It is not as Distinct as It Seems

It is not as Distinct as It Seems

It is not as Distinct as It Seems:
A Note on the Debates on the Separation of Law and Morals in the Contemporary World
I. Introduction
II. Topic One: Is there any Necessary Connection between Law and Morality?
III. Topic Two: Is It Necessary to Enforce the Morality with Law?
IV. It is Not as Distinct as It Seems
V. Revelations for Chinese Jurisprudence
VI. Conclusion

I. Introduction

After the Second World War, the German courts raised many problems that nearly destroyed the domination of so called “positive law” philosophy since Bentham, Austin and Kelson.[1] Executioners and talebearers defended themselves with this reason: they were enforcing the existed Nazi written law, which was the “positive law of Germany”, so what they did were lawful and could not be sentenced. Although this argument did not find it’s legitimacy in the very judgments to Nazis, it has brought a series of debates around the relationship between law and morals throughout the second half of twentieth century, and the endless debates may continue to the twenty fifth century, if the Marx’s communistic world still hangs on the sky at that time.[2]
The debates on the separation of law and morality throughout the twentieth century are so complicated that one may not accurately summarize all the discussions in a short essay. Nevertheless, this note will briefly introduce some core debates among scholars. Furthermore, I hope to demonstrate hereby that the differences among those prominent scholars’ arguments on this issue are not as tremendous as it seems, though they did distinguish from each other clearly in many aspects. Finally, from these debates, I am trying to find some revelations that may be applied into the legal research in the context of Chinese jurisprudence.


II. Topic One: Is there any Necessary Connection between Law and Morality?
The debate on the separation of law and morality started from Professor Hart’s comments on the German court’s decision[3] and Gustav Radbruch’s conversion from a positivist to a natural law supporter: “We might punish the woman [talebearer – added by author of this note] under a new retrospective law and declare overtly that we were doing something inconsistent with our principles [of no ex post facto laws – added by author of this note] as the lesser of two evils; or we might allow the case to pass as one in which we do not point out precisely where we sacrifice such a principle … we must not present the moral criticism of institutions as propositions of a disputable philosophy.” [4]As a development of his notion, Hart claimed later that whilst law and morality may have some connections, there is no “necessary logical connection” between them, and that the existence of legal rights and duties may be devoid of any moral justification. [5]
Differing from his forerunners (such as Bentham, Austin and Kelson), however, Hart declared his philosophy as a kind of “soft positivism”, in that he admits that rules of recognition may consider the compatibility or incompatibility of a rule with moral values as a criterion of the rule’s legal validity.[6] As a positivist, Hart concluded five “truisms” about man and the world. First, men are mutually vulnerable. Second, unlike nation states, they are approximately equal in their abilities to help and harm each other. Third, they have limited altruism, being neither angels nor devils. Fourth, they live in a world with limited resources. Fifth, they suffer from weakness of intellect and will which means that achievement of their aims requires a special coordination of their activities.[7]
Professor Fuller is the first defender of natural law in this centurial controversy. He disagreed with Hart by insisting on his notion of “law…contains…its own implicit morality”, [8] and one must regard law “as a purposeful enterprise”.[9] To achieve this enterprise, one must separate “the internal morality of law” from the “external morality of law”, and remember that “a deterioration of the one will almost inevitably produce deterioration in the other”.[10] In his allegory of Rex, Fuller provided his eight principles to the internal morality of law.[11] Obviously, these moral principles are all concerning on the procedural aspects, and this makes Fuller very different from his “comrades” (such as Locke, Aquinas, Blackstone and even Finnis).
The debate between professor Dworkin and Hart continued the topic.[12] By merely stringing the name of those great works by professor Dworkin, we will find the orientation of his inclination and endeavor of integrating morality into law: he contends Taking Rights Seriously; emphasizes Freedom’s Law; discusses A Matter of Principle, and tries to construct a Law’s Empire.[13] While Dworkin moves away from positivism’s separation of law and morality, his concept suggests that the two are related in an epistemic rather than ontological sense as posited by traditional natural law.[14] His theory of law is mainly on the “interpretive” of law, from which differs Hart’s “description of law”. Dworkin believes that in most of cases, even “hard cases”, judges can obtain “a single right answer” or “right answers”.[15] To achieve this aim, he provides a concept of “constructive interpretation”[16], which, commented by a prominent Chinese scholar,[17] very close to the approach of Fuller’s “inner morality”.
III. Topic Two: Is It Necessary to Enforce the Morality with Law?
Lord Devlin is another famous academic opponent to professor Hart on the connection of law and morality. The so called “Hart-Devilin Debate” was mainly around the possibility of legal enforcement of Morality. As an assumption, Devlin believed in that a society is kept together by the bonds of a common morality. Based upon this, he contended that it is reasonable to conclude first, that a society has a right to pass judgment on all matters of morality, and second, that it has the right to use the law to enforce those judgments.[18] Furthermore, he considered it is wrong to think that the law should not be concerned with private morality, or acts of immorality.[19] As a conclusion, Devlin argued that “there are no theoretical limits to the power of the State to legislate against treason and sedition, and likewise I think there can be no theoretical limits to legislation against immorality.”[20] On the enforcement the moral with law in practice, he used the notion of “the reasonable man”, “the man in the Clapham omnibus”, or “the man in the jury box”,[21] since “every right-minded person” may  base on “shared feelings” concerning right and wrong.[22]
Hart’s central objection to Devlin’s thesis rested on Devlin’s priori assumption. Such an assumption, according to Hart, would warrant the extravagant claim that all of a society’s morality “forms a single seamless web, so that those who deviate from any part are likely or perhaps bound to deviate from the whole”[23]. From a liberal and utilitarian perspective, Hart hesitated on the logical conclusions of Devlin’s assumption: (1) the best teacher of morality is legal coercion, the fear of punishment;[24] (2) one would have to contend that legal punishment itself has value on retributive grounds only, and that such value is perceptible in those inevitable instances wherein one is punished for acts causing no harm to others.[25]
Interestingly, whilst argued against Devlin, Hart also stated that “some shared morality is essential to the existence of any society.”[26] He maintained that all societies of practical value for human beings must make room for universal values, such as individual freedom, safety of life, and protection from intention ally inflicted harm, and the preservation of society is worthwhile only to the extent that society secures these values for its constituents.[27] The difference between him and Devlin is that his version of shared morality is “from the most elemental truths of the human condition” other than “from the feelings of the man in the jury box”.[28] On the contrary, once this argument is accepted, Hart implied, then, one immediately recognizes the error in Devlin’s assumption that a society’s morality is a seamless web of shared beliefs.[29] For when the values of liberty, safety, and protection are once secured, these values not only permit a society to accommodate individual divergences from a dominant morality, but also enable it to profit from such divergences by making suitable adjustments for change.[30]
IV. It is Not as Distinct as It Seems
The debates on the separation of law and morals are definitely not summarized up merely with the above two parts. There are a good many of other vehement discussions, between naturalist and positivist (like the ongoing Posner-Dworkin debate, if we classify them not as legal-economist and eclectic but as naturalist and positivist), between naturalist and naturalist (like Dworkin’s criticism to Fuller’s points), and between positivist and positivist (like debate between Hart and Raz), contributing in this topic.
Nevertheless, if we take the relationship between law and morality not as a theoretical Holy Grail in jurisprudence, but as a concern of the way to improve the development of human knowledge, we may find the differences among those prominent scholars’ arguments are not as tremendous as it seems.
Hart’s list, for instance, of “five minimum content of natural law” and description of “universal values”, despite their fundamentally anti-naturalism logical and/or metaphysical nature, are at least have the same functionalistic or perhaps even utilitarianism, which is one of the base of Hart’s theory, significance to enforce a kind “objective” morality law. Furthermore, although the choice of ex post facto laws by Hart was from utilitarian notions, it stands realistically, or at least politically, on the same position of what Fuller’s judgment of “bad law is not law”.
As to Fuller’s eight principles, there may not be other theoretical notion more appropriate to compare with it than Kelson’s “Grundnorm”, if merely we substitute the key words of “moral” and “principle” to “general” and “norm”. I am not arguing that Kalson is not a positivist, or Fuller can be classified as a positivist, that is absolutely wrong. What I hope to emphasize here is the effects and function, especially for those pre-rule of law communities.
Dworkin’s theory is often regarded as “the third way” between positivism and natural law theory.[31] To some “hard positivists”, it is not the third way because it is simply not an adequate theory of law at all.[32] As a critic to Dworkin’s notion of “interpretive concept”, Raz inexorably brought the following comments:
“An interpretation of something is an explanation of its meaning. Many if not all legal philosophers think of themselves as explaining the essential features of legal practices, and explaining the relations between them and related phenomena such as other forms of social organization, other social practices, and morality. . . . [Hart himself] was seeking to interpret the complex social institution the law is. If Hart and others did not make as extensive use of “interpretation” as Dworkin does, this is in part because fashions dictate the use of terms, and because they may well have wished to avoid being associated with theories that, in their eyes, misconstrued the nature of interpretation.”[33]
In my opinion, even Raz is correct in “interpreting” the interpretation, he will not deny the fact that Dworkin was trying to “interpret” something, and has tried to find the criteria of interpretation. These criteria may either be “moral” or be “authoritative” features of the constitution of the United State. That is, at least in the expression, similar to what Hart had mentioned as “universal values and virtues”.  
Yes, I still remember Hart’s warning: legal enforcement is not at all required for the preservation of universal values and virtues.[34] But my notion is, and merely is, that the differences among scholars are not as distinct as the appearance of the debates. While arguing and even quarreling, legal philosophers are always sitting around a table – perhaps Fullerians used to strike it with morals and Hartians sculpt on it with utilitarianism. What is the table? My answer is, at least from the perspective of methodology, rational reasoning, a tradition of western philosophy deriving from ancient Greece and prospering in the era of Hegel, Kant and even that of Karl Marx and Max Weber.
V. Revelations for Chinese Jurisprudence
If one agree with me on that the intention of developing theories is not to dispute with each other but to apply them into real lives, he/she will definitely also pay more attention to the possible contribution of those debates to the development of the legal system of his own society, especially when this system is far from the satisfaction. The reason of paying more attention on the common contribution of different theories is: because the time, region and historical background of the debate have been changed, although same discussion may be raised in China, the focuses and conclusions may vary.
In Chinese “jurisprudence sphere”, most of the above debates have been introduced, and by diving into the detailed analysis of them, some scholars have achieved significant achievements in illustrating the differences among the theories. However, many Chinese experts of jurisprudence seems cease their work at this dimension. Tutoring in law schools, they settle themselves down by “interpreting” the debates as telling stories, and the common knowledge emerging from the debates seems no significance to our own society.
Generally speaking, although the debate on the separation of law and morality is far from closing, it makes the thinkers closer than before. On the basis of rational reasoning, Fuller altered barren norms of natural law with concrete procedure principles. By criticizing Kelson and Austin, Hart built his soft positivism with recognition of some “descriptive” universal values. Together with Dworkin’s legal empire and Raz’s principles on rule of law, a common recognition to some uniform values (no matter if they are “necessarily” connecting to the law) on the condition of “formal rational”[35] has been established. For China, under a “rule of Confucianism” for more than one thousand years, it may be more difficult, especially in the mass’ conception, to separate morality from law. So, from the debate among the above thinkers, it deserves a serious review that the approach of restraining moral impulsion with rational reasoning.
VI. Conclusion
The debates on the separation of law and morality are of an important component of western, if not the world, modern jurisprudence. They affect not merely the topic itself, but also other issues such as the concept of law, the methodology of legal study and the concept of rule of law. No one will deny that from these debates, both the positivism and naturalism has been developed greatly. For Chinese researchers, if they hope to develop their own jurisprudence with a “constructive rational”, while understanding the differences, the revision of respective schools, the inter-supplement among theories, and the common basic of rational reasoning deserve more attentions. Although this short essay might not undertake even the minimum task of this approach, it would be a reminder to me and its possible readers. In any case and no matter what, it is an essential step in finding the “law” of episteme.

 [1] To my knowledge, I have to say, although they are often regarded to be in the same team of legal philosophy, there are some differences on “morals and law” among their theories. Briefly, Bentham contends that a law is dependent upon motivations that including morality for obedience, and he does not find sovereign as the base of his utilitarianism; Austin entirely separates morals from “laws properly called” by clearly distinguishing “is” and “ought”; Kelson’s “Grundnorm” makes him had no other way but looking for some “ought” solutions.
[2] According to Karl Marx and his adherents, the concept of law as ideology is thus central to the Marxist view that law will wither away with the full flowering of communism. See Law and Ideology – Stanford Encyclopedia of Philosophy, available at, visited on 12 July 2006.
[3] From Hart, the German courts find the talebearer guilty by saying that the Nazi’s statute “was contrary to the sound conscience and sense of justice of all decent human beings”. But this case discussed by Hart and Fuller seems not in fact decided on the basis that the earlier Nazi laws were to be treated as invalid. For a full discussion of this and later German cases, see H. O. Pappe, On the Validity of Judicial Decisions in the Nazi Era”, (1960) 23 M. L. R. 260., this footnote is quoted from M. D. A. Freeman, Lloyd’s Introduction to Jurisprudence, 6th edition 1994, International Student Edition, Sweet & Maxwell 1996, p. 395.
[4] H. L. A. Hart, Positivism and the Separation of Law and Morals, (1958) 71 Harv. L. Rev., pp. 593-629.
[5] H.L.A. Hart, The Concept of Law, Oxford: Clarendon Press, 1994, p. 268.
[6] Ibid., p. 250.
[7] J.W. Harris, Legal Philosophies, course readings.
[8] L. L. Fuller, Positivism and Fidelity to Law – a Reply to Professor Hart, (1958) 71 Harv. L. Rev., pp. 630-672.
[9] L. L. Fuller, The Morality of Law, (1969),
[10] L. L. Fuller, Positivism and Fidelity to Law – a Reply to Professor Hart, (1958) 71 Harv. L. Rev., pp. 630-672.
[11] L. L. Fuller, The Morality of Law, (revised edition), Yale University Press, 1969, p. 39.
[12] The debates between Hart and Dworkin are not merely focus on the connection between law and morality. In his unfinished Postscript of “The Concept of Law”, Hart concluded the debate into six aspects. See H.L.A. Hart, The Concept of Law, Oxford: Clarendon Press, 1994, Postscript.
[13] See Ronald Dworkin, Taking Rights Serously, Harvard University Press, 1986; A Matter of Principle, Harvard University Press, 1985; Law’s Empire, Harvard University Press, 1986; and Freedom’s Law: The Moral Reading of the American Constitution, Harvard University Press, 1996.
[14] Wikipedia, Ronald Dworkin, available at, visited on 15 July 2006.
[15] Ronald Dworkin, Law’s Empire (Cambridge, Mass.: Harvard University Press, 1986), preface pp. viii-ix, and p.412.
[16] Ibid., p.52.
[17] Ji Weidong, Multiplicity and Integrity of Legal System; Discussing Methodology of Interpretation with Professor Ronald Dworkin, Tsinghua Law Journal (China) Vol.1 No.1 (2002), pp.63-75.
[18] Patrick Devlin, The Enforcement of Morals (London, New York and Toronto: Oxford University Press, 1965), p. 13. Quote from David R. Samuelson, Hart, Devlin, and Arthur Miller on the Legal Enforcement of Morality, 76 Denv. U.L. Rev. 189.
[19] Ibid., pp. 13-14.
[20] Ibid., p. 14.
[21] Ibid., p. 15.
[22] Ibid.
[23] H.L.A. Hart, Law, Liberty, and Morality (London, 1963), p. 51. Quote from David R. Samuelson, Hart, Devlin, and Arthur Miller on the Legal Enforcement of Morality, 76 Denv. U.L. Rev. 189.
[24] Ibid. p. 58.
[25] Ibid. p. 60.
[26] Ibid. p. 51.
[27] Ibid. p. 70.
[28] Ibid. pp. 71-72.
[29] Ibid. p. 70.
[30] Ibid. pp. 70-71.
[31] See John Mackie, The Third Theory of Law, in M. Cohen (ed.), Ronald Dworkin and Contemporary Jurisprudence (London: Duckworth, 1983).
[32] Brian Leiter, Beyond The Hart/Dworkin Debate: The Methodology Problem in Jurisprudence, 48 Am. J. Juris. 17.
[33] Joseph Raz, Two Views of the Nature of the Theory of Law: A Partial Comparison, in Hart’s Postscript, 1-2.
[34] H.L.A. Hart, Law, Liberty, and Morality (London, 1963), p. 71.
[35] This term comes from Max Weber, See Max Weber, Economy and Society: An Outline Interpretive Sociology, transl. by E. Fischoff et al. (Berkeley: University of California Press, 1978), ch. 29.