The Separability of Law and Morality as an Intriguing Conundrum within Legal Positivism: Lessons from The Concept of Law
| Author | Thomas Yeon |
| Position | LLB '18, LLM in Human Rights Law '19 |
| Pages | 63-73 |
2019 LSE LAW REVIEW 63
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The Separability of Law and Morality as an Intriguing
Conundrum within Legal Positivism: Lessons from The
Concept of Law
Thomas Yeon*
ABSTRACT
This essay critically examines HLA Hart’s conception of the relationship between law and
morality as delineated in his most famous work, The Concept of Law. In evaluating his
contention that there is no necessary conceptual connection between law and morality, Hart’s
conceptions of the ‘minim um content of natural law’ and difference between legal and m oral
obligations will be analysed. It will also examine the moral implications of his account of ‘internal
point of view’, which is the view of individuals who see rules as standards of appraisal of their
own and others’ behaviour. This essay seeks to reveal the problematic nature of Hart’s contention
on both normative and methodological grounds. It will, however, also defend that his contention
remains a jurisprudential conundrum in understanding the role of law in the social context.
INTRODUCTION
As one of the most prominent jurists of the twentieth century, Hart
made an undeniable contribution to the philosophical clarification and
development of legal positivism.1 The aim of this essay, however, is not merely to
sketch his account of legal positivism and the arguments against it. It focuses on
his ‘separability thesis’2 (hereinafter, Hart’s thesis) that ‘it is in no sense a necessary
* LLB (Durham) ‘18, LLM in Human Rights Law (LSE) ‘19. Many thanks to Professor William Lucy
for his insightful comments and guidance during the writing process. Any errors or omissions remain
my own.
1 Klaus Füβer, ‘Farewell to Legal Positivism’ in Robert George (ed), The Autonomy of Law: Essays on
Legal Positivism (OUP 1999) 119.
2 Leslie Green, ‘Positivism and the Inseparability of Law and Morals’ (2008) 83 NYULR 1035, 1041.
Hereafter, ‘ST.’
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