The hermeneutics of H.L.A Hart’s positivism and the separation of law and morals

Abstract

The problem of the relationship between law and morality looms large since the dawn of analytic jurisprudence. Earlier legal positivists reasoned to the fact that there is no connection between law and morality. But with the emergence of Hart, a new horizon opened to accommodate the inseparability of the two disciplines, namely: law and morality. Applying the methods of analysis and hermeneutics one discovers that the early legal positivists championed by the utilitarians like Jeremy Bentham, John Austin, Hans Keelson, Joseph Razz are morally arbitrary and indifferent to reality when we critically consider their no necessary connection thesis. To be sure, further discovery after analysing and interpreting Hart is his consistent view and claim that law and morality are bonded together in what can be described as mutual complementarity rather than severing one from the other. In short, there are many plausible natural law justifications for the positivity of law and this is something new which this article discovers as a contribution to the existing body of literature in the area of legal positivism. And the conclusion is that the thought and idea of Hart on the separability thesis is that there are some legal systems which permit appeals to moral truth on the question of law which is what Hart means by inclusive positivism. This is in contradiction to the position of Bentham, Austin and other legal positivists who adhere to the severance of law and morality.

Keywords: Positivism, Law, Morality, Separation, Validity, Proposition