33 Positivism and Totalitarianism

David Dyzenhaus*

33.1 Introduction

Critics of legal positivism have charged it with a propensity to encourage

totalitarianism or at least to weaken resistance to it. Totalitarian leaders
govern in the name of only that part of the people that fits their ideas of the
substantive good. Once in power, such leaders tolerate liberal democratic
institutions only for as long as these serve their interests. This is a rough
definition. But it captures what the Nazi and fascist regimes have in
common with the post-war dictatorships of Latin America, the apartheid
state, as well as the ‘illiberal democracies’ of today.
Debate over this propensity is fundamentally shaped by H. L. A. Hart,
Positivism and the Separation of Law and Morals (hereinafter Positivism).1
It also shaped the whole course of legal philosophy, though there is little
recognition of the philosophical impact of Hart’s attempt to refute the
charge that a positivistic ‘insistence on the separation of law as it is from
law as it ought to be’ had ‘powerfully contributed to the horrors’2 of the
Nazi regime by encouraging German lawyers to think that anything with
the form of law should be obeyed. Indeed, although Hart presented the
essay as a defence of the ‘separation thesis’ that there is no necessary
conceptual connection between law and morality, and argued that positi-
vism stiffens resistance to totalitarianism, his students have taken to
claiming that positivism accepts several necessary connections between
law and morality, and even deny that Hart ever subscribed to the separa-
tion thesis.3

* I thank the participants in the legal philosophy workshop of Uppsala University and for
helpful written comments and correspondence: Nicola Lacey, Patricia Mindus, Thomas
Mertens, Torben Spaak and Kenneth Winston. I also thank Ken Winston for providing me
with the translation of Gustav Radbruch in Lon L. Fuller’s Jurisprudence Materials, i.e. the
materials he prepared for his course at the time H. L. A. Hart was visiting Harvard.
1
Hart 1983. 2 Hart 1983: 81. 3 See, e.g., Gardner 2012: 221.

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 33 Positivism and Totalitarianism 765

Positivism began as a lecture at Harvard Law School in 1957 and, as Hart

pointed out, the ‘stink’ of totalitarian societies was still in ‘our nostrils’.4
He was thus concerned about the impact of a charge that came from the
‘testimony’ of those who had lived through the ‘terrible experience’ of Nazi
terror – who had ‘descended into’ an earthly ‘Hell’ and ‘brought back
a message for human beings’.5 Hart thought it easy to demonstrate that
the charge was ‘stark nonsense’ precisely because of the light shed by
the separation thesis.6 But, in this demonstration, he brought Gustav
Radbruch – the scholar who attracted Hart’s ire – to the attention of
philosophy of law outside Germany and provoked the debate about the
link between positivism and totalitarianism.
For Radbruch’s charge was from a natural law position that asserts
a necessary moral quality to law and neither the charge nor natural law
disappeared in the wake of Hart’s ‘refutation’. Lon L. Fuller argued that
legal order has an ‘inner morality’7 and reinstated the charge. Ronald
Dworkin argued that judges who sought a principled basis for their inter-
pretations within the positive law would make the law morally better, while
positivistic judges would make it worse, with the latter argument supported
by work on apartheid South Africa.8 Robert Alexy sought to rehabilitate
Radbruch’s position in the context of the legal response to the activities
of the East German regime in the wake of German reunification.9 Finally,
Carlos Nino argued on the basis of his experience of totalitarian regimes in
Latin America that ‘ideological positivism’ contributes to totalitarianism.
This doctrine holds that ‘all power justifies itself and that the prescriptions
enacted by those who enjoy the monopoly of force in a society are in and of
themselves reasons for justifying action’.10
Nino recognised that positivists reject the claim that ‘all power justifies
itself’, which raises the question of why the charge persists. The answer is
as follows. First, Hart claims that law is no more than positive law with the
content it happens to have, which helps the good liberal citizen to avoid
the natural law traps of supposing either that merely because X is the law,
X has a moral quality to it, or that X fails to be a law simply because it
is morally bad. Second, he claims that law must be understood as a
matter of authority. As Hart explained his move away from his positivist

4 5 6 7
Hart 1983: 81. Hart 1983: 72. See Hart 1983: 73. Fuller 1958.
8 9
See Dworkin 1986, and for South Africa, see Dyzenhaus 2010. See Alexy 2002.
10
Nino 1996: 156.

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 766 David Dyzenhaus

predecessors and their command theory of law: ‘Law surely is not the
gunman situation writ large.’11
But Hart thus set legal positivism the following puzzle: How can one
consistently deny a necessary connection between law and morality and
assert a necessary connection between law and authority? For if the latter
is the case, it seems that positivism is ideological positivism. Those subject
to the power of a de facto sovereign must understand that sovereign’s law
as authoritative, whatever its content.
In later work, Hart frankly confessed that he lacked the resources to deal
with the puzzle, but he insisted that the authority of law is not moral.12
That suggestion relies on the claim in both Positivism and later work that
there is no conceptually necessary connection between law and morality.
Any concessions to natural law depend on contingent facts about human
beings and the world we happen to live in.
I will argue that the puzzle presented Hart and his students with a
dilemma: Either accept the force of the charge that positivism encourages
totalitarianism or accept that the authority of law is always to some
extent legitimate. The second horn of the dilemma requires forgoing not
only the separation thesis but also a hard and fast distinction between de
facto and de jure, or legitimate, authority; and that distinction remains
central to the work of even those among Hart’s students who claim to
disavow the separation thesis.
To show that there is this dilemma, I recover principled resources in
Hart’s own theory – his version of an inner morality of law – that go far
beyond the necessary connections between law and morality announced
by Hart’s students. It is only if these resources move from the margins of
Hart’s theory, where he kept them for safety’s sake, to its centre that Hart
and legal positivism can avoid the slide into ideological positivism. These
resources have been occluded, first, by Hart’s insistence on the separation
thesis and, second, by the way he structured his argument in Positivism.
For Hart postponed his discussion of the natural law challenge to legal
positivism at the most general level to the penultimate part of his essay
(part 5). However, when the subject matter of part 3 – how to understand
the role of a theory of adjudication within a general theory of law – and
that of part 4 – how judges should respond to unjust law – are placed within
the context of the natural law challenge at the most general level, his

11 12
Hart 1983: 59. See Hart 1982: 266–8.

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 33 Positivism and Totalitarianism 767

arguments against natural law positions in parts 3 and 4 become ineffec-

tive. In other words, Hart’s argumentative strategy made it much easier to
present his counters to natural law positions as refutations, as he treated
each as distinct from the others, so that he could ‘refute’ them one by one
in isolation. But it also led to the conclusion that the law has authority,
whatever its content.

33.2 Fuller as the Foil of ‘Positivism’

Part 1 of Positivism sets out the moral virtues of the separation thesis as
the central idea of the positivist tradition bequeathed by Bentham and
Austin to their heirs. Part 2 argues that legal theory must move away from
their command theory of law, not only because law is not a giant gunman
but also because the idea of law as the commands of a legally unlimited
sovereign fails to explain much of legal order, including the fact that
‘nothing which legislators do makes law unless they comply with funda-
mental rules specifying the essential law-making procedures’.13
Because Hart’s lecture was to an audience at Harvard Law School, in
part 3 he responded to the argument of American legal realists against
an allegedly positivist view of judicial interpretation that judges should
use formal, deductive methods to reveal what the law as a matter of fact
requires. However, the realists were not natural lawyers, and they did not
argue that their critique of such approaches to adjudication shows a
necessary connection between law and morality. Hart’s main response to
them relates to the separation thesis only insofar as he argues, first, that the
positivist distinction between law as it is and law as it ought to be does not
entail a view that judicial interpretation is a matter of judges determining
facts about what the law requires. Rather, because in such ‘penumbral’
cases there is no fact of the matter about what the law requires, judges must
rely on their own sense of right and wrong and legislate an answer. The
other ‘core’ cases – where people know what the law as a matter of fact
requires – do not for that reason get to court, which is why law can do its
job of organising our lives. This feature of law leads to Hart’s second
point – that realists tend to equate law with penumbral cases that, though

13
Hart 1983: 59.

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 768 David Dyzenhaus

the ‘daily diet’ of law schools, should not be confused with the ‘hard core of
settled meaning’ that is ‘law in some centrally important sense’.14
It is, then, Hart’s other aim in part 3 that is important to a defence of
the separation thesis. He wanted to nip in the bud the kind of natural law
position that Fuller was developing, which does not make moral standards
that are external to law the test for the validity of law, since it relies on an
argument about principles internal to legal order that condition the con-
tent of law. While Hart mentions Fuller in the text only at the very end,
his position is the implicit target throughout. He is the main foil of part 3
because his account of adjudication adopts the premise that judicial inter-
pretation in the penumbra is based on values, but he denies that the action
takes place in a penumbra.15 As Dworkin was to elaborate this kind of
argument, the judge is making explicit what had hitherto been implicit –
the moral resources the law contains that are fully capable of answering the
question posed to the judge. Hart’s response was and remained that social
values are not the same as morality. If the law is commonly used as the
instrument of morally obnoxious aims, the values inherent in it will be
obnoxious.16
In addition, it was Fuller’s early hints that there is an internal morality
to law with which law must comply that preoccupied Hart in part 517 and
it was his critique of legal positivism that most disturbed Hart. For when
Hart began his defence of the separation thesis by portraying legal positi-
vism as under attack for its tendencies to blind ‘men to the true nature of
law and its roots in social life’, to be ‘corrupting in practice’, ‘at its worst
apt to weaken resistance to state tyranny or absolutism’, ‘at its best apt to
bring law into disrepute’,18 he could cite very little evidence for this
proposition besides Fuller’s The Law in Quest of Itself and a short essay
by him,19 as well as two short essays by Radbruch.20
I shall now argue that the distance between Hart’s version of positivism
and a modern, secular natural law theory, with Radbruch as the exemplar,
reduces to vanishing point once legal positivism properly confronts the
natural law spectre who haunts Positivism. We can then reconfigure Hart’s
legal theory in a way that preserves its most important elements while

14
Hart 1983: 71. 15 See Hart 1983: 68–71. 16 See Hart 1983: 69–70.
17
Fuller 1940: 34–41. 18 Hart 1983: 50–1. 19 Fuller 1956.
20
Gustav Radbruch, ‘Die Erneuerung des Rechts’, 1947 and ‘Gesetzliches Unrecht und
Übergesetzliches Recht’, 1946. The latter is translated as Radbruch 2006.

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 33 Positivism and Totalitarianism 769

explaining why, in the absence of this reconfiguration, positivism as a

theory of law that insists on the separation thesis becomes ideological
positivism.

33.3 Hart on Radbruch

Radbruch argued that the positivist slogan ‘law is law’ was adopted by
German lawyers and that it explains their complicity in the Nazi rise to
power. His antidote, which became known as the ‘Radbruch Formula’, was
the thesis that extreme injustice is no law. Hart vehemently rejected
Radbruch’s claims. On his understanding, Radbruch, because of his experi-
ence of National Socialism, had recanted his pre-war commitment to legal
positivism and ‘naïvely’ embraced a natural law position, which Hart set
out as follows:

His considered reflections led him to the doctrine that the fundamental principles of
humanitarian morality were part of the very concept of Recht or Legality and that
no positive enactment or statute, however clearly it was expressed and however
clearly it conformed with the formal criteria of validity of a given legal system,
could be valid if it contravened basic principles of morality.21

Hart added that this ‘doctrine can be appreciated fully only if the nuances
imported by the German word Recht are grasped’. He had in mind the
distinction that English elides between enacted law, Gesetz, and Recht with
its connotation of legal right or justice. But he did not think it worthwhile
to explore these nuances in part 4, as he thought that Austin had shown
that natural law positions are ‘stark nonsense’ by the example of a man
condemned to death for a trivial offence, who claims that the law is not
law because immoral, but who is refuted because ‘the court of justice will
demonstrate the inconclusiveness’ of his ‘reasoning by hanging’ him ‘in
pursuance of the law of which [he had] impugned the validity’.22
Just in case his readers were not persuaded by this ‘academic
discussion’,23 Hart offered the example of a post-war German court’s
decision that he thought showed both the ills of deploying the Formula
and the virtues of an approach based on the separation thesis. In this case,
a court found guilty of the crime of illegal deprivation of liberty a ‘grudge

21 22 23
Hart 1983: 74. Hart 1983: 73. Hart 1983: 75.

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 770 David Dyzenhaus

informer’ – a woman who had turned in her husband to the authorities

during the war because he had said insulting things about Nazis, an act
made criminal by two Nazi statutes. Hart’s view, based on an incorrect
report of the decision, was that the court deployed the Radbruch Formula
to deny validity to the statutes, thus both circumventing the argument that
what the woman did was perfectly legal and obscuring the fact that the
court was offending against the ‘very precious principle of morality
endorsed by most legal systems’ –24 the rule against retrospective punish-
ment. If, Hart argued, one thought that the grudge informer should be
punished, the only way to do this honestly was to face up to the fact that the
Nazi statutes were valid law. That would require the legislature to enact
a ‘frankly retrospective law’ making criminal the act of informing.25 That
the Formula obscured this dilemma by pretending that a valid law is not
a law simply because of its injustice was, in Hart’s view, conclusive reason
to reject it; and he proceeded to his discussion of the nuances of ‘legality’ in
the next part of his essay as if it were a distinct topic.
This was a consequential deferral. Hart’s argument depends on ridding
Radbruch’s position of its nuances by conceiving it as Hart’s legal positi-
vism with a minus sign: the law of a legal order is its positive law, as
certified by the criteria of legal validity in its most fundamental rules,
minus those positive laws that we judge to be extremely unjust by the
standards of a moral position external to the law. Radbruch would, then,
differ from Hart only in that Hart says that citizens should disobey extre-
mely unjust laws, while for Radbruch there is no law to be disobeyed, which
makes him prey to the dire confusions that can be avoided only if we ‘speak
plainly’ in saying ‘that laws may be law but too evil to be obeyed’.26
But Hart was not responding to Radbruch’s actual position. In his Formula,
Radbruch asserted three main propositions and I will insert ‘Recht’, ‘Unrecht’
and their derivatives in square brackets to indicate where Radbruch deliber-
ately wished to convey law in the sense of legal justice or right.

(1) ‘The positive law [Recht] secured by legislation and power takes pre-
cedence even when its content is unjust [ungerecht] and fails to benefit
the people, unless the conflict between statute and justice [Gerechtigkeit]
reaches such an intolerable degree that the statute, as “flawed law”
[unrichtiges Recht], must yield to justice.’

24 25 26
Hart 1983: 77. See Hart 1983: 77. Hart 1983: 77.

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 33 Positivism and Totalitarianism 771

(2) ‘Where there is not even an attempt at justice [Gerechtigkeit], where

equality, the core of justice [Gerechtigkeit], is deliberately betrayed in
the issuance of positive law [positiven Recht], then the law is not merely
“flawed law” [unrichtiges Recht]; it lacks completely the very nature of
law [Rechtsnatur].’
(3) ‘For law, including positive law [positives Recht], cannot be otherwise
defined than as a system and an institution whose very meaning is to
serve justice [Gerechtigkeit].’27

Discussion of the Formula is often preoccupied with the question of

whether propositions (1) and (2) contain distinct formulas, the first having
to do with the tricky issue of whether enacted law has a content so
extremely unjust that it should not be applied, the second with enacted
law that explicitly states its commitment to injustice of a kind that clearly
betrays law’s ‘core’ mission of protecting equality, in which case it fails to
be law. But attention to Radbruch’s use of Recht, set in the context of the
discussion that immediately precedes it, suggests that these two proposi-
tions may be better understood as the two ends of a continuum of legality.
When Radbruch complained that positivistic thinking had dominated
lawyers in Nazi Germany, he had in mind ideological positivism, the view
that ‘law is law’ and thus anything that has the form of law ought to be
enforced or obeyed. This view, he said, excluded the ideas of ‘statutory
lawlessness’ [Unrecht] and ‘supra-statutory law’ [Recht]. But, he pointed
out, obligation and validity cannot be based simply on power and compul-
sion. They must be based ‘on a value inherent in the statute’.28
This is the value of justice, which is the reason we value the certainty that
statutes afford us. Even the fact that we value the certainty that only
enacted law can achieve must be understood as a requirement of justice –
as serving the public good of legal subjects – because without the certainty
that enacted law brings, we could not have that service. This good
Radbruch named ‘purposiveness’. But, he emphasised, ‘what benefits the
people is, in the long run, only that which law is, namely, that which
creates legal certainty and strives towards justice’.29 As proposition (3)
states, part of law’s striving for justice is that ‘equality’ – the ‘very core of
justice’ – is respected.

27
Radbruch 2006: 7. For the German original, see Radbruch 1973: 345–6.
28
Radbruch 2006: 6. 29 Ibid.

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 772 David Dyzenhaus

Hence, Radbruch finds three values inherent in law – certainty, purpo-

siveness and justice – with certainty occupying a ‘curious middle place’
since it is there to bring about both purposiveness and justice.30
Propositions (1) and (2) may not then so much set out distinct formulas
as presuppose a continuum of value conflicts from minor to major; and it is
only in the exceptional case of blatant extreme injustice that a judge
should make justice the test for the validity of law. What gives the excep-
tional case its character is that the law is not interpretable in a way that can
avoid finding that its purpose is to be an instrument of extreme injustice.
Up to that point, the judge will attempt to find an interpretation that
reconciles the certainty that positive law brings with the demands of justice
in so far as this is possible, thus preserving equality, the ‘core of justice’.
My claim here is supported, first, by the fact that, within proposition (1),
Radbruch refers to ‘the positive Recht secured by statute and power’. The
translation of ‘das positive, durch Satzung und Macht gesicherte Recht’31
as ‘the positive law secured by legislation and power’ not only makes this
part of the sentence redundant by reading it as the ‘positive law secured by
positive law’ but also rids it exactly of the nuances of Recht that Radbruch
sought to preserve. Radbruch’s point was that law that we might condemn
as unjust because our general moral position finds it to be so remains law
only as long the content of the law can be understood as preserving some
element of legal justice.
Second, Radbruch wished to understand from a juridical point of view the
arguments that German lawyers and judges were already engaged in making,
which did not rely on the claim that extreme injustice is no law but rather
sought to find an interpretation of the law that permitted them to reach what
they regarded as both legally and morally justified conclusions.32 They sought
to find in German law the interpretative resources necessary to get to the
conclusion that served justice, but without invalidating Nazi statutes. In this
light, Radbruch was not so much providing a ‘formula’ for judicial use as trying
to make juridical sense of judicial arguments in response to past injustice.
These arguments were set out in a long extract that Radbruch quoted
from the legal opinion of a prosecutor in a grudge informer case and
that formed part of the materials that Hart read in preparing his lecture.33

30
Ibid. 31 Radbruch 2006: 345–6.
32
For discussion of the actual cases, see Dyzenhaus 2008 and Pappe 1960.
33
See Radbruch 2006: 2–4.

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 33 Positivism and Totalitarianism 773

There is an interesting question, then, about why Hart distorted not only
Radbruch’s position by ridding it of its nuances but also the situation
that faced German lawyers and judges in post-war Germany. In addition,
had Hart consulted Radbruch’s Philosophy of Law of 1930, available
in a translation of 1950, he would have found that Radbruch, far from
recanting his pre-war positivism, did little more than bring out an implica-
tion of it, in which he had already stated that ‘even the validity of positive
law that is unjust and wrong cannot be maintained unqualifiedly; hence
the question of validity may be considered not only from the standpoint of
legal certainty but also [from] that of justice and [purposiveness]’.34
Fuller thought that Hart had misread both Radbruch and the situation
because he simply did not see that there was more wrong with Nazi law
than that it was used as the instrument of evil ends. Hart did not appreciate
that the Nazi system was so marked by abuses of legality that it was
plausible to suppose that it was not really a legal order.35 There is much
to this point. But even more remarkable is that Hart, in part 5 of Positivism,
could not help but recognise that a secular natural law position like
Radbruch’s is required if one wishes to understand law as a matter of
authority, though he stopped short of a full recognition because that
would have led to an abandonment of the separation thesis.

33.4 Hart’s Natural Law Theory

In part 5 of Positivism, Hart explored the challenge to the separation thesis

that arises when one analyses a ‘legal system considered as a whole’.36
Quoting Austin, he said that there are certain ‘fundamental notions’ that
are ‘necessary’ and ‘bottomed in the common nature of man’ and that any
legal system must take into account. They amount, in Hart’s view, to
‘simple statements of fact’, for example, that a legal system must ‘provide
sanctions for certain of its rules’ and that ‘the normally fulfilled assump-
tion that a legal system aims at some form of justice colours the whole way

34
Radbruch 1950. The translator has ‘expediency’ for Radbruch’s Zweckmässigkeit
(Radbruch 1950: 168–9) and I prefer ‘purposiveness’ from the translation in Radbruch
2006. Hart refers to this work in the German fourth edition of 1950 in Hart 1983: 50 n. 8,
but only as a source for the postwar essays that he discussed in part 3, using the translation
in Fuller’s Jurisprudence Materials.
35
See Fuller 1958: 650–7, 660. 36 Hart 1983: 78.

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 774 David Dyzenhaus

in which we interpret specific rules in particular cases’, so that ‘if this

normally fulfilled assumption were not fulfilled[,] no one would have any
reason to obey except fear (and probably not that) and still less, of course,
any moral obligation to obey’.37 As a result, ‘[t]he connection between law
and moral standards and principles of justice is . . . as little arbitrary and
as “necessary” as the connection between law and sanctions, and the
pursuit of the question [of] whether this necessity is logical (part of the
“meaning” of law) or merely factual or causal can safely be left as an
innocent pastime for philosophers’.38
Hart said that he wished to ‘go further’ by identifying two more char-
acteristics of legal order. First, given facts about human vulnerability
and needs, one will find in any legal order rules ‘forbidding the free use
of violence and rules constituting the minimum form of property’. Such
‘fundamental’ rules ‘overlap with basic moral principles . . . and so we can
add to the factual statement that all legal systems in fact coincide with
morality at such vital points, the statement that this is, in this sense,
necessarily so’.39 However, Hart thought that he could still easily distin-
guish his position from natural law because the latter wishes to ‘push the
argument’ yet ‘further’ than one about ‘survival’ and ‘assert that human
beings are equally devoted to and united in their conception of aims’, for
example, ‘the pursuit of knowledge, justice to their fellow men’. Hart
retorted that the ‘purposes men have for living in society are too conflicting
and varying’40 to support such an extension.
The second characteristic is that there is, ‘in the very notion of law
consisting of general rules, something which prevents us from treating it
as if morally it is utterly neutral’. Generality, Hart said, requires ‘[n]atural
procedural justice’, which consists of ‘principles of objectivity and impar-
tiality in the administration of the law’ that

are designed to ensure that rules are applied only to what are genuine cases of the
rule or at least to minimize the risks of inequalities in this sense . . .. This is justice
in the administration of the law, not justice of the law. So there is, in the very
notion of law consisting of general rules, something which prevents us from
treating it as if morally it is utterly neutral, without any necessary contact with
moral principles.41

37 38 39 40
Hart 1983: 79. Ibid. Hart 1983: 80. Hart 1983: 81–2.
41
Hart 1983: 81.

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 33 Positivism and Totalitarianism 775

But that does not threaten the separation thesis because:

a legal system that satisfied these minimum requirements might apply, with the
most pedantic impartiality as between the persons affected, laws which were
hideously oppressive, and might deny to a vast rightless slave population the
minimum benefits of protection from violence and theft. The stink of such societies
is, after all, still in our nostrils and to argue that they have (or had) no legal system
would only involve the repetition of the argument. Only if the rules failed to
provide these essential benefits and protection for any one – even for a slave-
owning group – would the minimum be unsatisfied and the system sink to the
status of a set of meaningless taboos. Of course no one denied those benefits would
have any reason to obey except fear and would have every moral reason to revolt.42

But, contrary to its intent, this passage in fact pushes Hart’s argument
‘further’ than one about ‘survival’ in the direction of ‘the pursuit of justice’
precisely because that move is required given that the ‘purposes men have
for living in society’ are so ‘conflicting and varying’. For why should we
think that law, on the assumption that it, more than the gunman situation
writ large, governs the lives of those in the group that get no protection and
who are deprived of it by ‘hideously oppressive commands’ backed by
force?
Moreover, if there are juridical reasons for thinking that, in the normal
case, ‘some form of justice colours the whole way in which we interpret
specific rules in particular cases’, it seems to follow that judges confronted
by an unjust law face a legal problem, not merely a clash between legal and
moral duty. Such a problem requires them to ask whether the law really has
that content although the legislature seems in fact to have stipulated it. If
their answer is ‘yes’, they are driven by legal duty to confront Radbruch’s
situation of extreme injustice, since if they apply that content to the
oppressed group, they are carrying out the gunman’s commands, not
implementing law.
Such questions become even sharper when Hart says, late in The Concept
of Law, in chapter 9 on ‘Laws and Morals’, that ‘a minimum of justice is
realized whenever human behaviour is controlled by general rules publicly
announced and judicially applied’; if law is to function as a system of social
control, its rules ‘must be intelligible and within the capacity of most to
obey, and in general they must not be retrospective’.43 He argues that both

42 43
Hart 1983: 624. Hart 1994: 206–7.

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 776 David Dyzenhaus

law and morals must have a ‘minimum content’ if they are to ‘forward the
minimum purpose of survival which men have in associating with each
other’ and that ‘in the absence of this content’, men would have ‘no reason
for obeying voluntarily any rules’.44 The point about reason is important
because we have to understand law as operating with reasons, not causes.45
These reasons must be addressed at least to the natural facts of human
vulnerability, approximate equality, limited resources and limited under-
standing and will.46 This ‘natural necessity’, he thus says, has to qualify the
‘positivist thesis that “law may have any content”’.47
Hart also says that judges ‘may often display’ what he calls ‘character-
istic judicial virtues’: ‘impartiality and neutrality in surveying the alter-
natives; consideration for the interest of all who will be affected; and
a concern to deploy some acceptable principle as a reasoned basis for
decision’.48 Hart is, I think, deliberately coy about the status of these virtues
within his general argument about the necessary minimum content of
natural law, just as in Positivism he referred to the principle against retro-
spective punishment as ‘a very precious principle of morality endorsed by
most legal systems’. That description allowed him to avoid recognising it
as a very precious legal principle, which, if a legal order failed to endorse,
would give us grounds for supposing that the order had a shaky claim to be
legal. But I assume that he sees the virtues as the characteristics of the
role of a judge who understands himself as operating in a system of
authority rather than a gunman situation, and who understands his legal
order as catering to the minimum content of natural law.
On Hart’s account in part 5 of ‘Positivism’, as developed in The Concept
of Law, such judges should come up with an answer to the legal question
that meets two criteria. First, it shows how the law responds to legal
subjects in a way that respects their subjectivity – their ability to respond
to reasons. Second, the answer rests on a justice-like general principle
supported by the relevant legal materials, a principle that shows that the
legal subjects are such because they are not outside the class whose inter-
ests the law protects, even if the protection is minimal.
Now imagine such a judge confronted by a law requiring the inequi-
table treatment of a whole group of people, for example one of the
segregationist statutes of the apartheid regime.49 As a matter of legal

44 45
Hart 1994: 193. See Hart 1994: 194. 46 See Hart 1994: 194–200.
47 48
Hart 1994: 199. Hart 1994: 205. 49 See Dyzenhaus 2010.

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 33 Positivism and Totalitarianism 777

duty, the judge must struggle to find an interpretation that displays both
consideration for the interest of all those who will be affected and
a concern to deploy some acceptable general principle, derived from the
relevant legal materials, as a reasoned basis for decision. It is a struggle
because a law that institutionalises inequality on its face does not display
such consideration and is hard to interpret in a way that displays some
acceptable general principle. That creates a tension internal to the legal
perspective of the judge, since the judicial virtues are prominent among
the norms that define the judicial role. Put most concretely, the judge will
have a hard time answering the legal subject who asks: ‘But, how can that
be law for me?’
One may paraphrase these passages by saying that if the commands
of the powerful are incapable of sustaining a claim to be exercised with
legal right on those within their power, the commands lack authority and
therefore start to lose their grip on their claim to legal status. For such
commands undermine the mutual relationship between protection and
obedience that Hobbes outlined at the end of Leviathan50 and that Hart
depicts as follows, in giving a snapshot in chapter 8 of The Concept of Law
of his argument to come in chapter 9:

It seems clear that the sacrifice of personal interest which such rules demand is the
price that must be paid in a world such as ours for living with others, and the
protection they afford is the minimum which, for beings such as ourselves, makes
living with others worthwhile. These simple facts constitute . . . a core of indis-
putable truth in the doctrines of Natural Law.51

Hart’s own treatment of this issue relied on a clear distinction between

an in-group that gets protection from the law and an out-group that
does not. In The Concept of Law, he suggested that the in-group could
be small, confined to the officials of the system, and the system would
still be a legal system, albeit in a ‘deplorable’ state.52 Only if there were
no one in the in-group at all would the system become one in which
there was the appearance of law but what passed for law had sunk to
‘the status of a set of meaningless taboos’. Hart thus did not attend to
the important issues that arise for legal philosophy when one is in the

50
Hobbes 1997: 491. 51 Hart 1994: 181, his emphasis.
52
Hart 1994: 117. Compare 90–1.

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 778 David Dyzenhaus

in-group for some purposes but not for others; when, that is, one is
a second-class citizen.53
Yet, it seems fair to say that Hart must hold the view that the normal case
of a legal order is one in which power is exercised authoritatively. To be
a first-class citizen, or full legal subject, in such an order is to be able to
accept that the legal order as a whole and its particular laws offer one the
kinds of reason that are understandable as addressing one’s interests. Even
when such subjects strongly disagree with the content of the law, they must
be able to recognise that the legal order serves the interests that are in the
character of a legal order to serve and that its laws are interpretable in light
of those interests. When they ask the question ‘But, how can that be law for
me?’, a judge mindful of the judicial virtues can give an answer.
If the only answer available is that the person must understand that they
are a second-class citizen, then, as suggested, judges are put in a proble-
matic position because it is not clear that they can play their role as judges,
which, as I have also suggested, also makes problematic the claim that the
person is governed by law. At this point, precisely Radbruch’s limit situa-
tion of extreme injustice, the problematic nature of the relationship of that
person to their fellow first-class citizens raises questions not only about
‘justice in the administration of the law’ but also about the ‘justice of the
law’, questions that go to the law’s status as law.
This argument may seem undermined by Hart’s insistence that in any
case in which the judge must display these virtues in responding to a legal
question raised by the parties, the judge must exercise extralegal discretion
as such a question will arise precisely because the judge is in the ‘penum-
bra’ where the ‘core’ of the positive law determines no answer. These issues
were the preoccupation in the debates in legal theory that Dworkin
initiated about ‘hard cases’. He sought to show that ultimately at stake in

53
Indeed, he did not seem to think that there was an issue – see his treatment of
a segregationist law in Hart 1994: 161. Second-class status is much more legally proble-
matic in one sense than the status of slavery, with the proviso that the slaves are relent-
lessly consigned to the status of objects or things. But slave-owning societies, societies in
which the institution of slavery is constituted by law, usually experience immense diffi-
culty in maintaining the enslaved group in a status beyond morality and law and therefore
beyond dignity. See, e.g., Buckland 1932: 62–6. Consider also the difficulties that our
society experiences with maintaining human beings such as children in less than full
status, or non-human animals in the status of things, while giving them some legal
protection against various kinds of bad treatment because we recognise that they share
certain attributes with us human animals, including the capacity to suffer.

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 33 Positivism and Totalitarianism 779

such cases is the question of the political ideal that law serves. In his view,
judges who endorse positivism will seek out ‘plain facts’ about legislative
intent to avoid imposing their own views on the law.54
Because positivists responded to Dworkin both by disowning any such
theory of adjudication and by asserting a categorical distinction between
a theory of law and a theory of adjudication, legal theory has long
appeared to be at an impasse. In addition, Dworkin’s positivistic critics
followed Hart in claiming that the moral decency of a legal order is
contingent on its political history. However, these responses assume
exactly the static model of legal order that underpinned Hart’s distortion
of Radbruch. The law of a legal order is its positive law, as certified by the
criteria of legal validity in its most fundamental rules, which leads to the
view that Radbruch’s position is merely positivism with a minus sign – one
subtracts from the positive law of the moment all those laws that are
extremely unjust by the standards of a moral position external to the law.
As I have indicated, Radbruch had a dynamic model of legal order in
which law is always in a process of becoming, as its officials seek to
maintain their ‘fidelity to law’55 where law is understood to have the
value structure composed of justice and purposiveness as well as certainty.
For such officials, especially judges, the separation thesis is of no help.
While judges must understand that their duty is to interpret the law as it is,
not as they would like it to be, they must also understand that the law –
Gesetz – is to be interpreted in a way that accords with justice according to
law – Recht.

33.5 Conclusion

It is ironic, then, that Radbruch, in his Legal Philosophy, commented that

‘the past age of legal positivism saw only the positivity and certainty of the
law and caused a long standstill in the systematic examination of . . . [the
purposiveness], not to mention the justice, of enacted law’.56 For that
comment applies with great force to positivism, as it applies to the theories
developed by Hart and his students since 1958, because they maintain the
static aspect of their theory of law by expelling anything dynamic, includ-
ing the pursuit of justice within the law, to an extralegal space where it can

54 55 56
See Dworkin 1986. Fuller 1958. Radbruch 1950: 111.

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 780 David Dyzenhaus

be considered as if it were a legislative act that strikes out anew, as in their

understanding of adjudication as quasi-legislative in nature.57
In Bentham and Austin, this expulsion made sense because their com-
mand theory of law explained law only as a matter of coercion. Law, one
might say, does not have authority but at most legitimacy, which it will
possess when and only when it transmits appropriate judgments about
utility made outside of law from the apex of the legal hierarchy to the
bottom. Judges must, on this view, equate the idea of justice according to
law with plain facts about the content of the value judgements that those
in power have legislated. It is for this reason that Austin, after having set
out the slogan that inspired the separation thesis – ‘The existence of law is
one thing; its merit or demerit is another’ – could use his example of the
man condemned to death as an illustration of why natural law thinkers
are talking ‘stark nonsense’.58 For, on his theory, law is no more than the
commands of an uncommanded commander backed by threats. But it is
altogether another thing for Hart, who rejected the command theory, to say
of the person objectified in this way that they should regard as authorita-
tive the directive that consigns them to prison and execution.
This is not the only time in Positivism that Hart found himself in the
grip of the command theory. In part 3, in explaining why a Fullerian theory
of adjudication is mistaken, Hart said that a judge in Nazi Germany might
have asked in a criminal matter, ‘What sentence would both terrorize the
public at large and keep the friends and family of the prisoner in suspense
so that both hope and fear would cooperate as factors making for subser-
vience?’ He noted that the ‘prisoner of such a system would be regarded
simply as an object to be used in pursuit of these aims’. But, he said, this
would ‘still be an intelligent and purposive’ decision and ‘from one point of
view the decision would be as it ought to be’.59
Hart’s point is that a Fullerian theory of adjudication suggests absurdly
that the values or purposes implicit in the positive law of a legal order will
turn out to be moral, a point that he was to repeat against Dworkin. But
this rare example of leakage from one part of Positivism to another – from
Hart’s discussion of the grudge informer case to his earlier treatment of
adjudication – in fact exposes his inability to escape from the command
theory of law. Consider things from the point of view of the prisoner who

57
It may not apply to positivism’s strange offshoot in ‘inclusive’ legal positivism.
58
Austin 1885 vol. I: 214–15. 59 Hart 1983: 70.

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 33 Positivism and Totalitarianism 781

has to regard himself as, in Hart’s own words, ‘an object to be used in
pursuit of these aims’. Why, like the condemned man in Austin’s example,
may the prisoner not draw on the resources of Hart’s theory and say that he
is the victim of a gunman, not a legal order that purports to exercise
authority over him?
Moreover, if one puts to one side the claim about judicial legislation that
is properly at home in a command theory of law, one can take both of
these problematic examples one step back from the situation of the man
already convicted by the judge and ask under what theory the judge should
decide to convict him.60 If judges accept Radbruch’s legal theory, or
a Fullerian or Dworkinian account of adjudication, or Hart’s account of
the judicial virtues, they will try to find the interpretative resources within
the law to avoid concluding that they have reached the limit situation in
which the content of the law is so extremely unjust that its status as law is
in doubt. Short of that situation, the law will have a moral quality to it that
is at odds with the separation thesis.
Somewhat paradoxically, then, it is the separation thesis that provides
the link between positivism as a theory of law and ideological positivism.
Ideological positivism is the product of two elements: first, a version of
the separation thesis – the claim that the law that governs us is the law
with the content it happens to have; second, the claim that law with that
content must be understood as authoritative. Moreover, from the perspec-
tive of the officials of the legal order, as well as other participants in it
including lawyers and those subject to the law, the separation thesis
understood as requiring that we view the law as ‘normatively inert’61 is
not an option. The law will claim authority over them, and, as Hart’s most
influential student Joseph Raz argued, it is the case not only that the law
necessarily claims authority but also that the claim is necessarily to legit-
imate authority.62
This is a point about practical authority. When judges tell a legal subject
what the law obliges the subject to do, they must be understood as asserting
not only that they wield authority but also that the authority is
legitimate.63 Hart saw the force of this point. But he worried that Raz’s

60
See Mertens 2002: 202–4. 61 Gardner 2012: 23.
62
See Raz 1994: 194. I therefore agree with Raz that the theorist’s perspective on law
presupposes the participant’s perspective, but I disagree with him about how to understand
that relationship.
63
See Raz 1983: 146.

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 782 David Dyzenhaus

account presupposes a ‘cognitive account of moral judgement in terms of

objective reasons for action’.64 ‘Far better adapted to the legal case’, he
asserted, is a non-cognitive theory, according to which ‘to say that an
individual has a legal obligation to act in a certain way is to say that such
action may be properly demanded from him according to legal rules or
principles regulating such demands for action’.65 He then confessed that an
idea of normatively inert authority is unsatisfactory, but he remained
insistent on the separation thesis.66
How is such insistence sustainable despite the facts about legal orders that
Hart acknowledges in part 5 of Positivism and those about the ‘minimum
content’ of natural law in chapter 9 of The Concept of Law, and despite the
force of Raz’s point about legal authority when it is exerted in practice? The
explanation is Hart’s conviction that the separation thesis sheds valuable light
on the morally complex situations faced by legal officials and subjects in
practice. That it can survive at all is in turn explained by its being a conceptual
claim that floats above the messy contingency of our world as we find it, and
so is immune to challenges from these otherwise inconvenient facts.
But we have seen that the separation thesis, far from shedding light,
cannot begin to explain how law complicates any moral situation. How, as
Fuller and Dworkin asked, can the mere existence of law introduce moral
complexity if law is normatively inert?67 By contrast, Hart’s concessions
to natural law do illuminate. But he supposes that they are not serious
concessions because they apply only to this empirical world and its human
inhabitants with the vulnerabilities that we happen to have. But Hart
himself does not and cannot keep to the conceptual side of the distinction
between the conceptual and the empirical. Most of his arguments for the
virtues of the separation thesis take place in our human world, and his
conceptual claims are as mysterious as any of the natural law confusions
that he had in mind when he allied himself with Bentham’s aim ‘to pluck
the mask of Mystery’68 from the face of jurisprudence.

64
Hart 1982: 158–9. 65 Hart 1982: 159–60.
66
See Hart 1982: 267. In an unpublished work, The Long Arc of Legality, I am elaborating an
account of legitimate authority that does not rely on realist assumptions about morality
and that is close in spirit to Hart’s non-cognitivism and his formal account of social
morality in chapter 8 of Hart 1994. Others are working to the same end though exploring
Hart as an ‘expressivist’ – Toh 2005. But, in my view, this account of morality is best
understood as pragmatist.
67
See Fuller 1958: 656; Dworkin 1981: 327. 68 Hart 1983: 49.

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 33 Positivism and Totalitarianism 783

Consider that in Positivism, in support of his appeal to the conceptual,

Hart suggests that we could conceive of a world in which we are like
giant armoured crabs, so that we would not have the vulnerabilities of us
soft-skinned human beings that lead us to make rules prohibiting violence,
and so on.69 But the issue at stake is what is law in our world as we find it,
populated by beings like us with the vulnerabilities that we happen to
have? We simply don’t care about crab-law. Nor does Hart most of the time,
for he was deeply concerned with analysing both the benefits and the
dangers for individuals who find themselves subject not only to the sheer
power of the modern legal state but also to its claim to rule as a matter of
authority.
My plea in this chapter is for philosophy of law to return to the task that
Radbruch and others set out to accomplish, namely, that of trying to
understand how a legal order can vindicate its claim to be an order of
legitimate authority, a task that Hart himself well understood, albeit through
the distorting lens of the separation thesis. Once that lens is removed,
philosophy of law can begin with a general theory of law that facilitates
service to that ideal. It can then inquire into the moral resources that are
offered by requiring government by law rather than by some other means.
And with that theory in place, one will be able to work out the details of the
place of the judiciary and other institutions in serving the ideal.
In other words, the place to begin is where Hart ended his main discus-
sion of the truth in natural law in part 5 of Positivism. From there, one can
work back through part 4 – how the legal order should respond to problems
of perceived injustice – to part 3 – the place of the judiciary and the role of
interpretation. But it is important to go even further to include the subject
matter of part 2 – how an understanding of law as a matter of authority
relates to the way in which, in any legal order, fundamental legal principles
condition political power so that, as Kelsen once put it, ‘might is trans-
formed into legal right’.70
But one should stop short of part 1 – insistence on the separation thesis –
for the two reasons that my argument here supports. First, it has the
perverse effect of turning right into might through the claim that law as
such has authority, whatever its content. Second, natural law positions
about law’s moral quality are not, as Hart charged, naïve. Rather, in their
different ways, such positions seek to elaborate the moral resources of

69 70
See Hart 1983: 80. Kelsen 1968 vol. 1: 339.

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 784 David Dyzenhaus

government under law that make it plausible to claim that legal order
should be understood not as the gunman situation writ large but as an
order that wields legitimate authority.

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