Legal Positivism Of Law

If there is one doctrine that is distinctively associated with legal

positivism, it is the separation of law and morality. The principal aim of
jurisprudential positivists has been to establish that the essential
properties of law do not include moral bearings. As opposed to classical
natural law thinkers and in response to recent theorists such as Lon
Fuller and Ronald Dworkin, positivists strived to dissolve any number of
apparently necessary connections between the law and morality. In H.L.A
Hart's seminal 1958 article on the Positivism and the Separation of Law
and Morals', he insisted that positivism is a theory of the nature of law,
not a theory of how lawyers should reason, judges should decide or
citizens should act. Hart took Jeremy Bentham and John Austin as his
main predecessors; he defended the insistence on the lack of necessary
connection between law and morality. Legal positivism indeed involves
nothing more than the contention that there is no necessary connection
between law and morality.' Hart therefore resolves to a single core positivist
legal thought that it is no sense a necessary truth that laws reproduce or
satisfy certain demands of morality, though in fact they have often done
so.' Many other philosophers, encouraged by Hart, treat the theory as the
denial of a necessary connection between law and morality. Jules Coleman

does not hesitate at all in ascribing this legal positivism thesis. This is
perhaps the prevailing view of legal positivists.

During the past decades, this prevailing view has come into
questions, it is held to be superficial and wrong. It has been criticised as
hiding the true nature of law and its roots in social life, others thought it
intellectually misleading and corrupting in practice. John Gardner, Hart's
first positivist successor in the Oxford Chair of Jurisprudence, has asserts
that the separation thesis is the propagation of a myth. He contends it to
be absurd and no legal philosopher of note has even endorsed it.' Even
some remarkable positivists, like Joseph Raz and his disciples have
questioned the importance and the very plausibility of an insistence on the
separation of law and morality. Other positivists are also in doubts of such
an insistence as a key component of positivist outlook. These uncertainties
put the thesis in a very vulnerable situation.

The idea of a necessary connection between law and morality is

nonetheless open to interpretation, and not all necessary' connections are
inconsistent

with

the

principles

expounded

by leading

positivists.

Therefore, the separation of law and morality will be considered in a

multiplicity of thesis, the discussion will maintain that the criticisms that

have marshalled on the separation thesis fail in casting doubts on its

significance and sustainability. Therefore, there is no necessary connection
between law and morality.