The separatist theory of law propounded by the legal positivists

constitutes a challenge to the normativity of the naturalist.

by Dr Yog Mahadeo
Introduction
The philosophy of law, sometimes referred to as jurisprudence is the systematic and scientific
investigation into law1. It is the knowledge of law as opposed to knowledge of the law (which is specific
law or specific legal systems). Jurisprudence is therefore analysis of the structure and concept of law2.
Legal theory is distinct from legal practice and is in the realm of the legal philosopher to explore the
philosophical significance and basis of the laws assumptions3.
Positivism and Natural Law are schools of jurisprudence that are often contrasted with each other,
providing substantive separate opinions. Positivism argues a distinct separation between law and morality
whereas Natural Law has its base in theories of morality, religion, justice and some degree of human rights
and human principles4.
Positivism sees no place for the theories of morality and religion since such theories are unenforceable
and should therefore not a factor in elucidation and enforcement of the law. The positivist school of
jurisprudence posits that a law acquires the status of law if it is so declared by a sovereign (to be law).
Legal positivism contemplates law and morality as different paradigms; if a law is enacted then it should
be followed, morality is irrelevant to the law. There is no distinguishing between a good or bad, right or
wrong law, that is, the law is never questioned for its morality.
Positivists assesses the validity of law by looking at the authority that created the law and whether the
agreed procedure was followed. However, it does not assess the law-making process and whether it is
valid - so long as the law making process is socially accepted. In instances where the law is rejected by
events (protests, revolts, etc.) the law is then not valid since social rejection invalidates the law-making
procedures and thus the laws themselves.
The naturalist school of jurisprudence believes that there are inherent laws that are common to all
societies and a representation of the morals of society forms such natural laws. Any action that is morally
wrong would be contrary to such natural law and therefore illegal. Such laws may or may not be written
or enforced, but enjoy a natural existence - whether they are enacted or not.
Natural Law protagonists question the positivist school on the lack of consideration for morality by asking
how a country can decide what law to pass, that is, what guides law-making if not morality?
It is this distinction (of law and morality) offered by the positivist that is the enigma to the normativity of
the Naturalist who cannot acquiesce to the formulation, existence or enforcement of law without
cogitation of morality and moral values.

Background
Legal Positivism has been largely developed in the early years by such legal luminaries as Jeremy Bentham,
John Austin and Hans Kelsen.

1
JG Murphy, JL Coleman, Philosophy of Law, an introduction to Jurisprudence, Westview Press Inc, 1990
2
Veena Madhav Tonapi, Textbook on Jurisprudence, Universal Law Publishing Co, 2010
3
Sean Coyle, George Pavlakos, Jurisprudence Or Legal Science?: A Debate about the Nature of Legal Theory, Hart
Publishing, 2005
4
Christopher Enright, Legal Technique, The Federation Press, 2002
Natural Law and its intimation with morality has a varied but old history which include the use of the term
natural law in the Socratic dialogue of Plato, Gorgias5 and Aristotles universal law. The development of
natural justice to natural law has been attributed to the Stotics6 and other philosophers like 17th Century
Hobbes and John Locke and more contemporary natural law theorists like Fuller.
These two schools have engendered wide debates whenever the philosophy of law is examined. The
eminent legal minds, L. A. Hart, Lon Fuller and others have provided a more modern substantive argument
to both schools, thus promoting and stimulating more debates.
Harts views helped to shape positivist jurisprudence. He maintained that a legal system can function
effectively without consideration of morality, or right or wrong, for example, Hart viewed the Nazi system
as a legal system even though it was discriminatory, since it was the law at the time. Hart was also
motivated to his stance by the work of German legal scholar, Gustav Radbruch who changed his views
from positivist to naturalist7.
Lon Fuller, another modern-day philosopher, promulgated the natural approach and took the forefront
on maintaining the importance of law and morality. He opined that the Nazi system was debunked by
post-war courts and could not be classified as law since they were arbitrary and tyrannical.
It can be said that Harts background as an English jurist and Fullers as an American jurist shaped their
opposing views. English Law would have evolved over a long period of time that was distilled from case
laws and where the letter of the law was important. The American Legal system emerged over a shorter
time span and is more codified. The two legal systems (English and American) also differ in a number of
ways, for example, Englands Equity courts are different from its Common Law Courts.
Hart, Fuller, Austin and others, utilised the grudge informer cases of the post-World War II Germany.
One such case involved a wife who informed on her husbands views about Hitler causing his sentencing.
After the collapse of the Nazi regime, the wife was tried for depriving the husband of his freedom. The
wifes defence was her requirement under Nazi statues to furnish such information. The Court of Appeal
held that the Nazi statute was contrary to the sound conscience and sense of justice of all decent human
beings.8 She was therefore not given protection under such statute. This decision formed a precedent in
other informer cases and was seen to be a triumph of natural law over positivism.9
Harts position was that the informer (wife) was protected under the statute of the time and therefore
she should either be not guilty (per statute) or there should be retroactive legislation that repealed those
statutes. Since retroactive legislation is repugnant to most criminal justice systems, and since it was the
law at the time, the woman may not be held for a breach of the operative laws. Hart opined that the
concept of morality as introduced by the Court of Appeal was absurd as to say a law was not a law when
it had to be followed.
The refinement and development of both schools of jurisprudence evolved through the contribution of
other philosophers. However the impact of Hart and Fuller remained monumental to the two schools and
to the continued analysis of whether morality and law ought to be accommodative of each other.

5
Michael Bertram Crowe, The Changing Profile of the Natural Law, The Hague, 1977
6
Charles H. McIlwain, The Growth of Political Thought in the West: From the Greeks to the End of the Middle
Ages. New York. 1932
7
H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 Harv.L.Rev.616 (1958)
8
Lon L. Fuller, Positivism and Fidelity to Law - A Reply to Professor Hart, 71 Harv. L. Rev. 658 (1958)
9
Anthony DAmato, Jurisprudence, A description and Normative Analysis of Law, Matrinus Nijhoff Publishers, 1984
Critically, the dissonance between law and morality as purported by legal positivists is strongly contested
by the legal naturalists and as we will see later, this dissonance is not so much a direction of positivism
since that theory prefers to not argue about morality.

Evolution of the Positivist and Naturalist theories

Eighteenth and nineteenth century legal thinkers Jeremy Bentham10 and John Austin11 are credited with
the early legal positivism school of thought. Later, Hans Kelsen also promulgated the disconnect between
law and morals, and Kelsen elaborated his pure legal positivism approach in juxtaposition with the theistic
approach of Aquinas determinative natural law12. He posited that the law did not require moral validation
to be legitimate.
Jeremy Bentham in his early documentation of the legal system (of his day) expressed horror that the
legal practitioners were excusing abuses by saying they were natural and inevitable13. Bentham saw
positivism as a liberating doctrine that exposes the contingency and mutability of the law.14 Benthams
position is apposite with that of Hobbes who saw ambiguity in law as unacceptable and any lack of legal
rational coherence is reflective of a system that could not be trusted15.
However it was Hart and his The Concept of Law among other works that fundamentally reshaped the
doctrine and its relationship with other legal theories. Harts approach reshaped the Austinian theory as
he attempted to forge a more modern theory by tempering logic and system with the realities of legal
rules and their unavoidable ambiguities.16
The central claims of positivism was attacked by others including the eminent Ronald Dworkin who
advocated an interpretivist approach to law and morality17. His Laws Empire argued a rebuttal to Harts
legal positivism.
The natural law theory would have been assessed and analysed by the positivists and the earlier jurists
(like Bentham) who points to the inherent danger in moral/natural law where a person can be confused
as to what is morally acceptable and what law ought to be. Bentham also posited that a natural law court
would take decisions on what they thought was best, leading to confusion18.
Through the years and the minds of these philosophers, one could discern their difficulty in
accommodating the challenges to Natural Law by the Positivists separatist approach to law and morality.
This challenge continues to fuel debates up to present time.

10
Jeremy Bentham, An introduction to the Principles of Morals and Legislation, 2015 via
http://www.earlymoderntexts.com/assets/pdfs/bentham1780.pdf
11
John Austin, Lectures on Jurisprudence, 1965, via https://archive.org/details/lecturesonjuris00campgoog
12
W. E. Conklin, The Invisible Origins of Legal Positivism, a re-reading of a tradition, Springer-Science+Business
Media Dordrecht, 2001
13
Supra note 4
14
Scott J Shapiro, Legality, Belknap Press of Harvard Univ Press, 2011
15
Sean Coyle, From Positivism to Idealism, A study of the moral dimensions of legality, Ashgate Publishing Ltd.,
2007
16
Clarence J Mann, The Function of Judicial Decision in European Economic Integration, The Hague, 1972
17
Ronald Dworkin, Freedom's Law: The Moral Reading of the American Constitution. Cambridge, Mass.: Harvard
University Press. 1996. Via Google Books.
18
Supra note 2
Essential elements of Positivism
Bentham19 as well as Hart, notwithstanding their positivist approach, admitted that legal systems were
influenced by moral opinions18. However they took steps to elaborate their distinctive position of Law in
its strict literal sense and without reference for morality. Bentham pointed out that natural law is nothing
more than a persuasive device used to mask peoples preferences20.
Bentham also linked laws with sovereignty whereby the sovereign is that body that is authorized to make
law and the people are in the habit of obeying the sovereign21.
Harts work however, provided distinctive arguments for legal positivism and the separation of laws and
morals. He debunked the natural law supporters who ignore the difference between law as it is and as it
ought to be. Hart puts the essential elements of positivism as22:
(i) The contention that laws are commands of human beings,
(ii) The contention that there is no necessary connection between law and morals or law as it is
and ought to be
(iii) The contention that the analysis (or study of the meaning) of legal concepts is worth pursuing
and to be distinguished from historical inquiries into the causes or origins of laws, from
sociological inquiries into the relation of law and other social phenomena and from the
criticism or appraisal of law whether in terms of morals, social aims, functions, or
otherwise.
(iv) A legal system is a closed logical system in which correct legal decisions can be
deduced by logical means from predetermined legal rules without reference to social
aims, policies, moral standards,
(v) The contention that moral judgments cannot be established or defended, as statements of
facts can, by rational argument, evidence, or proof.
Hart also pointed to the problems of the penumbra as the challenge presented by lack of precision of
words which may not be solvable by logical deduction and is the opportunity to examine what law ought
to be, providing an intersection between law and morals. This latter principle provided a nexus between
positivism and natural law theories23 and an exculpatory bridge to the normativity of the Naturalist.
The positivist approach has two distinct benefits24:
1) By requiring all laws to be written, there is the implicit expectation that, being written, will result
in its dissemination to the society at large, resulting in their education of their rights and
obligations. There should be no cause for surprise by the populace about any law.
2) Positivism curbs judicial discretion since judges have to make decisions based on the letter of the
law. If this is not done, there would be ambiguity and chaos.

19
Jeremy Bentham, A. Comment on the Commentaries
20
George Klosko. History of Political Theory: An Introduction: Volume II: Modern, 2nd Ed, Oxford University Press,
2013
21
Supra note 10
22
Supra note 2
23
Ibid
24
West's encyclopedia of American law, Volume 8; http://legal-dictionary.thefreedictionary.com/Positivism
The contention that there ought to be no necessary connection between law and morals (or law as it is
and ought to be), created the substratum for opposition by Natural Law thinkers who, in their abstraction
found any distinction or separation of law and morals as abstruse and unacceptable. It is important to
note that Bentham et al did address this distinction (moral vs law) from the perspective that any
amalgamation or conjoining of the two leads to confusion.

Essential elements of Natural Law

Natural Law differed from the positive law as it is more accommodative of morals and goes beyond the
letter of the law. This is the older of the two schools of jurisprudence25 and is often looked at as
individualistic and giving such rights that may be above and beyond the law26. These factors that makes
the positivist approach unacceptable to the Naturalist.
Natural Laws are oft conflated with common laws notwithstanding their distinction. However Natural
laws, natural justice and natural rights have all contributed to the eventual development of English
common law27. Natural law can sometimes be invoked to criticise judicial decisions but not to challenge
the interpretation of the law in that decision. The American law foundation can be also argued to be
founded in Natural Law based on their Declaration of Independence, the Constitution and the Declaration
of the Rights of Man and of the Citizen.

Critique of Positivism
A perversion of law was Thomas Aquinas description of laws without morals28 which was supported by
Lon Fullers belief based on the moral basis of law and that legal adherence is possible only if laws were
designed and developed with basis on morals29. Fullers concept of the importance of morals in the
shaping of legal thinking was critical to the natural legal theory30.
Fuller disagreed with Harts rigid approach to defining law. His acceptance of the role of morals in any
society included the process of creating law as well as the form of law all being morally acceptable and
therefore justifiable in natural law31. Fuller examined the precision of language of law as being imprecise
and therefore the definition of law cannot, as posited by Hart, be specific.
Fuller further posited that compliance with Law is directly related to peoples acceptance that such laws
are good morally. An acceptance that the laws are morally good encourages fidelity to law. In cases where
laws are anathema to morality, for example the Nazi regimes statutes which collapsed and challenged
jurists to examine the consequences of an immoral system versus the law itself, Fuller opines that the
choice should be based on what is good.
The challenge that faced the post-war jurists gravitated around the principles of morality. Radbruchs
dissection of the situation was that, on one hand, there was need to comply with the demands of order

25
Natural Law Revisited, University of Florida Law Review 34, 1982
26
Supra note 1
27
William Blackstone, Commentaries on the Laws of England, Clarendon press.
28
John Goyette, Mark Larkovic, Richard Myers (ed), St Thomas and the Natural Law Tradition, Catholic University
Press, 2004
29
Lon Fuller, The Morality of Law, ed., Yale University Press, 1969
30
Lon Fuller, A reply to Professors Cohen and Dworkin, Villanova Law Review 10 (1965)
31
Supra note 2
while on the other hand, to look at what is good order. This was the dilemma that faced the people during
the Nazi regime, that is, the moral duty to obey the law versus the moral duty to do what was right32.
Fullers view was that doing things in the right way leads to doing the right thing33.
The post-war views of Radbruchs on positivism was that it potentially paves the way for creation of a
dictatorship since the Nazi regime represented strong adherence to positivist jurisprudence and their law
was Law. These cases arising out of Germany provided the best of examples of the debate on law and
morality, positivism and natural law. Retroactive law, while not generally accepted, was seen as
expedient. Fullers stance on these issues was that the meanings of the words was important, no so much
the core or penumbra of the law.
Other opinions on Natural law and Positivist Law add to the flair of both schools, Natural law is sometimes
seen as if it were an element of politics and one that was more of a law-giving scenario. Natural law is
argued to be the rational basis or the approach to be used to explain positive law and therefore it is
argued, legal positivism include aspects of Natural law and vice-versa34.
Modern day legal practice sometimes take the relationship between Natural law and Positivist law as it
would the relationship between justice and law35.

Critique of Natural Law

Bentham who identified with positivism critiqued Natural law as being directly accessible to mans reason
yet people disagree with interpretation without any easy way to deal with such disputes. While Natural
Law is related to mans reason, legal positivism limits those laws to the sovereign36.
John Holmes criticised a weakness of the natural law jurists who accepts what has been familiar and
accepted by them and their neighbours as something that must be accepted by all men everywhere.37
This criticism of Holmes points to one of the core issues that positivists identify with (as a weakness of
Natural law). What is moral for some people may not be acceptable by others and therefore morality
cannot drive or influence the interpretation of law.

Reconciliation
It is widely accepted that the morality of Natural Laws seem to discourage the notion of evil regimes38.
Yet the evil regimes would have existed and there are extant regimes that are deemed to be evil by those
not in it. The rights of those citizens who have to follow their Governments order and Law is constrained
within the framework of the regimes enforcement.

32
Supra note 8
33
Michael S Moore, Educating Oneself in Public: Critical Essays in Jurisprudence critical essays in jurisprudence,
Oxford University Press, 2000
34
Pia Letto-Vanamo, Jan Smits, Coherence and fragmentation in European Private Law, Sellier European law
publishers, 2012
35
Ibid
36
Supra note 10
37
O. Holmes. Natural Law in Collected legal papers 310-16 (1921) further taken from Michael H. Hoffheimer,
Justice Holmes and the Natural Law, Routledge, 2013, pp 13
38
Supra note 4
Both Hart and Fuller had areas of reconciliation on the theory of hypothetical natural law39. Harts concern
of the survival of society and Fullers on the survival of the legal system may seem opposing foci, however,
Fuller did not appear concerned with even natural (classical) laws like thou shalt not kill from the
presumption that such statements express the aim of the law instead of being the law40. It is important to
note that notwithstanding his apparent dissonance with morality in law, Hart presented his The Concept
of Law as being morally neutral41 and without justification of moral or other grounds.42
Another point of reconciliation can be drawn from the fact that neither Hart nor Fuller were rights
thinkers43, that is they were not so much concerned about the rights of people as they were about the
position and application of law. Yet one would be inclined to think that Natural Law favours human rights.
The moderate legal positivists, though not endorsed by the strict positivists like Hart and Verdross, feel
that in the cases where a bad regime act in such a way that threatens and removes the security of their
citizens, then international tribunals can step in and take action44.
This moderate view taken by some positivists is seen to be reconciliatory to the strict stance of Hart et al.
However it does provide a different thinking to the evil regime concept in that law can give way to a better
rule so as to ascribe primacy to legitimacy.45 The moderate approach also looks at the distinctions
between a rule of law/rule of might, right/might, and legitimacy/legality46.
The moderate Natural lawyers also present a different approach in terms of their admission that there is
a wide variable of interpretation of natural law that are influenced by time and place47. This point to an
admission of the need for some bit of support of Law over morality, the latter which is influenced by any
number of factors.
However, the rigidity of some thinkers in both schools take positions that may be seen to be irreconcilable,
for example, Benthams liberating doctrine as the superiority of positivism is seen by the natural law
practitioners as eviscerating law of its morality48 and justice.
While one could argue therefore that these two schools of jurisprudence are parallel thoughts, there are
instances of reconciliation, although limited, in the role for morality whether in shaping the laws in the
first place, or in overarching interpretations of laws.
Both schools agrees that immoral legal systems collapses when a regime falls and thus unjust and immoral
legal system are unlikely to be long-lived. Both schools agree that morality plays a role, albeit restricted
role according to positivists.

39
Both Hart and Fuller protested against the classical natural law thinking. Their conception of natural law is
based on the presumption that people with to survive. Willem J Witteveen, Wibren van der Burg (ed),
Rediscovering Fuller, Essays on Implicit Law and Institutional Design, Amsterdam University Press, 1999
40
Willem J Witteveen, Wibren van der Burg (ed), Rediscovering Fuller, Essays on Implicit Law and Institutional
Design, Amsterdam University Press, 1999
41
Sean Coyle, George Pavlakos (ed), Jurisprudence or Legal Science?, Hart Publishing, 2005, pp15
42
HLA Hart, The Concept of Law, Cambridge University Press, 1991, pp183
43
Ibid
44
Journal of Legal Hermeneutics, International Justice and Interpretation, 2001
45
Hans Kelsen, Pure Theory of Law, 1967
46
Leila Nadya Sadat, ed, The theory and Practice of International Criminal Law, Essays in honor of M. Cherif
Bassiouni, Martinus Nijhoff publishers, 2008
47
Julius Stone, Human Law and Human Justice, Stanford University Press, 1965
48
Ibid
Non reconciliation and separation
Given todays varied forms of Governance across the world, one can be safe to say various regimes may
be classified as authoritarian, autocracy, dictatorship, democracy, monarchy, oligarchy or theocracy
among other adjectives.
The positivists could argue that the citizens trapped by those systems are forced to follow the diktat. They
have no choice and therefore the Law of their Regime is the Law. Natural law followers may argue that
what is evil cannot be justified by morality. However what is the choice of the citizens living therein, as
was within the Nazi system?
The fact that groups like Islamic States (IS) or the Taliban in the case of Afghanistan, can create a
governance structure may be obnoxious to others. IS, as had the Taliban, applied Islamic natural and
religious as well as Islamic morals to their modus operandi and their form of Governance and Government
can be said to be inimical to the normativity of the positivist.
The self-same introduction of one set of morals that is acceptable to millions of people via their
acceptance of the Quran, means a decimation of the freedoms desired by other people whose are defined
by another set of morals/natural laws. Which systems moral is therefore superior and acceptable?
The fact that the IS can create laws without impunity means that the people living within those regimes
have no choice but follow those laws, reminiscent of the rights of people under the Nazi regime. Both
Positivist and Naturalist approach are severely tested by such happenstances throughout history without
any clear resolution to the real problems faced by the same peoples that laws ought to protect.
Therefore notwithstanding the legal arguments of morality versus law, there is no clear solution to the
rights of individuals in an evil system who have to follow the law by diktat. The horizon is unclear in this
writers mind on how to interpret the moral laws of religious states that seem to oppress the rights and
freedoms of their people. Are these religious states enforcing natural laws or positivist laws? A post-
Regime legal conclusion would not have done anything for the protection of the peoples during the time
of their oppression. However, both schools of jurisprudence have vitiated any notion of repression being
acceptable to anyone.

Conclusion
Morality and Law will continue to engage legal analysts. Both seek to promote a desirable behaviour in
people.
The separation of law and morals formulates the Separatist Theory found in positivism which is inimical
to the Natural Law protagonist. Contemplation of Law without Morality goes against the grain of the
normativity of the Naturalist.
Hart et al maintains that integrity of law is sacrosanct whereas Fuller et al, maintains that the fidelity of
law must be preserved and that was only possible by involving morality and, as introduced by Dworkin,
the interpretivist approach49 that looks at the grounds of law for basis.
These two schools of thought have engendered debates for many years and will continue to do so,
propagating the core of the separation between Morality and Law.

49
Supra note 11
The separatist notion could however be dispelled from the perspective of the points of reconciliation
between these two schools of jurisprudence, particularly that immoral laws ought not to be followed
which was the acceptance of the role of morality by positivists. Both positivists and natural law theorists
accept that there would be instances of exceptions for either school. Importantly, the Natural Law
theorists agree that so long as positive law is not inconsistent with moral it should be followed. Positive
law theorists also agree that where the law (according to Hart) is so iniquitous it should not be followed.
It must be noted that the modernist approach decries the separatist notion as it seeks to inflict moral
reflection upon the significance of the law while accepting that only the sovereign has the legal dimension
to create law, thus germinating from the grounds of reconciliation of the two schools of thought.
In conclusion, the differences in these two schools of jurisprudence can be said support each other in
terms of a positivist approach to laws with a moral relevance to source and application of law. However,
from it stoic standpoint, legal positivism will continue to challenge the normativity of the naturalist.
Notwithstanding this, insofar as the practice of law do not circumscribe legal approach to normativity, the
two schools of thought would co-exist. As with differing juridical approach to any argument of law, the
natural law and positivist law theories will continue to engage and drive arguments and agreements as
legal practitioners seek to dissect the theories as they would the law.
While morality is itself a powerful modicum for evaluation of determinate action for the naturalists, the
legal system as a closed logical system will remain attractive to the positivist. Yet, the legal rational
coherence of law may continue to shape the modern approach toward dispelling of a separatist theory
that can emanate from the philosophical dichotomy posed by the two schools view of morality and law.
Still however, the concept of these two separate schools of jurisprudence may well remain on the menu
of legal philosophers through the continued evolution of humanity and its laws.
In the final analysis the objective of Law is a determinate factor and, as this paper shows, the end does
not justify the means and vice-versa when one contemplates the action of ruthless and religious diktat.
The normativity of the Naturalists may well continue to be challenged by the separatist theory posited by
the positivists as the paradigms of Law and Morality may well remain as ideals to be debated.