Showing papers by "H. L. A. Hart published in 2017"

Positivism and the Separation of Law and Morals

Abstract: This chapter attempts to defend a view which Mr. Justice Holmes, among others, held and for which he and they have been much criticized. The nonpejorative name "Legal Positivism", like most terms which are used as missiles in intellectual battles, has come to stand for a baffling multitude of different sins. One of them is the sin, real or alleged, of insisting, as Austin and Bentham did, on the separation of law as it is and law as it ought to be. They stood firmly but on their own utilitarian ground for all the principles of liberalism in law and government. The chapter focuses on a distinctively American criticism of the separation of the law that is from the law that ought to be. It emerged from the critical study of the judicial process with which American jurisprudence has been on the whole so beneficially occupied.

Natural Rights: Bentham and John Stuart Mill

Abstract: Bentham's most comprehensive and detailed criticisms of the doctrine of what he termed 'the natural pre-adamitical, ante-legal and anti-legal rights of man' are to found in the work published after his death under the title of Anarchical Fallacies. In most of the many different formulations of his criticism Bentham's account of the conceptual confusion which he took to be inherent in the doctrine of natural rights embraced all forms of the belief in rights which were not the 'creatures' of positive law. 'Rights are the fruits of the law and of the law alone; there are no rights without law—no rights contrary to law—no rights anterior to the law.' John Stuart Mill in his account of moral rights treats conventional morality, or as he terms it, 'opinion' as playing the same role in relation to moral rights as the law though his conception of that role is very different from Bentham's.

Immorality and Treason

Abstract: The Wolfenden Committee on Homosexual Offences and Prostitution recommended by a majority of 12 to 1 that homosexual behaviour between consenting adults in private should no longer be a criminal offence. One of the committee's principal grounds for this recommendation was expressed in its report in this way: 'There must remain a realm of private morality and immorality which in brief and crude terms is not the law's business'. The publication by Sir Patrick of this lecture is in itself an interesting event. It is many years since a distinguished English lawyer delivered himself of general reasoned views about the relationship of morality to the criminal law. The most remarkable feature of Sir Patrick's lecture is his view of the nature of morality - the morality which the criminal law may enforce. English popular morality has no doubt its historical connexion with the Christian religion: 'That', says Sir Patrick, 'is how it got there'.