Introduction
The positive school of jurisprudence, or legal positivism, is one of the most influential theories in legal philosophy. Its central claim is what is often termed the 'separability thesis': the idea that there is no necessary connection between law and morality. For positivists, the question of 'what is law' is a matter of social fact and distinct from the question of 'what the law ought to be'. This approach, championed by theorists such as John Austin and, more recently, H.L.A. Hart, seeks to provide a descriptive and analytical account of law as a social institution. However, this school of thought has faced sustained criticism since its inception. This essay will examine the principal criticisms directed at the positive school of jurisprudence. It will be argued that while positivism offers a clear and structured account of legal validity, its core weakness, and the focus of its most powerful critiques, is its strict separation of law from moral considerations, which fails to capture the full complexity of legal systems and judicial reasoning.
The Flaws in the Command Theory
An early and foundational version of legal positivism was put forward by John Austin in The Province of Jurisprudence Determined. Austin defined law as a species of command issued by a sovereign whom the majority of a society are in the habit of obeying, and which is backed by the threat of a sanction (Austin, 1995). This 'command theory' provided a simple and powerful empirical test for identifying law. However, its simplicity is also its major flaw, a point extensively developed by a later positivist, H.L.A. Hart.
In The Concept of Law, Hart (2012) dismantled Austin's theory, arguing it was an inadequate representation of a modern legal system. Firstly, Hart noted that not all laws are commands backed by threats. Many laws are power-conferring, granting individuals the ability to do things like make contracts, wills, or get married. These rules do not impose duties but provide facilities for people to realise their wishes (Hart, 2012, pp. 27-28). To describe contract law as a command to not break a contract, backed by a threat, is to distort its primary social function.
Secondly, Hart criticised Austin's concept of the 'sovereign' and 'habit of obedience'. This model cannot explain the continuity of law-making power; when one sovereign dies and is replaced by another, there is no established 'habit of obedience' to the successor, yet their first laws are still considered valid. Hart argued that this continuity is explained not by habits, but by the acceptance of rules that govern the transfer of legislative power. Finally, Austin’s theory cannot account for the persistence of laws long after the sovereign who created them is gone (Hart, 2012, pp. 61-64). These criticisms demonstrate that Austin’s early positivist model, while influential, is too simplistic to explain the features of a contemporary legal system. While Hart's critique comes from within the positivist tradition, it highlights a foundational weakness in early positivist thought: its attempt to reduce law to a single, simple formula.
The Separation of Law and Morality: The Natural Law Challenge
The most fundamental and enduring criticism of legal positivism concerns its central tenet: the separation of law and morality. This debate was famously crystallised in the exchange between H.L.A. Hart and Lon L. Fuller following the Second World War. The issue centred on the legal status of Nazi decrees. Positivists like Hart maintained that even grossly unjust laws are still legally valid, provided they are created according to the system's established procedures. For Hart, it is clearer to state, "This is law; but it is too wicked to be obeyed" (Hart, 1958, p. 617). This preserves the distinction between the law's existence and its moral merit, preventing the idea that if something is ‘legal’ it must also be ‘moral’.
Lon Fuller, a leading natural law theorist, strongly contested this view. He argued that law has an "inner morality" – a set of procedural principles that a system must meet to be considered a legal system at all (Fuller, 1969). These principles, which he called the 'eight desiderata', include requirements that laws be public, understandable, non-contradictory, and consistently applied. Fuller argued that the Nazi regime violated these principles so fundamentally that its system did not qualify as 'law'. Where a system departs radically from this inner morality, it becomes a system of arbitrary power, not a legal system. For Fuller, therefore, there is a necessary connection between law and morality, at least at a procedural level. A system that fails to meet these minimum moral standards cannot produce valid law. This criticism strikes at the heart of positivism by suggesting that the very concept of 'law' contains certain moral elements that cannot be separated from it.
Dworkin's Challenge: Law as Rules and Principles
A further powerful critique of positivism, specifically aimed at Hart's more sophisticated model, came from Ronald Dworkin. Hart described law as a system of primary rules (which impose duties) and secondary rules (which govern how primary rules are created, changed, and adjudicated), with a "rule of recognition" providing the ultimate criteria for legal validity (Hart, 2012). In 'hard cases' where the rules are unclear or 'open-textured', Hart claimed that judges have discretion and effectively legislate to fill the gaps.
Dworkin (1977) argued that this model was incomplete because it only sees law as a system of rules. He contended that law also consists of 'principles' and 'policies'. Unlike rules, which apply in an "all-or-nothing" fashion, principles have "weight" and provide reasons for deciding a case one way or another. A classic example Dworkin used is the American case of Riggs v Palmer (1889) 115 NY 506. In this case, a grandson murdered his grandfather to inherit under the grandfather’s will. The relevant statute governing wills was clear and made no exception for such a situation. A strict rule-based approach would have allowed the grandson to inherit. However, the court decided against the grandson, relying on the established legal principle that "no man should profit from his own wrong".
According to Dworkin, this case demonstrates that in hard cases, judges do not simply invent law using their discretion as Hart suggested. Instead, they are bound to consider a web of moral and political principles that are already part of the law. These principles guide them towards finding the 'right answer' that is consistent with the legal and moral fabric of the community. Dworkin's critique suggests that positivism's 'rule of recognition' cannot account for the role of these moral principles. If judges are bound by them, then they are part of the law, and the strict separation between law and morality that positivism insists upon breaks down.
Conclusion
The positive school of jurisprudence has been subject to powerful and persistent criticism. Early versions, such as Austin's command theory, were shown to be too simplistic to account for the complex nature of modern legal systems, a point effectively made by Hart himself. More fundamentally, the central positivist claim of a strict separation between law and morality has been challenged from multiple angles. Natural law theorists like Lon Fuller argue that a system that wholly disregards procedural morality ceases to be a legal system at all, using the example of Nazi Germany to powerful effect. Furthermore, Ronald Dworkin’s critique suggests that positivism fails to recognise the essential role that moral principles play within the law itself, particularly in judicial decision-making in difficult cases. These criticisms collectively highlight that while legal positivism provides a useful analytical tool for identifying law based on its source and form, its rigid exclusion of morality creates a picture of law that appears detached from the reality of legal practice and the expectations of justice that citizens place upon their legal systems. The enduring strength of these critiques shows that the relationship between law and morality remains the most debated and unresolved issue in jurisprudence.
References
Austin, J. (1995) The Province of Jurisprudence Determined. Cambridge University Press.
Dworkin, R. (1977) Taking Rights Seriously. Harvard University Press.
Fuller, L. L. (1969) The Morality of Law. Revised edn. Yale University Press.
Hart, H. L. A. (1958) 'Positivism and the Separation of Law and Morals', Harvard Law Review, 71(4), pp. 593-629.
Hart, H. L. A. (2012) The Concept of Law. 3rd edn. Oxford University Press.
Riggs v Palmer (1889) 115 NY 506.
Wacks, R. (2020) Understanding Jurisprudence: An Introduction to Legal Theory. 6th edn. Oxford University Press.
