June 15, 2018
Both Austin and Hart explain how they believe law and morals are separated. In the "Province of Jurisprudence Determined," Austin writes: "The existence of law is one thing; its merit or demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry (p. 18). While in "Positivism and the Separation of Law and Morals," Hart writes: "What both Bentham and Austin were anxious to assert were the two following two simple things: first, in the absence of an expressed constitutional or legal provision, it could not follow from the mere fact that a rule violated standards of morality that it was not a rule of law; and, conversely, it could not follow from a mere fact that a rule was morally desirable that it was a rule of law" (p. 59). I have seemed to always disagree with Austin’s views whether it be in comparison to Aquinas or Hart. In regard to the arguments around the separation of law and morality, I find Hart’s argument more convincing and compelling than Austin’s.
Austin believes that humans in society must be obedient to laws set by their political superiors and that there should be punishment for disobeying these laws regardless of if they follow a moral standard or not (Austin, 14). If a law is established and enforced, then it is a proper law. Austin’s idea does not mean that merits are unimportant to the law; however, the merit or demerit of a law does not prevent it from existing in a legal system. Austin believes a legal system should exist of political superiors regardless of the justice, democracy, or rule of the law.
Hart deconstructs Austin’s command theory and has objections to the separation of law and morals. He uses the example of Penumbra cases and of a law that forbids one to take a vehicle into the public park. What defines something as a vehicle in regard to this law? Penumbra cases can influence many different problems such as decisions on same sex marriage as well as the endangered species act. This touches upon the intersection of law and morality, and the determination of what a law “ought to be”, thus pointing out that Austin ignored the problems of penumbra. A second objection Hart had was regarding unjust laws. He uses the example of Nazi rule. The Nazis believed that racial distinctions were relevant and reflected the morality of their society. Therefore, they were entitled to discriminate and still claim it was treating like cases alike. Hart argues that the question of what law is must be separated from the question of whether it is moral or just. Hart writes “…though this distinction is valid and important if applied to any particular law of a system, it is at least misleading if we attempt to apply it to "law,"… and that if we insist, on the narrower truth, we obscure a wider truth. … we have learned that there are many things which are untrue of laws taken separately, but which are true and important in a legal system considered as a whole. For example, the connection between law and sanctions and between the existence of law and its "efficacy" must be understood in this more general way” (Hart, 68). This is his objection that morality justifies the legal system as a whole.
I believe that there is a separation between law and morals, but as Hart argued, there is a connection between the two that must be understood. A law is not a rule of law because it is morally desirable but looking into the objections highlights exceptions that influence our legal system as it is today.
Hart, Positivism and the Separation of Law and Morals
Austin, Province of Jurisprudence Determined