Separation of Law and Morals

The idea of a valid law being necessarily linked to a sanction is further criticized with the aid of evidence to the existence of rights within a legal system. We can see that some rules within the system will act to allow individuals to exercise powers, make claims and assert rights. It seems that Kelsen makes an attempt to demonstrate that these laws conferring rights, are in some way "conditional stipulations" of sanctions to be exercised by a person ultimately under a legal duty. Hart remains unimpressed by this explanation of the existence of rights.

He comments that this attempt to stick as closely to his theory as possible (not allowing for any exceptions) is characteristic of Kelsen's work. He feels that to suppress a real aspect of law in order to maintain a theory is to show a "dogmatic and pursued determination in the extreme"8. Moreover it is argued that the theory of law that Kelsen offers, showing laws as a mere set of commands makes it inexplicable that we should use the language of individual rights and powers. According to Hagerstrom if this picture of law was deemed to be correct then the notion of such rights would not exist.

This is because it is clear that commands will be interpreted as something we obey or disobey (or as Kelsen and Austin explain something backed by a conditional sanction). It is not the case, however, that these rules will confer privileges on individual members of society. Thus it is well explained by the likes of Hart and Salmond that the command theory is too limited in its scope. It fails because it cannot account for different facets of the law apart from the issuing of a command and the fear of its sanction. We can see instead that there may exist other reasons for obeying the law.

It is apparent that a person may feel obligated in a way not explained by the existence of fear. Indeed it is possible for a person to feel compelled or obligated to act in a certain prescribed manner even though he doesn't experience feelings of being bound (and even though he feels safe from the 'arm of the law'). Individuals and indeed society as a whole should be credited with somewhat more complexity than is sufficiently expressed by the idea of continued obedience to a system, one of command backed sanctions.

This criticism is particularly strong when one considers that the sovereign Austin sees as issuing commands and enjoying habitual compliance is in a modern state subject to regular change. Thus in England there is the possibility of change in government every four years. There must, it is therefore contended, be some other reason for the respect that organs of the state receive. He argues that there is instead an internal aspect of law, which will account for the effectiveness of a legal system. In this way a person may come to internalise or accept a law for other reasons.

For example the prospect of a diminution of personally valued interests, or that an act of self compliance may set a person apart from the rest of the group and result in isolation. It seems clear therefore that through reasoned criticism of Kelsen's and Austin's work Hart has come up with a definition of law which is in my opinion easier to accept in terms of application to an everyday, modern legal system. It is argued that the connection between law and sanctions must be understood in a more general way.

Kelsen's submission that every law should be linked to a sanction is shown to be without grounding. It is apparent that such a statement is somewhat exaggerated, yet not unhelpful. Certainly it is true that all types of rules in society will depend ultimately on the readiness of officials to act in certain ways. For a legal system to have sanctions is a natural necessity. In this way it is imperative that a sufficient number of laws do have a specific content-a conditional connection to punishment.

Yet the existence of a sanction or otherwise will not necessarily effect its validity. Accordingly to say "Law is Force" is a statement that is fundamentally flawed. To argue, however, that the Ultima Ratio (that is to say the underlying principle or "last resort") of law is force is a well-supported contention. Whilst it is true that force will not always compel a citizen to obey every law it is clear that the possibility of the application of force will always be in the background.

However, before complete acceptance of such a definition it should be noted that the prospect of a legal system without an element of force has never been given the opportunity to flourish. Perhaps a legal system lacking in this level of acrimony would be in our best interests and would be surprisingly effective. Yet it could also be argued that human nature and the existence of greed will result in citizens attempting to 'get away' with as much as they can.

For now it seems Law and Force are inexorably linked and in terms of understanding our legal systems Hart's explanation is well founded and in my opinion the most realistic definition of a legal system.


N. E Simmonds; Central Issues in Jurisprudence Brian Bix; Jurisprudence; Theory and Context J. W. Harris; Legal Philosophies HLA Hart; Positivism and the Separation of Law and Morals; Harvard Law Review (1958) Hart; The Concept of Law pp 79-84 Iain Stewart; The Critical Legal Science of Hans Kelsen; 1990 Iain Stewart; The Basic Norm as Fiction 1980