# Law, Morality, Custom and Force

Law I · Foundations of Law · https://tryals.app/learn/law-i/law-morality-custom-and-force

### 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:

1. **Power-conferring rules**: Rules for contracts or wills do not threaten punishment; they grant legal validity.
2. **The gunman writ large.** A robber forces compliance. Law requires an internal sense of obligation instead.
3. **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.

## Practice questions

9 of this lesson's 14 practice questions, with answers. The full set is in the app.

### 1. Hart held that a sufficiently unjust rule is, for that reason, not a legal rule at all.

**Answer:** False

**Why:** **False**: that is the natural-law move, and Hart's objection to it is practical. If iniquity subtracts legal status, the citizen loses the sentence "this is law and it is too iniquitous to obey", which is the sentence resistance actually needs. Positivism separates the two judgments so that both remain available.

Page: https://tryals.app/practice/law-i/law-morality-custom-and-force/hart-held-that-a-sufficiently-unjust-rule-is-for-that-reason-not-a

### 2. Arrange these contributions to the debate about law and morality in chronological order.

**Answer:**

1. Austin defines law as the command of a sovereign, 1832
2. Radbruch publishes his formula on intolerable injustice, 1946
3. The Wolfenden Report reaches its conclusions, 1957
4. Hart's The Concept of Law appears, 1961
5. Fuller sets out the internal morality of law, 1964

**Why:** The clustering is the point: four of the five fall within eighteen years of one another, and all four are downstream of the same event. The question of whether a validly enacted rule can be too unjust to count as law stopped being academic in 1945, and the modern literature is an argument about what to say to the German courts that had to answer it.

Page: https://tryals.app/practice/law-i/law-morality-custom-and-force/arrange-these-contributions-to-the-debate-about-law-and-morality-in

### 3. Which are true of the separability thesis?

A. It holds that the question what law is and the question what law ought to be are distinct
B. It is compatible with holding that a particular valid law is too unjust to obey
C. It denies that legal systems rest on coercion at all
D. It was defended by Hart in his 1958 exchange with Fuller

**Answer:** A. It holds that the question what law is and the question what law ought to be are distinct; B. It is compatible with holding that a particular valid law is too unjust to obey; D. It was defended by Hart in his 1958 exchange with Fuller

**Why:** The fourth confuses two separate positivist claims. Hart never denied that legal systems coerce, he denied that coercion explains what a *rule* is, and Kelsen built an entire system on defining the legal norm as one that attaches a sanction to a condition. The separability thesis is about validity and merit, not about force.

Page: https://tryals.app/practice/law-i/law-morality-custom-and-force/which-are-true-of-the-separability-thesis

### 4. Complete the account of the border between law and its neighbours.

**Answer:** The positivist claim that what law is and what it ought to be are distinct questions is the **separability** thesis. Radbruch held that statutory law must yield where its conflict with justice becomes **intolerable**. Fuller called his eight requirements the **internal** morality of law. Hart replied to Austin that being **obliged** by a gunman is not the same as being under an obligation.

**Why:** The four blanks hold the whole argument: a thesis about what the concept of law includes, a formula for when validity gives way, a list of the conditions a system must roughly satisfy to be one, and the distinction between a probability of harm and an internal attitude to a rule.

Page: https://tryals.app/practice/law-i/law-morality-custom-and-force/complete-the-account-of-the-border-between-law-and-its-neighbours

### 5. How many requirements does Fuller's internal morality of law contain?

**Answer:** 8

**Why:** **Eight**: generality, publicity, non-retroactivity, clarity, non-contradiction, possibility of compliance, constancy over time, and congruence between the declared rule and official action. Fuller's claim is that they are not moral extras but conditions of the enterprise: a system failing all eight is not a wicked legal system but not a legal system.

Page: https://tryals.app/practice/law-i/law-morality-custom-and-force/how-many-requirements-does-fullers-internal-morality-of-law-contain

### 6. Legal positivism insists upon separating what the law is from what it ought to be. What practical consequence follows from this division when a citizen faces an overtly wicked statute?

A. She treats the statute as void because extreme injustice deprives it of validity
B. She recognizes its validity whilst deciding whether conscience permits obedience
C. She must obey the measure since valid enactment replaces private moral autonomy
D. She defers moral assessment until designated organs determine its applicability

**Answer:** B. She recognizes its validity whilst deciding whether conscience permits obedience

**Why:** Confusing positivism with quietism ignores that validity does not settle moral duty. Nor does positivism adopt Radbruch's threshold of intolerable injustice. Separating the inquiries enables unclouded moral scrutiny, leaving the ethical decision to resist entirely with the individual citizen.

Page: https://tryals.app/practice/law-i/law-morality-custom-and-force/legal-positivism-insists-upon-separating-what-the-law-is-from-what-it

### 7. Arrange these positions from the strongest claim about a connection between law and morality to the weakest.

**Answer:**

1. Any rule that is grossly unjust is for that reason not law
2. A rule is not law once its injustice becomes intolerable
3. A system that fails every requirement of the internal morality of law is not a legal system
4. Validity and merit are separate questions, and a valid rule may be as unjust as you like

**Why:** The gradient matters because the debate is usually taught as two camps. In fact the interesting disagreements are about thresholds: Radbruch and the strong natural lawyer differ over how much injustice is needed, and Fuller's claim is weaker still, being about the form of rules rather than their content.

Page: https://tryals.app/practice/law-i/law-morality-custom-and-force/arrange-these-positions-from-the-strongest-claim-about-a-connection

### 8. The Wolfenden Report recommended in 1957 that private consensual homosexual conduct between adults cease to be criminal. In what year did England and Wales legislate that recommendation?

**Answer:** 1967 (within ±2)

**Why:** **1967**, ten years after the report. The gap is the substantive point rather than a piece of trivia: the Hart–Devlin argument ran through the whole decade, and a recommendation resting on the claim that some private morality is "not the law's business" was contested precisely because it asserted a limit on what law may take an interest in.

Page: https://tryals.app/practice/law-i/law-morality-custom-and-force/the-wolfenden-report-recommended-in-1957-that-private-consensual

### 9. Austin's command theory cannot account for rules that confer powers, such as those governing how to make a valid will.

**Answer:** True

**Why:** **True**, and this is Hart's most economical objection. Ignore the rules on wills and no sanction follows, you have simply failed to produce a will. A model built on orders backed by threats has to describe these rules as fragments of other rules, which is a rescue rather than an explanation.

Page: https://tryals.app/practice/law-i/law-morality-custom-and-force/austins-command-theory-cannot-account-for-rules-that-confer-powers