History of the Law, Part 2: Along Comes a Positivist


Holmes’s particular view on the misplaced role of morality in law was not accepted as canon by all. Rather, weighing  in on the concept of morality in law was mid-20th c. founder of the positivist movement HLA Hart. A notoriously dense writer, Hart’s book The Concept of Law is, for even the most dedicated of readers, a sub-par way to spend a weekend. Decidedly not a 2018 beach-worthy-book, his ideas, like Holmes’s, retain importance nonetheless when considering how law is interpreted and these interpretations legitimized in our time. 

From the outset, Hart’s work distinguishes between law and morality—between views of justice, legal validity, and principle. Principally working to respond to earlier theorists, like Natural Law father Aquinas, Hart’s text is a notable, if contested, guide to shaping legal systems. Moving away, like Holmes, from the idea that law need be rooted in heightened, universal ideas of morality he too sought to return law to being a human endeavor.

Contents page from a recent edition of Hart’s seminal work.

A famous student of Hart’s, Ronald Dworkin, has worked through some of the tension with his ideas about “principles” existing within the law. When “hard cases,” those in which the law is not fully clear in respect to the situation at hand, arise, Dworkin claims that the resolution of hard cases should be based on guiding principles, not on morality. Like Hart, he rejects the idea that morality should be the root of laws, but provides an alternate framework through his “penumbra,” which allowed for a greater degree of flexibility in interpretation of unclear cases. 

Whereas natural law theorists believe an unjust law is not law, Hart’s positivist view considers valid law to be valid because it has been properly enacted by a state or legislative body. The base of his idea rests on the fact that, when implemented properly, all law, even the most horrid of statutes is permissible. Written in the years directly following Nazi rule, which operated within the legal system by changing statutes to establish legal separation and persecution of groups like German Jews, Hart’s theories exist in an uncomfortable space for many legal theorists: Not willing to concede to solely moral shaping of statute, prominent minds must resolve positivist conceptions of law grounded in proper procedure with the truth that the law can be, has been, and will be again indisputably wrong. 

This sign, one of hundreds scattered throughout Berlin’s Bavarian Quarter, serves as part of an exhibition called “Places of Remembrance,” documenting the legal means by which Nazi’s eroded the rights of Jewish citizens.

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