Positivism, Legal Validity, and the Separation of Law and Morals

• Published date: 01 June 2014
• Author: Giorgio Pino
• DOI: http://doi.org/10.1111/raju.12044
• Date: 01 June 2014

Positivism, Legal Validity,

and the Separation of Law and Morals*

GIORGIO PINO

Abstract. The essay discusses the import of the separability thesis both for legal

positivism and for contemporary legal practice. First, the place of the separability

thesis in legal positivism will be explored, distinguishing between “standard

positivism” and “post-Hartian positivism.” Then I will consider various kinds of

relations between law and morality that are worthy of jurisprudential interest, and

explore, from a positivist point of view, what kind of relations between law and

morality must be rejected, what kind of such relations should be taken into account,

and what kind of such relations are indeed of no import at all. The upshot of this

analysis consists in highlighting the distinction between two different dimensions

of legal validity (formal validity and material validity respectively), and in pointing

out that the positivist separability thesis can apply to formal validity only. On the

other hand, when the ascertainment of material validity is at stake, some form of

moral reasoning may well be involved (here and now, it is necessarily involved). The

essay concludes with some brief remarks on the persisting importance of the

positivist jurisprudential project.

What is the significance for contemporary positivistic theory of the “separability

thesis”—the thesis of the non-necessary connection between law and morality? It

is well known that the separability thesis is unanimously regarded as the hallmark

of legal positivism, one of its central tenets and its most important methodological

commitment.1Still, were one to consider more closely the standing of the separa-

bility thesis in legal positivistic jurisprudence, one would notice the following

interesting points:

* Earlier versions of this essay were presented at the workshop on “Post-Positivism and the

Law”, Edinburgh Law School (May 2011), where I especially benefited from comments by

Claudio Michelon, Gianluigi Palombella, Paolo Sandro, and Neil Walker; and at a Jurispru-

dence seminar at the European University Institute, Florence (December 2012), where I greatly

profited from comments from the audience, and from perceptive observations by Dennis

Patterson and Giovanni Sartor. I am also indebted to Bruno Celano, Giulio Itzcovich, Matthew

Kramer, Dimitrios Kyritsis, Ralf Poscher, Aldo Schiavello, and an anonymous referee, for

extremely helpful written comments.

1Hart 1983b; MacCormick 1981; Coleman 1982; Leiter 2007a, 122; Marmor 2001, 71: “There

are many versions of legal positivism but all of them subscribe to the so-called separability

thesis.”

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Ratio Juris. Vol. 27 No. 2 June 2014 (190–217)

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(i) For a certain period in the history of legal positivism (during what I will

call the age of “standard positivism”) the separability thesis went basically

unchallenged2: It was unquestioningly supported by all legal positivists

without the need for any important qualification, specification, or reserva-

tion. So much so, that standard positivism is sometimes identified, rightly

or wrongly, with the separability thesis tout court.3On the other hand, over

the last thirty years the separability thesis has become one of the most

debated and contested topics among legal positivists4(while of course being

still fiercely contested also by anti-positivists: see Dworkin 1986; Alexy

2010).

(ii) While the original import of the separability thesis was ethical-political as

well as scientific in character, the more recent positivistic treatment of the

separability thesis is mainly a conceptual one: the thesis is now considered

as a conceptual truth as far as positivistic theories of law are concerned, or

it is regarded as part of a purely conceptual inquiry into the nature of law.5

(iii) While originally legal positivists used to proclaim the separability thesis in

its widest and most generic terms, more recently legal positivists have

recognized that as it stands the separability thesis is irremediably ambigu-

ous: if taken at face value, it could mean many different things, some of

them important, some others trivial, and some others utterly false.6Accord-

ingly, some legal positivists have tried to articulate the general separability

thesis with some more specific requirements, claiming that only some of

them really belong to the positivistic enterprise.7

(iv) There seems to be some discomfort, even in the positivistic camp, with

regard to the overwhelmingly conceptual treatment that the separability

thesis has received in the contemporary positivistic debate, namely, the

debate that runs along the inclusive/exclusive positivism divide. The con-

ceptual turn in the positivistic debate has been considered—even by those

legal theorists who are broadly sympathetic to the positivist project—as

exceedingly subtle, dry, and remote from the normative and empirical

2Unchallenged, that is, within the positivistic camp. Of course, the separability thesis was

strongly disputed by anti-positivists. See, for instance, Radbruch 2006; Fuller 1958; 1964.

3See Hart 1961, 185–6: “here we shall take Legal Positivism to mean the simple contention

that it is in no sense a necessary truth that laws reproduce or satisfy certain demands of

morality.” See also Green 2005, 570: “the denial of a necessary satisfaction relation [.. .] was

Hart’s compact definition of legal positivism” (emphasis in the original).

4Contrast Lyons 1993, 64 (“the meaning of the separation thesis [. ..] may seem perfectly

clear, and this may explain why the doctrine has received little systematic attention”), with

Green 2005, 570 (“no other position in general jurisprudence has received as much attention

in the last 25 years”), and Schauer 1998, 66 (“Although all versions of legal positivism insist

on the conceptual separation of law and morality, the nature of that separation is simulta-

neously obscure and contested in much of the positivist literature”).

5This conceptual turn in the separability thesis, and in legal positivism generally, is aptly

discussed in Tamanaha 2007; see also Schauer 2011.

6Contrast Hart’s quote supra, n. 3, as well as Waldron 1999b, 165 (“Positivism denies

any necessary connection between law and morality”), with Gardner 2001, 223 (“This thesis

[viz., that there is no necessary connection between law and morality] is absurd and no

legal philosopher of note has ever endorsed it as it stands”).

7See, for instance, Lyons 1993; Green 2003, 2008; Marauta 2004; Coleman 2007, 582.

The Separation of Law and Morals 191

© 2014 The Author. Ratio Juris © 2014 John Wiley & Sons Ltd.Ratio Juris, Vol. 27, No. 2