorders that affect limb
development.

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These are no less

cats: they are just
rare, and perhaps a
little unexpected.
We might even
imagine a cat with a
genetic anomaly
leading it to have
more than four legs.
Again, this would
still be a cat: it’s just that we would be very surprised indeed to see any such
thing in real life.

Hart’s claims about minimal content work in roughly the same way. Of course
it’s possible to imagine a legal system that has nothing like a minimal moral
content. But given that law is a human institution, it’d be massively unlikely
ever to find any such system in reality.

Do you think that Hart is correct to say that there is a minimum

content to law? Does this undermine his positivism in any way?
Explain your answer.
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MINIMAL CONTENT IN INTERNATIONAL LAW

In the last section, we talked a little about Hart’s conception of international law.
If he is right to say that any recognisable legal system will have some kind of
minimal content, how would that fit in to the international legal system? Indeed,
would it fit at all? Is there a minimal content to international law? If a legal
system does things like protect people from violence by applying sanctions to
aggressors, and there’s no international analogy, isn’t that fatal either to the
concept of the minimum content, or to Hart’s characterisation of international
law?

Possibly not.

The first thing to keep in mind here is that - quite obviously - states are
not like people! They aren’t vulnerable in the same way; and since the minimal
content wasn’t built in to the concept of law so much as being a prediction
about the way that legal systems evolve to govern behaviour between people,
we could stall talk about international law without it. (At the same time, the
development of international humanitarian law in the period since Hart was
writing might be seen by Hartians as a response to something like minimal
content after all. In fact, there’ve been international laws about sanitation since
the 19th century; and it is tempting to think that it was a concern for something
like a minimum content that motivated their introduction.7)

As such, there is no fundamental need for international law to have the

same characteristics as domestic. That said, as we saw in the last section, there

7For a brief survey of the history of international sanitary laws. see Houston, A, “Applying
Lessons from the Past in Haiti: Cholera, Scientific Knowledge, and the Longest-Standing
Principle of International Health Law” in Eccleston-Turner, M & Brassington, I (eds.) Infectious
Diseases in the New Millennium: Ethical and Legal Challenges (Cham: Springer, 2020): passim

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are “soft” sanctions in international law when countries step out of line: we
generally can’t send rulers to prison for, say, breaking a trade agreement; but we
can withdraw economic cooperation or restrict the freedoms of certain
government officials, and that does have some analogous function to the
sanctions we find within domestic legal systems.

MORALLY-LED LAWS
So far, Hartian postivists are going to say that, though there’s no necessary link
between law and morality, there are nevertheless decent reasons to expect that
a legal system would show a certain attitude towards the people it governs and
aim to protect them - and this does look broadly moral.

Could we go a bit further, and say that law ought to be morally-led?

What are your intuitions about whether the law should be morally-
informed? Why?
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As we noted a little while ago, it does seem to be fairly obvious that laws
are often written for moral, or moralising, reasons. Laws against murder and
robbery are presumably supportable because we think that murder and robbery
are bad or wrong things that states ought to try to prevent and ought to punish
when prevention fails. Disputes about, say, whether the law should allow
abortion are presumably informed by moral claims; and even those who are
opposed to abortion might still say that it ought not to be criminal, because
criminalising it is undesirable (perhaps by driving it underground, so making it
more dangerous).

A legal system in which laws did not reflect quite strong moral beliefs
would be quite unlike most, if not all, actual legal systems. Many laws are
passed for moral, or moralising, reasons. (This point prefigures some of Patrick
Devlin’s arguments: see below.)

There’s no reason why a Hartian would deny any of this, or think it

strange. Everyone would prefer a morally-defensible legal system, and if law is a
system of posits, then it is easy to bring moral positions to bear on the law. And,
of course, this is wholly compatible with the sources thesis. After all, all the
sources thesis says is that the law’s validity qua law does not depend on its
moral characteristics. Though laws do not have to be morally neutral, law as a
concept is.

Now, this neutrality does potentially raise a worry about positivism, which
is that if the concept of law is morally neutral, this means that there may be little
that anyone can do within law to resist tyranny.

To see why, imagine a broadly naturalist position, which says that the law
must satisfy certain moral standards in order to count as law. This means that a

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supposed law that is grossly immoral may well turn out not to be a law after all;
and this releases all of us from any legal obligation to obey it, and it releases
judges from having to apply it. Thus immorality will not have legal force behind
it, and law can be used to mitigate or militate against immoral policies.

But now imagine that positivism is correct, and that you are a judge in a
wicked regime. Granted that the validity of law does not depend on its content,
this means that it cannot be true that we could reject an immoral law as no law
at all: so long as it came from the correct source, that would be the whole story.
The role of judges and other officials would simply be to apply the law as it is
handed down. While we might want some kind of moral resistance, the law as
an institution could be of no help to us.

This was a worry that concerned the German jurisprudentialist Gustav

Radbruch (1878-1949), whose initial sympathy to positivism was tempered by
the way he saw that positivism was helpless in the face of the Nazi takeover and
demolition of the Weimar Republic by at least formally legal means.

Note that concerns such as Radbruch’s about positivism’s moral toothlessness do

not in themselves give us a reason to reject positivism. Positivism might still be
correct - that it is arguably unable to stop immoral policies becoming law may be
simply we have to accept as a problem for positivism, rather than a problem with
it.

Or, to put things a bit more prescriptively: the dispute between naturalism and
positivism is a dispute about the way the world works. Yet there being
undesirable outcomes to a particular hypothesis does not show that that

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hypothesis is wrong, or give us a reason to move to a new one, any more than the
undesirable consequences of leaping from a tall building gives us a reason to
insist that we should replace our current understanding of gravity with something
different.

OBEYING IMMORAL LAWS

The moral neutrality of law under positivism means that we can ask questions
about the nature of legal and moral obligation, and so about the nature of our
obligation to obey the law. Remember that Hart claims that obligation isn’t
simply a matter of being obliged; legal obligation is based on a recognition of
the law as law, irrespective of its merits. That seems to be morally
compromising.

However, this is not the whole story. After all, Hart was there talking
about legal obligation; but if there is no necessary connection between legality
and morality, then there is presumably no particularly good reason to suppose
that things that we might say about legal obligation would translate
straightforwardly to moral obligation, or vice versa.

So, for sure, we have legal obligations (and legal reasons) to obey the law
as it is posited; but legal obligations are not the only obligations. We could have
moral obligations as well.

Do we have a moral obligation to obey the law? Quite possibly. We might

think, for example, that we ought to obey the law for moral reasons, because the
consequences of obeying it would (at least usually) be terrible: the principle that
we can take or leave the law as we see fit does seem to be an invitation to
anarchy. But these moral reasons would be further reasons, beyond “because

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it’s the law”. And, correspondingly, we might have competing moral reasons to
disobey it. It is possible that we could have both kinds of reason at once - after
all, it is inherent in the idea of a moral dilemma that one recognises reasons to
do something and reasons not to do that same thing, and inherent in the idea of
being a moral agent that one might have to weigh these reasons against each
other.

The point is this: when faced with a valid legal demand, there could still
be a dilemma about whether to obey it. To give an obvious example, if the
Gestapo knocks on your door wanting to know if you are aware of any Jews
hiding nearby, you might recognise that you have a legal obligation to tell them
what you know, and you might even recognise that you have a moral obligation
to do so based on your respect for the institution of law, or based on the value
of truthfulness. But you might at the same time recognise that you have a moral
obligation not to tell them the truth; and it is possible that that would be the
weightiest obligation. Similarly, in A View from the Bridge, Eddie may have a
legal obligation to come clean to the immigration authorities about the
immigrants he is sheltering; but he may have a moral obligation not to.

Hart thinks that this sort of point gives him a response to concerns such
as Radbruch’s:

[E]verything that [Radbruch] says is really dependent upon an enormous

overvaluation of the importance of the bare fact that a rule may be said to be a
valid rule of law, as if this, once declared, was conclusive of the final moral
question: ‘Ought this rule of law to be obeyed?’ Surely the truly liberal answer to
any sinister use of the slogan ‘law is law’ or of the distinction between law and
morals is, ‘Very well, but that does not conclude the question. Law is not
morality; do not let it supplant morality.’

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If we adopt Radbruch’s view, we confuse one of the most powerful, because it is

the simplest, forms of moral criticism. If with the Utilitarians we speak plainly,
we say that laws may be law but too evil to be obeyed.8

In other words, Hart turns the concerns about positivism back on

themselves: instead of worrying that law is rendered an instrument of wicked
regimes and that therefore we are committed to obey those regimes, Hart’s
response is to say that while law does regulate human behaviour, it is not the
only thing that does so. Law does not exhaust our obligations. We may
sometimes have an obligation to ignore or to break the law.

In this context, let’s revisit our painting!

Recall that this painting could be taken to show a legal system in action. But it
could also be taken to illustrate the difference between legal and moral
obligations. After all, the child in blue has a legal obligation to tell the
Parliamentary forces what he knows about his father’s location.

8Hart, HLA, “Positivism and the Separation of Law and Morals”, Harvard Law Review 71[4] (1958):
618-620; modified

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However, he also has a number of moral obligations. One of these would be to

tell the truth when asked a question; and to be loyal to his father. It is possible
that these moral obligations could be in tension, if not antagonistic. Therefore
e must ask himself whether to obey the law, as personified in the officials at
the table, or whether on this occasion he has a moral obligation not to that
overpowers it. The painting shows two kinds of obligation in action and -
potentially - in conflict.

Is there any kind of obligation to obey immoral laws? How ought one
to act when the law makes immoral requirements?
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THE HART-DEVLIN DEBATE

The relationship between law and morality in Hart’s thinking is brought into
relief in the debate between him and Lord Devlin over the Wolfenden Report -
or, to give it its full name, the Report of the Committee on Homosexual Offences
and Prostitution - which was published in 1957. This report recommended the
decriminalisation of homosexuality between consenting adults in private.

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Fundamental to its recommendation was a denial of a conceptual link between

“crime” and “sin”. This link having been denied, there was no clear reason for
the law to interfere in the private (mis)conduct of adults, even if it was held to
be immoral by whatever standard of morality one may choose to bring to bear
on the matter.

The conclusion of the report was rejected by Devlin, who took issue with
the separation of crime from sin; and the starting point for his argument was to
claim that crime is not a wholly private matter.

Consider, for example, crimes against the person. Imagine that Smith
commits some crime against Jones’ person - for the sake of the argument, let’s
say it’s an assault. Now imagine that Jones decides to forgive Smith. Devlin
points out that English law would be blind to this.

But why? It looks like a matter of private conduct. Not quite, says Devlin:

If the law existed for the protection of the individual, there would be no reason
why he should avail himself of it if he did not want it. The reason why a man may
not consent to the commission of an offence against himself beforehand or
forgive it afterwards is because it is an offence against society […]

It is not that society is physically injured; that would be impossible. There is only
one explanation of what has hitherto been accepted as the basis of the criminal
law and that is that there are certain standards of behaviour or moral principles
which society requires to be observed; and the breach of them is an offence not
merely against the person who is injured but against society as a whole.9

9 Devlin, P, The Enforcement of Morals (London: Oxford UP, 1968), pp 6-7; slightly modified

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In other words, Devlin holds that law is not just about settling disputes between
people: it’s also a way by which society in abstracto protects itself and its
interests. Indeed, he reasons, there is a sense in which the community is
defined by its moral standards; hence to protect them is to protect the
community. On that basis,

[e]stablished government is necessary for the existence of society and therefore

its safety against violent overthrow must be secured. But an established
morality is as necessary to good government to the welfare of society. Societies
disintegrate from within more frequently than they are broken up by external
pressures […]

There is disintegration when no common morality is observed and history shows

that the loosening of moral bonds is often the first stage of disintegration, so
that society is justified in taking the same steps to preserve its moral code as it
does to preserve its government and other essential institutions. The
suppression of vice is as much the law’s business as the suppression of
subversive activities…10

There is an historical dimension to Devlin’s argument. He thinks that it is

right for English law to enforce Judeo-Christian morality; but this isn’t because
it’s Judeo-Christian: it’s because it’s there. For the sake of this argument, Devlin
is not particularly bothered by the precise details of a moral system; what
matters to him is that societies are framed by their moral systems, whatever
they may be. Exactly the same principles would hold in a society built on
Islamic, Hindu, or Aztec foundations: all that would matter would be that the
foundations for this or that society are x, y, and z, and that that society is
therefore entitled (and to be expected) to enforce x, y, and z as matters of self-
preservation.

10 ibid, pp 13-14

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So this would give Devlin a defence against charges of arbitrary moralism. He’s
still moralising, for sure - but not arbitrarily.

Thus, he continues,

The Christian institution of marriage has become the basis of family life
and so part of the structure of our society. It is not there because it is
Christian. It has got there because it is Christian, but it remains there
because it is built into the house in which we live and could not be
removed without bringing it down. A non-Christian is bound by it, not
because it is part of Christianity but because, rightly or wrongly, it has
been adopted by the society in which he lives.11

Is Devlin correct to say that societies have the right to defend their
moral norms by means of law?
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We might wonder, of course, how we know what society’s core values are.
For Devlin, it’s a matter of what we can impute to the reasonable person. On the
other hand, that actually does seem to be potentially arbitrary, since

11 ibid, p 9; modified

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“reasonable” might be judged by prevailing standards; that is to say, we might

be inclined to dismiss someone’s moral claims as unreasonable just because
they are idiosyncratic.

Still, a slightly more sophisticated version of the same argument has been
suggested by John Kekes. For him, there will be certain core values that any
society could be expected to endorse, and certain behaviours that it would
reject. For example, sadism or cannibalism might be antagonistic to anything
like civilised existence, whereas homosexuality or euthanasia mightn’t be. As
such, laws against sadistic or cannibalistic practices - even when consensual -
might be warranted in a way that they wouldn’t be for homosexuality or at least
some forms of mercy-killing.12

What about cannibalism, though? An interjection from IB…

For people drawn to the Kekes line, the reason to forbid cannibalism must be
that it is a threat to society; if there is no such threat, there’s no justification.

Maybe its being (non-)consensual is important: it is perhaps difficult to imagine

anyone genuinely consenting to being eaten, or wanting to eat another
human. But maybe that just tells us about the limits of my imagination: I’m not
sure. Maybe the public health aspect matters - cannibalism is associated with
the degenerative brain disease kuru, which is a little like CJD. A law against
cannibalism could be framed in terms of society protecting itself in this way.
On the other hand, we allow people to smoke, so why not just inform people of
the risk and allow them to take it if they so choose?

But now I come to think about it, is there really a threat to the fabric of society
from cannibalism? Maybe not - and paradoxically, this is precisely because it’s
abhorrent! If something really is abhorrent, mightn’t we expect that it would
not have much of a social impact, just because most will reject it?

It might be that we have more of a reason to forbid the stuff that’s mildly

12Kekes, J, “The Enforcement of Morality” American Philosophical Quarterly vol. 37, # 1 (2000);
repr. in Kekes, J, A Case for Conservatism (Ithaca: Cornell UP, 2001), §5

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disquieting, since that’s more likely to alter everyday behaviour. This seems a
bit counterintuitive, though.

One day, I will get around to completing the paper I halfheartedly started to
write on cannibalism and English law about 8 years ago.

Does Hart have a response to any of this?

As it happens, he thinks he as several. One option is to invoke a kind of

paternalism:

The rules excluding the victim’s consent as a defence to charges of murder or

assault may perfectly well be explained as a piece of paternalism, designed to
protect individuals against themselves […] If, as seems obvious, paternalism is a
possible explanation of such laws [as restrict the sale of drugs], it is also
possible in the case of the rule excluding the consent of the victim as a defence
to a charge of assault. In neither case are we forced to conclude with Devlin
that the law’s “‘function’ is ‘to enforce a moral principle and nothing else’.13

And there are other reasons that Hart offers to reject Devlin. Devlin’s appeals to
what history shows are very vague, for one thing. For another, he seems to think
that social integration is an all-or-nothing affair. But cultures do change, often
thanks to moral radicals. To give an example that Hart does not consider, a
practice such as female genital mutilation may be fading, despite some people
thinking it’s important for social reasons. This has not undermined the cultures
of the parts of the world where it is still practiced; rather, those cultures are just
shifting slightly. (It’s interesting to note in practice that Devlin frames his
argument in terms of allowing things banned hitherto, rather than banning
things allowed hitherto.)

13 Hart, HLA, Law, Liberty and Morality (Oxford: Oxford UP, 1963), pp 31-2

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But let’s up the ante and suppose that Devlin is correct to suppose that
one adopts a culture’s norms entirely or rejects that culture entirely. Well: so
what? Let’s imagine that the culture of this or that region would collapse if we
were to ban FGM or allow homosexual acts between consenting adults in
private. So much the worse for that culture! We don’t have to shed too many
tears to see the death of a culture that turns out to depend on the persistence
of an abhorrent practice. Or, as Hart puts it,

We might wish to argue that whether or not a society is justified in taking steps
to preserve itself must depend both on what sort of society it is and what the
steps to be taken are. If a society were mainly devoted to the cruel persecution
of a racial or religious minority, or if the steps to be taken included heinous
tortures, it is arguable that what Lord Devlin terms the ‘disintegration’ of such a
society would be morally better than it continued existence, and steps ought not
to be taken to preserve it.14

Of Hart and Devlin, whose position on the relationship between law

and morality do you find more compelling? Why?
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14 ibid, p 19

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Does that mean that Devlin is a naturalist or some other form of anti-
positivist? Not really. Remember that positivists are still free to make claims
about what the moral content of the law should be and why.

Devlin’s claims about the law’s function being to protect society could be
seen as analogous to Hart’s own minimum content claims; and so if Hart is still a
positivist, so might Devlin be. More generally, Devlin’s case that law ought to
enforce morality, and his claims that that’s the only way that we can make sense
of some laws, are perfectly compatible with the kinds of things Hart wants to
say in The Concept of Law. None of what Devlin says has to commit us to the
view that law is moral by nature.

Indeed, making claims about what law does or ought to do in concreto

won’t offer any clues at all about the nature of law in abstracto. Just as you can’t
get an “ought” from an “is”, you also can’t reliably get an “is” from an “ought”.
Devlin (and Kekes) seem(s) to be making a pragmatic case much more than a
metaphysical one; and Hartians need not deny that law is a moral force.

It so happens that Hart was fairly liberal and argued for fairly liberal laws;
Devlin was more conservative. But since positivism denies any necessary link
between law and morality, one’s moral position won’t tell us all that much about
whether one can be a positivist.

SUGGESTED READING
Devlin, P, The Enforcement of Morals (Oxford: Oxford UP, 1985)

Hart, HLA, The Concept of Law

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Hart, HLA, Law, Liberty and Morality (Oxford: Oxford UP, 1968)

Hart, HLA, “Positivism and the Separation of Law and Morals”, Harvard Law
Review 71[4] (1958)

Kekes, J, “The Enforcement of Morality” American Philosophical Quarterly 37[1]

(2000); repr. in Kekes, J, A Case for Conservatism (Ithaca: Cornell UP, 2001), §5

Lee, S, Law and Morals (Oxford: Oxford UP, 1986)

Simmonds, N, Central Issues in Jurisprudence (London: Sweet and Maxwell,

2018), §5

Summers, “Professor HLA Hart’s Concept of Law”, Duke Law Journal 12[4] (1963),
p 629

Wacks, R, Understanding Jurisprudence (Oxford: Oxford UP, 2012), §§3-4

COMING NEXT…
Lon Fuller’s restatement of a necessary link between law and morality.

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