The Separability of Law and

Morality

Tommi Pikkujamsa
Philosophy of Law
Dr. Kenneth Ehrenberg
October 1, 2015

I. Introduction
Perhaps the greatest debate in the history of jurisprudence concerns the
relationship between law and morality. H.L.A. Hart, undoubtedly the most prominent
figure in the history of legal positivism, is responsible for outlining what many consider
to its central tenant; the separability thesis, which expresses the claim that there exists
no necessary connection between law and morality. In this paper, I will show how some
facets of morality inevitably enter into law, but contend that Harts separability thesis
nevertheless remains sound and continues to serve as perhaps the most valuable
insight into the legal landscape.

II. The Influence of Morality on Legal Systems

There are some aspects of morality which inevitably become ingrained into any
legal system. Hart begins his discussion of laws and morals by admitting this, stating, it
cannot be seriously disputed that the development of law, at all times and places, has in
fact been profoundly influenced both by the conventional morality and ideals of
particular social groups, and also by forms of enlightened moral criticism urged by
individuals, whose moral horizon has transcended the morality currently accepted.1 The
influence of both accepted social morality and wider moral ideals is exemplified by legal
systems such as that of the United States, where the ultimate criteria of legal validity
explicitly incorporate principles of justice or substantive moral values.2 Hart adds that

Hart, H. L. A. "Laws and Morals." In The Concept of Law, 185. Third ed. Oxford: Clarendon
Press, 2012.
2

Ibid., 204

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even in England, where the supreme legislature has no formal restrictions on their
power, the legislation may still conform to some moral principles.
While these legislative examples show how morality can abruptly influence the
law, it can also happen gradually and inconspicuously through the judicial process.
Judicial decisions often involve choices between moral values, rather than the
application of some single principle, because it would be foolish to think that morality
always has a clear answer to offer when the meaning of the law is in doubt.3 Though
some are reluctant to accept the notion that judicial activity is legislative, such activity
nonetheless clarifies the meaning of the law. As such, when this activity is influenced by
morality, the clarified meaning of the law is as well.

III. The Separability Thesis

Harts separability thesis is the notion that, it is in no sense a necessary truth
that laws reproduce or satisfy certain demands of morality, though in fact they often
have done so.4 Though one may be quick to argue that the above outlined inevitability
of moralitys influence upon law would falsify the separability thesis, there is an
important distinction which must be highlighted. As stated above, it is inevitable that
facets of morality will seep into the legal system. However, this is an extremely broad,
general claim; the assertion that some aspects of morality affect the legal system is not
equivalent to the claim that these aspects affect all of the legal system. In other words,
just because morality may and often does influence some laws, it cannot be said that it

Ibid.

Ibid., 186

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influences all laws. By extension, though morality may affect some laws, it cannot be
concluded that this is a necessary relationship. Therefore, the separability thesis
remains unaffected by this challenge.
It could be argued that the necessary connection between law and morality
arises from the criteria for legal validity, echoing St. Thomas Aquinas famous phrase,
an unjust law is no law at all. Indeed, as Hart mentions, the U.S. legal systems
ultimate criteria of legal validity explicitly incorporate[s] principles of justice or
substantive moral values.5 This seems to directly contradict the separability thesis, as
Hart maintains that it is not necessary that the criteria of legal validity of particular laws
used in a legal system must include, tacitly if not explicitly, a reference to morality or
justice.6 However, the existence of some morally iniquitous laws throughout history
(slavery comes to mind) cannot be disputed. If the criteria for legal validity was
ultimately base on morality, these laws would not have been valid. However, they were
enacted properly, clear in meaning, and satisfied all other proper criteria of validity.
Thus, these morally iniquitous laws were nonetheless legally valid. Because valid
iniquitous laws have existed and still exist in some parts of the world, it is in no way
necessary that the criteria for legal validity must include aspects of morality, and as
such, the separability thesis remains sound.

IV. Value of the Separability Thesis

Ibid., 204

Ibid., 185

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The separability thesis provides an incredibly valuable insight into the legal
landscape and society in general. If the separability thesis is accepted, one gains what
Hart calls a wider concept of law, which allows one in theoretical inquiries to group
and consider together as law all rules which are valid by the formal tests of a system of
primary and secondary rules, even though some of them offend against a societys own
morality or against what we may hold to be an enlightened or true morality.7 If a
narrower conceptone which excludes any iniquitous rules from lawis adopted, it
would hinder the study of law as a social phenomenon. Because the wide concept
allows for the invalidity of law to be distinguished from immorality, it enables one to
analyze the complexity and variety of moral issues in society, such as obedience to evil
rules and retroactive law. In addition to enhancing the theoretical study of law, the wide
concept, and thus the separability thesis, also assists in moral deliberation about law. As
Hart explains, those who accept the authority of a legal system look upon it from an
internal view and express their sense of its requirements in internal statements[such
as] I (You) ought, I (he) must, [or] I (they) have an obligation.8 By accepting the
separability thesis, any iniquitous laws can nevertheless be acknowledged as legally
obligatory, enhancing moral deliberations about whether to fulfill legal obligations or
uphold moral principles. The narrow concept would make it pointless to address any
legal obligations if one has moral reasons which urge against fulfilling it.9

Ibid., 209

Ibid., 203

Ibid.

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It could be argued that the narrow concept of lawthe rejection of the
separability thesisis beneficial in cases of retroactive punishment. For example, the
punishment of Nazi officials following World War II can be and was justified by the
narrow concept. If the court had taken a wider concept of law, the Nazi officials could
not have been punished for simply following the law. But by the narrow concept, as was
the courts opinion in the Nuremberg Trials, the legal obligations of Nazi law did not
justify the committing of crimes against humanity. However, if cases such as this are
considered in moral terms, then though the Nazi officials committed acts which morality
forbade, courts may very well be morally required to only punish those who did what the
law forbade. The adoption of each concept comes at its own price, but the wider
concept has the benefit of carrying with it an ability to clearly identify the issues at stake
legal obligation as opposed to moral obligation.

V. Final Considerations
Though the advantages and disadvantages of the separability thesis can be
debated at length, one thing becomes increasingly clear: its acceptance is more
beneficial to legal theory than its rejection. Because it denies any necessary connection
between law and morality, it allows for some relationship between the two. Though there
will likely never be a perfect theory of law, this simple fact proves the separability thesis
to be a definite step in the right direction.

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References
Hart, H. L. A. "Laws and Morals." In The Concept of Law, 185-212. Third ed. Oxford:
Clarendon Press, 2012.