Law and Morality
A legal norm sits between a moral demand, a Social usage, and an order backed by force.
Two classical positions define the debate on Law and morality:
- Natural law asserts a necessary connection between law and justice. Gustav Radbruch argued that statutory law must yield when conflict with justice reaches an intolerable degree.
- Legal positivism defends the separability thesis. What law is and what it ought to be are distinct questions. H. L. A. Hart defended this claim in a 1958 debate against Lon Fuller.
Fuller replied in The Morality of Law (1964). He argued that law possesses an internal morality of eight procedural requirements, such as clarity, publicity, and constancy.
A separate debate concerns content: may the law enforce morality itself?
- The Wolfenden Report (1957) argued that private adult conduct is not the law's business.
- Patrick Devlin argued that society may preserve its shared moral bond.
- Hart argued that preventing harm to others is the only valid ground.
Law, Custom, and Force
What distinguishes a legal norm from a social usage is institutionalisation:
| Social usage | Legal norm | |
|---|---|---|
| Applier of sanction | Anyone, diffusely | Designated organs |
| Sanction fixed in advance | No | Yes |
| Enforceable by force | No | Yes |
John Austin defined law as the sovereign's command backed by threat. Hart offered three decisive counters to Austin:
- Power-conferring rules: Rules for contracts or wills do not threaten punishment; they grant legal validity.
- The gunman writ large. A robber forces compliance. Law requires an internal sense of obligation instead.
- Continuity and persistence. Habits of obedience cannot explain why new rulers have immediate authority.
Law remains a coercive order. Kelsen defined the legal norm as one attaching a sanction to a condition.
Common pitfall: Positivism does not claim that unjust law must be obeyed. It separates legal validity from moral duty so citizens can candidly judge and resist unjust laws.