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A general recipe for life under the government of laws.1 How much morality can there be in law?"
(A look at the Separation Thesis and the Hart-Devlin Debate on the Enforcement of Morals)

The never-ending search for the ‘perfect’ law continues as successive generations of legal theorists add
more to the table, either by disapproving of their predecessors or ‘improving’ their formulations of an
ideal governance. This paper is concerned with two main theories put forward; the Separation Thesis
supported by legal positivists and the Moral Enforcement Thesis, suggested by natural lawyers.
Essentially, the discussion is centered around the heart of general jurisprudence; the quest to find the
best form of law that would suit both the individual and the society as a whole. The attitude throughout
is unfortunately, not of utopian nature – and while it is suggested that the idea of an ideal legal system
should be abandoned, it is also proposed that although not perfect, the law as we currently have it, is
the best it can be. Conclusively, it comes down to the conflict between legal positivism and natural
law. The central ideologies discussed are of Jeremy Bentham, John Austin and Herbert Hart contrasted
with the opposing group of natural law disciples, Lord Patrick Devlin and the most recent and
significant critic of positivism, Ronald Dworkin. The outcome of this examination is simultaneously
optimistic as it is skeptical, leaning towards legal positivism – not as a primary choice of society
control, but as an eleventh-hour decision, acting as a counteragent when natural law fails. Albeit, it is
maintained that morality and law can not be isolated from one another, “The assertion that you cannot
legislate morality is just such a notion. No matter how often one hears that you cannot legislate
morality, the truth is that you can legislate nothing else.”, Michael Bauman.2

Natural law is concerned with the intersection between law and morals, seeking a world where
individuals strive to lead a good and flourishing life by knowing the distinction between right and
wrong, the just and unjust. Legal positivism, on the other hand, focuses on the legal and the illegal,
drawing a clear line between what the law ought to be and what it is3. When discussing the conception
of law and its content, one can easily diverge into other, equally grey fields of legal philosophy: should
there even be a law? If we’re against it, why do we obey it? The truth is, that the law is necessary,
indeed, imperative. A person asking for no law could be compared to a child asking for no curfew. The
question is how a law designed for everyone ought to be built.

1
H. L. A. Hart, (with reference to Jeremy Bentham) Positivism and the Separation of Law and Morals, Harvard
Law Review, Vol. 71 (1958), pp.593-529
2
Michael Bauman in Beckwith F. J, Craig W.L. and Moreland J.P., To Everyone an Answer: A Case for the
Christian Worldview, Intervarsity Press, 2004., p.254.
3
Raymond Wacks, Jurisprudence, Blackstone Press Limited, 1999
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The name of the Separation doctrine can be misleading. It suggests the implausible idea that law and
morals are independent from one another. Every legal theorist understands that law and morality
interact on some level. One cannot exist without the other - what the law requires and allows has some
effect on our views about the morality of conduct, and moral convictions have some effect on what the
law requires and allows. The result of such causal interaction is some overlap between the law of a
community and moral views within it. Presumably, every legal theorist wants the law to be shaped,
directly or indirectly, by sound moral principles. The leading positivist, Hart, suggested that laws are
commands of human beings and that there is no necessary connection between law and morals. 4 It is
not surprising he was faced with much criticism, given the extremity of his view. Nevertheless, he
outlined some fundamental and very realistic characteristics of the human condition; we are all
susceptible to physical attacks, we are selfish, we cannot be relied upon to cooperate with our fellow
men and even the strongest must sleep at times5. These factors alone cross out the attainment of natural
law. Lord Devlin’s ‘right-minded’ or ‘reasonable’ man6 is considered by natural lawyers as a citizen
with their morals set straight. In the eyes of positivists, the ‘reasonable’ or rather, ‘common’ man, is
one who thinks only about his own well-being and given the freedom, he would abuse it. For there to
even be a possibility of justice, the law needs to be built upon objective grounds. Norman St John-
Stevas claims that, “the most important and obvious difference between law and morality lies in the
sanctions imposed”.7 What if positivists ceased to see the law as a separate body, and natural lawyers
gave up on the idea of injecting morality into every human being? Let us assume that morality and the
law are the same body. Instead, let us separate that body into organs in order of priority. There are
organs which we can’t live without, and others that are dispensable. A skeleton holds us up and the
heart and brain puts all the rest in motion. We all need these to function, making them universal
essentials. In place of separating law and morality, why not separate legal morals into the objective and
subjective? It is safe to say that nobody wants to be killed, hurt or robbed without their consent. If we
were to simplify the law and narrow it down to the root we could say that the entire law stems from the
crime of theft. We do not want to be robbed of our freedom, life, possessions or health. This is where
Mill’s harm principle comes into play; ‘The law is not to interfere with a man unless what he did
caused harm to others’8. The law, inherently protects one, basic principle – the Silver Rule advocated
by Confucius, “What you do not wish for yourself, do not do to others."9, a variant of the Golden Rule

4
Herbert L. A. Hart, Positivism and the separation of law and morals, (1958) 71 Harv Lrev 593, 601 n.25
5
Herbert L. A. Hart, The Concept of Law, Oxford University Press, (1997), p. 146
6
Lord Patrick Devlin, The Enforcement of Morals, Oxford Paperbacks (1968), p. 102-123
7
Norman St John-Stevas, Law and Morals, Hawthorn Books, (1964), p.17
8
John Stuart Mill as cited in Patrick Devlin, The Enforcement of Morals, Oxford Paperbacks (1968), p. 103-4
9
Confucius as cited in Mihai Spariosu, Exploring Humanity – Intercultural Perspectives on Humanism, National
Taiwan University Press, (2012), p.70
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scripted in the Old Testament. Devlin believed that when the law, in distinguishing the right from the
wrong, could not appeal to any absolute authority outside itself as justifying the division and all that
was previously settled by divine law was thrown open to debate when admitting freedom of
conscience.10 This accounts for another distinction between natural law and positivism. A positivist
does not accept the notion of a conscience and treats the individual methodically – a reward for good
comportment and a punishment for crossing the line. In that case, why not make us all wear shock
collars on our necks to prevent us from breaking the law the moment we intend to? Of course, nor
Hart, nor Bentham or Austin had the intention of creating a world without a place for happiness. On
the contrary. In accordance with the utilitarian principle, Bentham formulated the thesis of legal
positivism as a jurisprudential tool in his task of reforming the legal system.11 Utilitarianism is known
to have much in common with hedonism, and although it may in most cases cross paths with
communism, it seems appropriate that it exists in the law to some extent. This pursuit is often criticised
today, with minorities feeling ignored by the law – however, the case with utilitarianism is that it
manages to cover an entire population in one way or another. A smoker may feel it is unjust to have a
ban to smoke indoors, but on another occasion, that same individual may be compensated for a
fraudulous deal that they have been a victim of. Returning to Bentham’s idea of a complete law – it is
regrettably, unrealistic, as the law is divided into specific, smaller laws affecting different individuals.
Nonetheless, legal positivism will always be guided by utilitarianism, particularly in cases were one
individual constitutes a threat to a number of others. The mission of legal positivism is not to promote
“fidelity to law.” It should be oriented only to truth and clarity—what Hart called “a sovereign virtue
in jurisprudence.” Some maintain that the separability thesis cannot characterize positivism for it is
“absurd…no legal philosopher of note has ever endorsed it.”12 Amid such cacophony, it was perhaps
to be expected that some onlookers find the half-century debate about the separability of law and
morals “entirely pointless.”13 The separability thesis is neither ambiguous, absurd, nor obvious. On the
contrary, it is clear, coherent, and unfortunately, false. Yet, when the debate about the best possible
legal system becomes too overwhelming, suddenly Austin’s proposition of the Command Theory
seems like the light and the end of the tunnel. It takes away any moral responsibility from an
individual, taking off the weight of our shoulders – we no longer have to feel like good people, we
need only be obedient pets. Some consider Austin’s scientific province of jurisprudence liberating,
some say it constrains their humanity. Perhaps, while Austin’s approach seems to be the ‘easy way

10
Patrick Devlin, The Enforcement of Morals, Oxford Paperbacks (1968), p. 86
11
David A. J. Richards, The Moral Criticism of Law, Dickenson Publishing Company, Inc. (1997), p. 15
12
John Gardner, Legal Positivism: 5 ½ Myths, 46 American Journal of Jurisprudence (2001),223.
13
Klaus Füßer, Farewell to ‘Legal Positivism’: The Separation Thesis Unravelling, in Robert P. George, ed., The
Autonomy of Law: Essays on Legal Positivism (Oxford: Clarendon Press, 1996), p.120.
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out’ and defeatist , it is also the most realistic perception that cuts down to the simple operating
mechanics of a regulatory system. To quote Raymond Chandler, “The law isn't justice. It's a very
imperfect mechanism. If you press exactly the right buttons and are also lucky, justice may show up in
the answer. A mechanism is all the law was ever intended to be."14 ...And a mechanism is all that it is.
Yet, the ‘conference’ on the Enforcement of Morals doesn’t seem to end as natural lawyers refuse to
give up, unsatisfied with a system that does not take into account individual liberty and a right to a
good living, ironically, so boldly protected by Mill. As in the instance of homosexuality, which has
over the years been more widely accepted and influential on law reform, Mill believed that what is
done in the privacy of one’s home is not the public’s concern. This brings us to the Wolfenden Report
which gave birth to the landmark debate between Hart and Devlin, attracting the attention of other
theorists who contributed eagerly. Hart reiterated Mill's "harm principle" by pointing out that societies
survive changes in basic moral views. Why should the conventional morality of a few members of the
population be justification for preventing people doing what they want? Devlin, on the other hand
claimed that the law should only intervene when society won't tolerate certain behaviour.
Consequently, he argued that when a behaviour reached the limits of"intolerance, indignation and
disgust,"15 legislation against it was necessary. Devlin's philosophy carried that the collective judgment
of a society should guide enforcement of laws against both private and public behavior that was
deemed immoral. He then continued that immorality is what every right-minded person considered
immoral. He argued that there could be no theoretical limit to the reach of law; no acts are “none of the
laws business”. What makes this debate all the more entertaining to discuss, is the revolutionary
change that has taken place in recent years, leaving Devlin’s idea of what is moral and what is immoral
all the more ambiguous. The UK has legalised same-sex marriages only 2 months ago, thus implying it
is morally right. Or is it? Is this a step induced by a question of morality or a question of pressure from
a growing number of homosexual individuals receiving significant support from the majority that they
now need to be taken into account? Does politics ever act in the best interest of morality? That remains
unanswered.
Hart's philosophy of law held that laws should not be based only on popular moral consensus, in the
absence of other harms. This is consistent with Hart's argument that one role of law was to protect
individual liberty and yet, how is the separability of law and morals maintained if individual liberty is
endorsed. Is the right to individual liberty not a moral right as well?
Dworkin, amused, suggests that we should abandon the Hart-Devlin debate and concentrate on
liberties. If a behaviour is a basic liberty (like sex, family or food), this should never be taken away,

14
Raymond Chandler, The Long Goodbye, Penguin Publishing (1953).
15
‘Wolfenden Report’. Report of the Committee on Homosexual Offences and Prostitution, 1957, Cmd. 247.
 Ewa Janik 4424808

even if someone has a different way of 'doing' sex. A good example of this ideology is R v Brown.16
General liberties, however, could be restricted if they cause harm. But, it is not clear how you tell the
difference between a basic and a general liberty. Mill appeals to Dworkin in his essay on liberty,
“What is the rightful limit to the sovereignty of the individual over himself? Where does the authority
of society begin? How much of human life should be assigned to individuality, and how much to
society?”.17 What should the law do when a wife is raped by her husband? Should it turn a blind eye or
interfere? Where do we draw the line? If the society and state have never considered such a situation,
how are they to deduce what is moral and what is immoral? Lord Devlin was unclear whether he
meant that morality should be enforced to preserve society or whether the enforcement of morality by
law is a justifiable end in itself18 – in either case, there are many gaps to fill. As is the case with any
theory put forward concerning law and morals. The conclusion that society has the right to enforce
moral judgements by law does not flow from the premise that is has the right to pass them. Lord
Devlin received much appraisal in the case of Shaw v Director of Public Prosecutions19, “whatever is
contra bonos mores et decorum, the principles of our law prohibit...”20 Again we are faced with the
mind-boggling question of what is to be considered ‘against good morals’ and what is not. It has been
mentioned earlier on, that morals change as the society adapts and evolves. The concept of morality is
an idealistic one. The word carries with it an illusion of righteousness and wisdom. A moral man
equals to a perfect man in our minds. We often forget that even though morality sounds like an
objective epitome of rightness or fairness, it could not be anymore subjective. The doubt surrounding
morality, is whether a true rightness of living exists. In the UK, legal positivism and natural law
somewhat co-exist in the courts thanks to the presence of the common law. In his article about the
inseparability of law and morals, Richard Bastien notes that judges are given the freedom of making a
judgment that is not dependent on statute, ‘Judges can make decisions based on natural law because it
is sustainable independently of any religious or philosophical argument. To refrain from killing,
stealing or raping women is not the expression of a"subjective, arbitrary and unworkable" preference,
but a universal, objective moral truth easily understood by people of all cultural backgrounds.’21
Dworkin shares a similar view on the matter and assaults legal positivism, blaming it for its
conventional nature. According to Dworkin, legal positivists have given law the function of social
convention which has been designated as a legal convention. Regardless, one could stress that the

16
(1994) 1 AC 212
17
John Stuart Mill, On Liberty in Gerald Dworkin, Morality, Harm and the Law, Westview Press, Inc., (1994)
p.9
18
Norman St John-Stevas, Law and Morals, Hawthorn Books Inc., (1964) p.25
19
[1962] AC 220
20
Lord Mansfield in Shaw v DPP [1962] AC 220
21
Richard Bastien, Law and Morality Can’t Be Separated, Ottawa Citizen, 30th December, 2005.
 Ewa Janik 4424808

imposition of morality, or the idea of the state’s morality on society is a form of a convention in itself.
Truthfully, the world is built on conventions. Science, mathematics, and the way we perceive the
world is founded on conventions. In other words, codes, rules and formulas which we create to further
our understanding of the world. Without conventions and generalisations we are lost. The law is a form
of that understanding. People created the law to have a perimeter which would provide stability and
protection while we focus on our personal well-being. An ideal world would be one where everyone
behaves diplomatically and shares common moral norms. This has proved to be impossible, the fate of
Jesus is a Biblical example of the failure of a law founded on divine law. We are left with
positivism;“The legal philosopher is indeed concerned with positive law, since he must have it at
command when he sets out to put his philosophy to the purpose which is the main justification for any
philosophy or science, i.e the bettering of existing conditions.” ,Buckland W. W.22 To review the
points made, let us return to the axiom of utilitarianism. It is necessary to define what is meant by the
common good, in order to better existing conditions. Norman St John-Stevas rightfully indicates,
“Public order and civil peace: the security of the young, the weak and the inexperienced, the
maintenance of the decencies of public conduct, all are included within the concept of the common
good.”23 The list is non-exhaustive. Furthermore he continues to say that, “every community holds
certain moral ideas and ideals of behaviour in common, and this moral consensus also forms part of the
common good. In preserving this consensus the law probably has a minor role to play: of much greater
importance are the forces of education and persuasion and of actual behaviour in society, but one
cannot exclude the law altogether”.24 And this is, most likely the most realistic and least invasive
conception of the law and its role. To highlight a point made at the beginning of this paper, positive
law should be a looked as a measure taken when all else fails – John-Stevas understands this; despite
being a natural lawyer, he seems to have much in common with legal positivists, “Moral offences not
affecting the common welfare should be excluded from the scope of the law”25. Nota bene, he goes on
to say that “equally, euthanasia takes place in private but the acceptance of euthanasia as legitimate
might well modify the principle of the sanctity of life held in common by society”. 26 That is an
example of a fairly-worded, pragmatic and optimistic perception of the law. A law which imposes
sanctions, yet upholds an understanding and empathy of the society it directs in the path to a
diplomatic living. Lastly, it is emphasized that the law will only change if it is given a reason to
change; a sacrifice needs to be made, “the common law has not seen much virtue in the enforcement of

22
W. W. Buckland, Some Reflections on Jurisprudence, Cambridge University Press, (1945)
23
Norman St John- Stevas, Law and Morals, Hawthorn Books, Inc., (1964) p. 27
24
Ibid.
25
Ibid.
26
Ibid.
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morality as such but has always sought for some particular harm to the community before it has
created a new offence”.27

The belief conveyed in this paper is that the law is, or, should be used as a translator of morality in a
form that is unquestionable for those it is imposed upon.28 Ultimately it is left to the odds and strengths
of those who make the law. Natural law is an idealistic concept, that despite holding much insight in its
values it would, in most cases, result in a dictatorship. Do we really want to find ourselves living a re-
enactment of a Lord of the Flies29 scenario? “What is moral is what you feel good after and what is
immoral is what you feel bad after”, Hemingway.30 Dismally, every individual has a different
understanding of what is ‘right’ and ‘wrong’, and thus completely subjective; meaning, that a law built
on morality can never be universal. Legal positivism strips the law from its humane aspect and
purports a robotic world filled with sanctions, depriving the individual from their own moral compass.
Bordering on communism, the utilitarian seeks equality for a collective well-being, also taking away
one’s individuality. And while simple, raw utilitarianism is definitely not the answer to the ‘common
good’ it often promotes exactly that. Ultimately it is up to the people to vocalise their needs and
inform the lawmakers that what they may consider a minority, is in fact a majority coming out of the
closet. The responsibility assumed by the lawmakers is a grand burden to bear and however different
the approach taken, there will always be a part of the society left displeased. The law can only be what
it is now, a mechanism, intended for the betterment of people, on a mission to catch up with changes in
the society. Unlucky for us, it lacks the flexibility we demand and it will be left chasing the people like
a turtle trying to catch a freight train.

27
Norman St John-Stevas, Law and Morals, Hawthorn Books, Inc., (1964) p.26
28
Tony Honoré, The Dependence of Morality on Law, Oxford Journal of Legal Studies Vol. 13, No. 1 (Spring,
1993), pp. 1-17
29
William Golding, Lord of the Flies, Penguin Publishing, (1954)
30
Ernest Hemingway, Death in the Afternoon, Charles Scribner’s Sons, (1932)
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R v Brown (1994) 1 AC 212

Shaw v DPP [1962] AC 220

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