Separating Law and Morality: A Defence of Legal Positivism's Institutional Account of Law
| Pages | 18-29 |
| Date | 01 June 2026 |
| Published date | 01 June 2026 |
| Author | Jake Ellis Aurora |
| Subject Matter | Social Sciences |
Southampton Student Law Review
Volume 16, Issue II Autumn 2026
18
ARTICLE
Separating Law and Morality: A Defence of Legal
Positivism’s Institutional Account of Law
JAKE ELLIS AURORA†
University of Southampton
ABSTRACT. Legal positivism has long been hailed as providing a cogent account of the
institutional aspect of law. This article expands upon and defends this view while rebutting
the common claim that positivism fails to make sense of law’s moral aspect. Section one
establishes the conceptual boundaries between the institutional and moral aspects of law.
Section two demonstrates how Hartian positivism provides a universally applicable and
cogent account of the institutional aspect. Section three addresses and debunks the
criticisms of Finnis, Fuller and Dworkin. It argues that their assumption that a descriptive
theory of law must also be justificatory confuses the is and ought function of positivism.
The article concludes that positivism does not fail to account for morality but rather, by
decoupling legal validity from merit, positivism preserves the distinction necessary to
identify law in the first place.
Table of Contents
Introduction ....................................................................................................................... 19
1. What is the definition of legal positivism? ................................................................. 20
1.1. Legal positivism as a theory of legal validity .................................................... 20
1.2. Defining the institutional aspect of law ............................................................. 21
1.3. Defining the moral aspect of law ....................................................................... 21
2. How does legal positivism provide a cogent account of the institutional aspect of law?
........................................................................................................................................ 22
2.1. Why the positivist account of the institutional aspect is conceptually cogent ... 22
2.2. Hart’s positivist account of the institutional aspect............................................ 23
3. Does legal positivism fail to make sense of the moral aspect of law? ....................... 25
3.1. Is morality constitutive of law? .......................................................................... 26
3.2. The separability of law and morality.................................................................. 27
† LLB at University of Southampton. I would like to thank Jonathan Turner for his particularly
helpful comments on previous drafts and for engaging my interest in jurisprudence. I would also
like to thank Emily Willis and the editors of the Southampton Student Law Review for considering
this piece and for their comments. Any errors remain my own.
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