Positivism, Legal Validity, and the Separation of Law and Morals

Abstract

The essay discusses the import of the separability thesis both for legal positivism and for contemporary legal practice. First, the place of the separability thesis in legal positivism will be explored, distinguishing between “standard positivism” and “post-Hartian positivism.” Then I will consider various kinds of relations between law and morality that are worthy of jurisprudential interest, and explore, from a positivist point of view, what kind of relations between law and morality must be rejected, what kind of such relations should be taken into account, and what kind of such relations are indeed of no import at all. The upshot of this analysis consists in highlighting the distinction between two different dimensions of legal validity (formal validity and material validity respectively), and in pointing out that the positivist separability thesis can apply to formal validity only. On the other hand, when the ascertainment of material validity is at stake, some form of moral reasoning may well be involved (here and now, it is necessarily involved). The essay concludes with some brief remarks on the persisting importance of the positivist jurisprudential project

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“…However, the natural perspective is largely inclined to recognize certain moral obligations as a part of the legal system. The antinomy of iuspositivism and iusnaturalism is a hot question of setting a balance in each jurisdiction (Pino, 2014). Arguably, in contemporary Anglo-American legal theory, legal positivism predominates, while constitutional courts across continental law openly champion legal naturalism (Finnis, 1998).…”