This presents a very dark prospect indeed, if one believes, as I do, that we cannot accept histheory of interpretation. I do not take so gloomy a view of thefuture of the ideal of fidelity to law

untenable

any notion of this sort in declaring void the more outrageousNazi statutes

This complete willingness of the Nazis to disregard even theirown enactments was an important factor leading Radbruch to takethe position he did in the articles so severely criticized by Professor Hart

depend upon general acceptance and that to makethis acceptance secure there must be a general belief that the constitution itself is necessary, right, and good.

Obviously such a constitutioncannot lift itself unaided into legality; it cannot be law simplybecause it says it is.

specious simplicity which leaves untouched the difficult issues where real dangers lie

Second, if there is a serious danger in our society that a weakening of the partition between law and morality would permit aninfusion of “immoral morality,” the question remains, what isthe most effective protection against this danger?

First, Professor Hart seems to assume that evil aims may haveas much coherence and inner logic as good ones. I, for one, refuseto accept that assumption.

If all the positivist school has tooffer in such times is the observation that, however you maychoose to define law, it is always something different from morals,its teachings are not of much use to us.

Law, as something deservingloyalty, must represent a human achievement; it cannot be asimple fiat of power or a repetitive pattern discernible in the behavior of state officials. The respect we owe to human laws mustsurely be something different from the respect we accord to thelaw of gravitation. If laws, even bad laws, have a claim to ourrespect, then law must represent some general direction of humaneffort that we can understand and describe, and that we canapprove in principle even at the moment when it seems to us tomiss its mark.

tion arose not merely from the impasse we confronted, but because this impasse seemed to us so unnecessary. All that wasneeded to surmount it was an acknowledgment on the other sidethat its definitions of “what law really is” are not mere images ofsome datum of experience, but direction posts for the applicationof human energies. Since this acknowledgment was not forthcoming, the impasse and its frustrations continued. There is indeedno frustration greater than to be confronted by a theory whichpurports merely to describe, when it not only plainly prescribes,but owes its special prescriptive powers precisely to the fact thatit disclaims prescriptive intentions.

There is no reason why the argument for a strict separation of law and morality cannot be restedon the double ground that this separation serves both intellectualclarity and moral integrity.

It is not clear, in other words,whether in Professor Hart’s own thinking the distinction betweenlaw and morality simply "is,” or is something that "ought to be”

At other times, he seemed to be warning us that the realityof the distinction is itself in danger and that if we do not mendour ways of thinking and talking we may lose a "precious moral

At timeshe seemed to be saying that the distinction between law andmorality is something that exists, and will continue to exist, however we may talk about it.

Intelligible communication on any subject, he seems to imply, becomesimpossible if we leave it uncertain whether we are talking about"what is” or "what ought to be.”

It may therefore be wellto dispel this source of confusion

Nonetheless Ithink (though I cannot prove) that insistence upon the distinctionbetween law as it is and ought to be has been, under the generalhead of "positivism," confused with a moral theory according towhich statements of what is the case ("statements of fact")belong to a category or type radically differentfrom statements ofwhat ought to be ("value statements").

Only if the rulesfailed to provide these essential benefits and protection for any-one -even for a slave-owning group -would the minimum beunsatisfiedand the system sink to the status of a set of meaninglesstaboos. Of course no one denied those benefits would have anyreason to obey except fear and would have every moral reason torevolt

So there is, in the very notion of law consisting of generalrules, something which prevents us from treating it as if morallyit is utterly neutral, without any necessary contact with moralprinciples.

overlap of legal rules and moralstandards is "necessary"in this sense

their protest againstthe confusion of what is and what ought to be law has a moral aswell as an intellectual value

when we have the ample resourcesof plain speech we must not present the moral criticism of institu-tions as propositions of a disputable philosophy.

If, on the other hand, we formulate our ob-jection as an assertion that these evil things are not law, here isan assertion which many people do not believe, and if they aredisposed to consider it at all, it would seem to raise a whole hostof philosophical issues before it can be accepted

candour

The vice of this use of the principle that, at certainlimiting points, what is utterly immoral cannot be law or lawfulis that it will serve to cloak the true nature of the problems withwhich we are faced and will encouragethe romantic optimism thatall the values we cherish ultimately will fit into a single system,that no one of them has to be sacrificed or compromisedto accom-modate another

It would have made plain that in punishing thewoman a choice had to be made between two evils, that of leavingher unpunished and that of sacrificing a very precious principleof morality endorsed by most legal systems.

It is not, I think, uncharita-ble to say that we can see in his argument that he has only halfdigested the spiritual message of liberalism which he is seekingto convey to the legal profession. For everything that he says isreally dependent upon an enormous overvaluation of the impor-tance of the bare fact that a rule may be said to be a valid rule oflaw, as if this, once declared, was conclusive of the final moralquestion: "Ought this rule of law to be obeyed?" Surely the trulyliberal answer to any sinister use of the slogan "law is law" orof the distinction between law and morals is, "Very well, but thatdoes not conclude the question. Law is not morality; do not letit supplant morality."

The most pernicious laws, and therefore those which are most op-posed to the will of God, have been and are continually enforced aslaws by judicial tribunals. Suppose an act innocuous, or positivelybeneficial,be prohibitedby the sovereignunder the penalty of death;if I commit this act, I shall be tried and condemned,and if I objectto the sentence, that it is contrary to the law of God . . . the courtof justice will demonstrate the inconclusiveness of my reasoning-byhanging me up, in pursuance of the law of which I have impugnedthe validity. An exception, demurrer,or plea, founded on the law ofGod was never heard in a Court of Justice, from the creation of theworld down to the present moment

The third criticism of the separation of law and morals is ofa very differentcharacter;

to assert mysteriouslythat there is some fused identity between law as it is and as itought to be, is to suggest that all legal questions are fundamentallylike those of the penumbra. It is to assert that there is no centralelement of actual law to be seen in the core of central meaningwhich rules have, that there is nothing in the nature of a legalrule inconsistent with all questions being open to reconsiderationin the light of social policy.

Perhaps the claim that it is wisecannot be theoretically refuted for it is, in effect, an invitation torevise our conception of what a legal rule is. We are invited toinclude in the "rule" the various aims and policies in the light ofwhich its penumbral cases are decided on the ground that theseaims have, because of their importance,as much right to be calledlaw as the core of legal rules whose meaning is settled.

Here the choice of sentencemight be guided exclusively by consideration of what was neededto maintain the state's tyranny effectively.

Here the factors to be weighed seem clearly to be moral factors

It does not followthat, because the opposite of a decision reached blindly in the for-malist or literalist manner is a decision intelligently reached byreferenceto some conception of what ought to be, we have a junc-tion of law and morals.

instead ofsaying that the recurrence of penumbral questions shows us thatlegal rules are essentially incomplete, and that, when they fail todetermine decisions, judges must legislate and so exercise a cre-ative choice between alternatives, we shall say that the socialpolicies which guide the judges' choice are in a sense there forthem to discover; the judges are only "drawing out" of the rulewhat, if it is properly understood, is "latent" within it.

either the interpretations stigmatized asautomatic have resulted from the conviction that it is fairer in acriminal statute to take a meaning which would jump to the mindof the ordinaryman at the cost even of defeating other values, andthis itself is a social policy (though possibly a bad one); or muchmore frequently, what is stigmatized as "mechanical"and "auto-matic" is a determinedchoice made indeed in the light of a socialaim but of a conservative social aim.

The misconception of the judicial process which ignores theproblems of the penumbraand which views the process as consist-ing pre-eminently in deductive reasoning is often stigmatized asthe error of "formalism" or "literalism.

What is it then thatmakes such decisions correct or at least better than alternativedecisions?

the classifier must make adecision which is not dictated to him,

Rules that conferrights, though distinct from commands, need not be moral rulesor coincide with them

Salmond, complainedthat the analysis in terms of com-mands left the notion of a right unprovided with a place

Under these rules we exercise powers, make claims,and assert rights

Plainly the general acceptance of the authority of alawmakingprocedure,irrespectiveof the changing individualswhooperate it from time to time, can be only distorted by an analysisin terms of mass habitual obedience to certain persons who are bydefinition outside the law, just as the cognate but much simplerphenomenonof the general social acceptanceof a rule, say of tak-ing off the hat when entering a church, would be distorted if repre-sented as habitual obedience by the mass to specific persons

These fundamental accepted rules specifying what the legislaturemust do to legislate are not commandshabitually obeyed, nor canthey be expressed as habits of obedience to persons. They lie atthe root of a legal system, and what is most missing in the utili-tarian scheme is an analysis of what it is for a social group and itsofficials to accept such rules.

Even if we waive this point, nothing which legislators do makeslaw unless they comply with fundamental accepted rules specify-ing the essential lawmaking procedures

We must rememberthat the Utili-tarians combined with their insistence on the separation of lawand morals two other equally famous but distinct doctrines

when Benthamand Austin insisted on the distinction between law as it is and asit ought to be, they had in mind particular laws the meanings ofwhich were clear and so not in dispute, and they were concernedto argue that such laws, even if morally outrageous, were stilllaws

by ex-plicit legal provisions moral principles might at differentpoints bebrought into a legal system and form part of its rules, or thatcourts might be legally bound to decide in accordance with whatthey thought just or best

Bentham's gen-eral recipe for life under the government of laws was simple: itwas "to obey punctually; to censure freely."1

Austin's protest against blurring the distinction between whatlaw is and what it ought to be is quite general: it is a mistake,whatever our standard of what ought to be, whatever "the text bywhich we regulate our approbation or disapprobation.

were the vanguard ofa movement which laboured with passionate intensity and muchsuccess to bring about a better society and better laws. Why thendid they insist on the separation of law as it is and law as it oughtto be?

the passionfor reform with respect for law together with a due recognition ofthe need to control the abuse of power even when power is in thehands of reformers

In consideringthese questions we should recall the social philosophy which wentalong with the Utilitarians' insistence on this distinction. Theystood firmly but on their own utilitarian ground for all the prin-ciples of liberalism in law and government