The Relevance Of Legal Positivism

I have chosen to critically examine The Contemporary Relevance of Legal Positivism by Professor Brian Z Tamanaha who has written on this issue of legal positivism, and this is a legal theory that greatly interests me. Although title suggests otherwise, in his article Tamanaha argues a specific point that in its present state legal positivism does not build relationships "real life matters". Tamanaha continues on to suggest that legal positivism has been "emasculated" to the stage where it is no longer a relevant legal theory, as modern discussions on legal positivism have drastically shifted from the initial ideas of legal positivism proposed by Bentham and Austin. However, to make such claims effectively requires compelling evidence, and this is something that this article plainly lacks. Moreover, Tamanaha's article is packed with presumptions, which one can only just assume that he has misinterpreted many of the theoretical debates between key characters within legal positivism. As a result, this dissertation will argue that although Tamanaha makes some important points, overall there are too many inaccuracies within this article, which make it weak and unpersuasive.

There are three particular arguments that'll be pursued in this dissertation. Firstly, it will be argued that Legal Positivism does in fact deal with real world matters. Secondly, that the separation thesis supported by Hart is actually false and Tamanaha may have misunderstood his work. Thirdly, it'll be argued that Tamanaha's alternative is not the way to progress; in fact we ought to move in a completely different direction and focus more on science rather than descriptive theory.

Legal Positivism and Real World Matters

To commence with, we have to clarify that Tamanaha's article is not without value, as Tamanaha has made some valid arguments, which can't be disputed. Throughout his article, Tamanaha gives us a good account of what traditional legal positivism stood for and exactly how modern day legal theorists have transformed this important legal theory. Because of this, it is merely necessary to provide a brief account of the historical background of legal positivism at a later stage in the dissertation.

For now, we will turn our attention to the issues within the article, the most problematic claim in the Tamanaha article is one where he states that legal positivists have divided into two different groups whereby both argue about legal theories and "turn their backs on real life matters". That is something i strongly disagree with and will be spending a huge portion of the essay arguing from this point. Apologies are created in advance, as it may appear to the reader that people 're going off on the tangent but it'll become clear at the end of the section that Tamanaha has made a critical mistake in making this claim. My line of argument will be to check out Brian Lieter's writings in "Legal Realism and Legal Positivism Reconsidered" and dispute Tamanaha's statement through the link between American Legal Realism and Legal Positivism. Leiter argues at the outset the there are two common misconceptions within jurisprudence that he wants to rebuff. Firstly, that Legal Positivism and Legal Realism are not incompatible from a conceptual level. Secondly, that Legal Realism has been gravely misunderstood even by the central character of modern legal positivism, Hart.

It seems in Leiter's view that only by comparing Legal Realism to Legal Positivism on a conceptual level can Hart argue that they are opposed to each other. He adds on that "Positivism is essentially a theory of law-a theory, partly, in what is distinctive of any society's legal norms--Realism is essentially a descriptive theory of adjudication, a theory in what it is judges do when they decide cases. " In order for Legal Realism to work it must presuppose a theory of law and this is where according to Leiter Legal Positivism will come in. Leiter admits that Legal Realism cannot ascertain to be always a theory of law on a conceptual level because quite frankly could it be a "philosophical mess" but he shows that there are links between Legal Positivism and Legal Realism on an Empirical level. The empirical level will consider "if legal rules causally determine judicial decisions. " Leiter goes on to add that even though Hart was alert to this likelihood he hasn't given a convincing argument to dispute the link at the empirical level. You have to wonder why Hart stayed clear of such debates, was there something he was afraid of discovering.

Leiter is insistent that anyone writing on Legal Realism should grasp what it stood for before trying to define what it is or what it does. He adds on that many of the main characters within Legal Realism like Llewellyn, Frank, Radin, Moore, Yntema, Cohen, Oliphant, Green, and Hutcheson wished to achieve the purpose of "understanding judicial decision-making and, in particular, shared certain substantive views about how exactly adjudication does work. " Leiter presses the argument that Legal Realism is a descriptive theory about how judges actually decide cases based on the facts of the cases rather than looking at legal rules. Although, it does appear clear that judges can predict cases if indeed they fall within distinct patterns. This process allows judges and legal representatives to predict the results of the case where the facts fall within the "situation type" which the outcome of that type has already been determined. Oliphant clarifies this point when discussing commercial law and dealings between parties and the actual fact that judges may rely on "commercial norms" (i. e. what would reasonably be likely of both parties in this situation) to be able to decide a case.

Therefore, it seems that Realists wished to identify and describe the way in which decisions are created by judges. That is very similar to how conceptual analysis works, which demonstrates that there surely is some kind of link between Legal Realism and Legal Positivism. Legal Realists wished to push forward the idea of an "empirical theory of adjudication" as it gave us the best opportunity to fully understand judicial decisions. Naturally, such a theory would only work if Realists could actually 'presuppose' a preexisting theory of the concept of law.

Leiter, like many others before him makes it clear that Legal Positivism is a "theory of law or about the nature of law". What this tells us is that people must utilize this theory as a means of understanding and analysing our "concept" of law. This is a task that involves establishing the "criteria of legality" and deciding whether a certain norm is a legal norm. Leiter then covers the two most important theses of the Positivists' theory. The social thesis (which concludes it is society which decides what will count as law, "social fact") and the separation thesis (which states that the particular "law is and what it should be are separate questions"). If Leiter's work is read carefully, it will become clear where Hart went wrong in his analysis and the fact that Hart offers no conclusive arguments to rebut the connections between Legal Positivism and Legal Realism. So if Hart misunderstood Legal Realism himself it is inevitable that those who read Hart and interpret his work will be making the same mistakes.

There are two clear arguments as to why Legal Realism and Legal Positivism are connected. Firstly, both Legal Realists and Legal Positivists accept that law is indeterminate. According to Leiter, Realists argue that seeking to see whether a law is justified, based on "legal rules" has not worked before and that is not something that Realists want to do. Therefore, Realists only wanted to find out what it is which makes judges decide cases in this manner. Similarly, Hart accepted that legal rules are indeterminate because "there's a limit, inherent in the nature of language, to the guidance which general language can provide". This was because language is, in Hart's opinion, "open-textured":

"There will indeed be plain cases constantly recurring in similar contexts to which general expressions are clearly applicable ("If anything is a vehicle a motor-car is one") but there will also be cases where it is not clear whether they apply or not. ("Does 'vehicle' used here include bicycles, airplanes, roller skates?"). The latter are fact-situations, continually thrown up by nature or human invention, which possess only a few of the top features of the plain cases but others that they lack. "

This then helps it be clear that even the most celebrated 21st century legal positivist appreciates that we now have similar features between Legal Positivism and Legal Realism. The second argument is the fact that both Positivists and Realist concur that legal rules do not determine decisions in some cases. Realists for example argue that it'll be up to judges to choose the way the use a variety of tools available to them when interpreting previous decisions. As Llewellyn puts it judges contain the discretion to interpret an instance "strictly" or "loosely" and that generally their interpretation will be "recognised, legitimate, honorable". It is through adjudication that private parties, such as individuals or corporations are able to sort out legal disputes. Furthermore, adjudication will there be to review any disagreements between private parties and public officials. If then judges get excited about the legal process whereby they need to evaluate evidence and arguments presented to them about legalities surely this is something which can be considered 'a real world matter'. Tamanaha has failed to consider these sorts of arguments in his article and therefore has opened himself up to criticism.

Contrary to Tamanaha's argument, Legal Positivism does deal with real life matters, as adjudication is a genuine world matter. Legal Realism is about highlighting how law operates used, and Realists wished to locate law in its broader context (not separate). Leiter also highlights that Realists challenged the 'myth of legal certainty'- by highlighting indeterminacy of law. More importantly to your task here, it is clear that Legal Realism concerns law and study of law as an inherently practical activity from the "real world". As a result, these findings suggest that Tamanaha was wrong to make this erroneous claim without looking at the data to back up his premise. There are also lots of other faults with Tamanaha's article. So that they can convince the reader, Tamanaha has selected specific writings about legal positivism, which heavily criticise it in order to suit his side of argument, whilst ignoring arguments that are created towards legal positivism. He quotes Waldron who said that 'these analytical discussions have a tendency to be flat and repetitive in consequence, revolving in smaller and smaller circles among a diminishing band of acolytes'. What Waldron believes is that we should go back to traditional legal philosophy to be able to improve our knowledge of the concept of law. He states that in legal philosophy:

"there may be less of a sense of a canon of great books stretching back again to the dawn of their time. When there is canonical work it is H. L. A Hart's book, The Concept of Law, which analytical jurists study and over (and the squabble amongst themselves in regards to what this means and whose position is now closest to what Hart's is taken up to be). Since Hart Developed his theory by criticizing the nineteenth-century jurisprudence of John Austin, addititionally there is some half-hearted discussion on Austin's work. Beyond that however, the canon of legal philosophy is attenuated and non-existent. "

Of course, it holds true that there was not any standout publication on legal philosophy after Hart published The idea of Law, but that does not mean that we ought to go back to the original ideologies on legal philosophy. Hart proved that some of the original ideas behind legal philosophy are unpractical in a modern society thus is it unproductive to keep applying them when trying to see our concept of law. So common sense and reality would make us reject what Waldron suggests. Tamanaha then considers Twining, that has asserted that positivist debates are actually 'repetitious, trivial, and almost entirely pointless'. Twining results in as a great admirer of Bentham whose work is highly valued, however, Twining believes that Bentham shouldn't remain as a historical figure in legal philosophy. For Twining Bentham's "version of legal positivism; a more flexible and subtle conception of sovereignty than Austin's; his penetrating attack on natural right; his progressive ideas on punishment; and his theory or adjudication" remain important topics. Actually, Twining goes one step further to suggest that we should go beyond Bentham's work and appearance at the work of Augustine and Plato to help us understand issues we deal with today. Whilst Bentham's work was crucial, it is important to remind ourselves that what he produced was suited for the 19th century, thus it appears unlikely that it will be beneficial in working with issues in a modern-day society. With regards to going beyond Bentham, it is impossible to conceive how ancient ideologies would help us deal with modern issue and for that reason Twining's suggestion is on the verge to be absurd.

Tamanaha also refers to Schauer's work to argue that 'large numbers' of American law professors think that 'analytical jurisprudence generally, and the debates about legal positivism in particular, will be the largely irrelevant preoccupation of a tiny band of socially unaware but philosophical obsessed pedants'. The easy explanation to this is that almost everyone involved with legal philosophy is a positivist. Even Tamanaha accepts that legal positivism is the dominant legal theory of law, as the first paragraph of his article states that: "Most legal philosophers agree that legal positivism is the dominant theory of law today. " As a result, it is rather difficult to argue on anything more than marginal issues as the key issues have been completely arranged.

Therefore, until we have another philosopher like Dworkin or Hart who's able to produce new and radical ideas, unfortunately, marginal arguments is all that is left for modern legal positivists to debate. Tamanaha has presented some inconsistent arguments in support of his position. Right at the outset, he admits that legal positivism is "by far the largest camp within legal theory" but at the same time attempts to argue that it is no more relevant. It really is simply irrational to describe a theory as being both dominant and irrelevant at the same time, Tamanaha has either lay out his article to be extremely provocative, or he has not really planned his arguments.

Nonetheless, Tamanaha then progresses to explaining why legal positivism has reached this point of being irrelevant. One of his arguments is the fact "for a lot of its existence, the principal foil for legal positivism has been natural law theory. But natural law theory no more gets the primacy it once did. " Yet, Tamanaha then says that due to the agreement reached by natural law theorists and legal positivists on certain issues legal positivism has 'lost and important reason behind being'. It really is astonishing what sort of professor who, according to Washington University in St Louis, is a "renowned jurisprudence scholar and author" would get this to sort of argument. Natural law theory may have hampered the entire domination of legal positivism but Tamanaha himself admits that natural law theory 'no longer gets the primacy it once did'. How do a legal theory lose grounds for being if it is still the dominant theory after all this this time around? Actually, Tamanaha is totally wrong as legal positivism is easily the best theory of law and there does not seem to be always a theory out there that can match it. Tamanaha seems to be confused as to what legal positivism means, namely that this seeks to provide a better understanding of the 'nature of law' and when a new idea comes along positivists are prepared to adopt it. Churchill once said, "I am an optimist- it generally does not seem to be much use being other things. " It is becoming clear that Tamanaha's reasoning as to why legal positivism is at a problematic state is totally flawed as natural law only had a marginal influence on the dominance of legal positivism.

The most surprising error in Tamanaha's article is his attribution to Hart's success in the idea of Law as on one of the reasons legal positivism has reached this point. Tamanaha writes that Hart "established the parameters of the current knowledge of legal positivism". Tamanaha continues on to add that "legal positivism today remains trapped within Hart's paradigm. " Either Tamanaha has misunderstood Hart's writing or he has completely failed to grasp it. Hart made it clear in The idea of Law that his interpretation of the concept of law is "quite 'open' for the reason that it generally does not forbid the extension of the word. " Therefore, how do legal positivism be 'trapped in Hart's paradigm' if Hart himself has admitted that is not a conclusive answer of what the concept of law is which every once in awhile this term should be expanded to become applicable in a modern society. Tamanaha could at least afford Hart the thanks to fully reading and understanding his work before making such erroneous presumptions, which do not portray Hart's objectives.

Yet, Tamanaha's misinterpretation of Hart's work does not stop there. One of is own other arguments is the fact legal positivism through the separation thesis allows us to be in a better position to challenge evil law. Tamanaha relies on a quote from Hart who said that:

"So long as human beings can gain sufficient cooperation from some to enable those to dominate others, they'll use the forms of law as you of the instruments. Wicked men will enact wicked rules which others will enforce. What surely is most needed to make men clear sighted in confronting the state abuse of power, is that they should preserve the sense that the qualification of something as legally valid is not conclusive of the question of obedience, and this, however great the aura of majesty or authority that your official system may have, its demands must in the long run be submitted to a moral scrutiny. "

According to Tamanaha, only if we separate the question of law and morality we can maintain a position to guage whether a law is moral or not, Tamanaha writes that Hart is "Reminding everyone of the separation between law and morality, according to this view, should allow citizens and legal officials to identify, resist, and disavow evil law. " To operate a vehicle this aspect home Tamanaha also depends on Schauer's work, but in a few pages within the same work Schauer concludes that the separation of law and morality does not necessary allow people to resist bad law. To add further misery to Tamanaha's argument, Bix writes that we now have no conclusive arguments "either logical or psychological, for favouring legal positivism or natural law theory (or any other alternative) for the resistance to evil law. " Again, Bix is another source Tamanaha has quoted in his article but somehow he has either misread his own sources or has chosen to simply construct them in a way which would better suit his argument. In conclusion, it has become clear that Tamanaha has presented lots of unfounded arguments, which can certainly be rebutted. Actually, some of his arguments come across as unprofessional which is surprising that that somebody who is respectable in legal philosophy would see any value in presenting such arguments to the reader. Having found out that Tamanaha's declare that legal positivism does not hook up with real life matters is misguided, we will now move on to the second part of the dissertation, which will argue that unlike Tamanaha's belief the separation thesis is actually false.

Separation Thesis is False

One of the key arguments Tamanaha makes in this article is that the shift away from traditional legal positivism has had a wider affect to the point that you of the fundamental ideas behind it namely, the separation thesis, has been considerably transformed to a point where it no longer resembles the original ideas. Looking at legal philosophy from a historical context, it is clear that Bentham's contribution helped form the way in which law is perceived today. Because of this, it might be extremely difficult to discuss legal positivism without mention his work. Classical legal positivism as portrayed by Bentham and Austin shows that the idea of law is simply a command of the sovereign, which obliges subjects to obey regulations and provides official authority to handle punishment. Modern legal positivists adopt a somewhat more sophisticated method of the idea of law, but, like their distinguished predecessors, they deny the relationship between law and morals.

Bentham single-handedly sought to transform English common law to be able to achieve a larger good in society. Through his critical analysis of the common law Bentham managed to get possible to construct a thorough theory of law. Bentham wanted to unmask the true meaning of the normal law and make every one of the common law's misconceptions clearer. In his opinion, the common law was so indeterminate, and in such chaos that it was near to being pervasive. His main argument was that in order to accomplish clarity and certainty common law had to be written and recorded in a manner, which could be traced when a similar legal issue arises, thus allowing for them to be deal with in the same manner throughout England. Bentham wished to organise the normal law in a manner that it could control the behaviour of society as citizens could have a clearer idea of how they would be punished if they disobeyed the law. Furthermore, by systematically setting these rules it meant judges had less power in making the law and it managed to get simpler to understand your rights and obligations.

John Austin followed in the task of his predecessor as he advocated the idea of commands as notions of law. Austin was concerned about state power and which laws subjects were required to obey. It could be argued that both Bentham and Austin wanted to achieve a greater understanding of the principal features of the law. However, it's been suggested that Austin's definition of law as commands is bound in its application only to criminal law. Furthermore, other writers have observed that whilst Bentham was worried about an individual 'complete law' Austin wanted to create a science of law. Austin also made it clear that what the law is and what it should be are two separate questions and they should stay separate. It really is in without doubt that Bentham and Austin laid the foundations for modern legal positivism. However, their ideas have been considerably refined, developed, and even rejected, by contemporary legal positivists.

H. L. A. Hart is often credited with providing a far more sophisticated account of legal positivism than provided in Bentham and Austin's writings. In doing so, Hart advises us that we must apply analytical, linguistic and philosophical ways to the study of law in order to achieve a larger understand of the concept of law. In The Concept of Law, Hart made this point clear from the outset in the preface that his task is about obtaining a "descriptive sociology" [or quite simply, hermeneutic description] thus a deeper meaning in the nature of words and law. Hart considers legal concepts and the ideals we might have about regulations and legal systems in another type of viewpoint. He asks questions which was not asked before, focusing specifically on the conceptual context of law. Whilst advocating some of the previous ideas about legal positivism, Hart strenuously denies that law should be observed as an imperative theory of law. Hart's interpretation of positivism is totally different to the accounts distributed by Bentham and Austin. This can be because society has changed significantly since their time; because of this, modern-day legal positivism focuses less attention on the coercive picture of law. Hart made it clear that the only way to understand the real nature of law is to check out actual social practices that apply within our own communities.

Law, in Hart's analysis, is a system of rules, which our society constructs and transforms as time goes on. Legal rules are divisible into 'primary rules' and 'secondary rules'. Primary rules prohibited committing certain acts which would have jeopardised the close coexistence in our community (e. g. theft, murder etc. ). However, as a society becomes more complex, there is actually a need to change these primary rules, hence why Hart advocates secondary rules. Unlike primary rules, secondary rules do not generally impose duties, but usually confer power to adjudicate on breaches of primary rules, and identify which rules are in reality obligation rules. For Hart, there are "two minimum conditions necessary and sufficient for the existence of a legal system". These are that:

"those rules of behaviour that happen to be valid according to the system's ultimate standards of validity must be generally obeyed, and its rule of recognition specifying the conditions of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of officials behaviour by its official's. "

As already pointed out, Hart rejects Austin's idea of rules as commands, and the idea that rules are phenomena that consist merely in externally observable activities or habit. Instead, Hart asks us to consider the social dimension of rules, namely the way in which where members of the society perceive the rule involved, and their attitude towards it. As we've seen Hart gives us in depth guidance how we can best understand the nature of law.

Finally yet importantly, Hans Kelsen also provides his own take on what legal positivism means via his 'pure theory of law'. Some have argued that Kelsen's theory of law is complicated to understand hence why it has not been so influential. Essentially, his pure theory of law wants to define legal systems as 'oughts' or norms. This does not seem ambiguous initially but Kelsen complicates the idea himself by acknowledging that law isn't just constructed by norms, but it is made up of legal norms and legal acts as determined by these norms. As a result, although Kelsen's work may be important, it is not close to as influential as Hart's work. That is evident in the fact that Kelsen's pure theory of law is not usually covered in many debates in modern legal positivism, and therefore only a brief summary of his theory is given here. Having looked at a short account of the key ideas behind legal positivism, we can move on to see where Tamanaha went wrong in interpreting Hart's work.

When analysing the separation thesis, Tamanaha identifies a Hart article titled 'Positivism and the Separation of Law and Morals'. One has to worry whether Tamanaha has taken this title because of its literal meaning rather than scrutinising the key ideas within this article. Tamanaha argues a volume of things have happened to the separation thesis, which includes weakened its position within legal positivism:

"The transformation of the separation thesis into an abstraction was completed with a vengeance in the latest version promoted by inclusive legal positivists, which reads: 'Separability Thesis: There is certainly some possible legal system where in fact the legality of a norm does not depend on any of its moral properties. ' The separation thesis-with the telling new label 'separability' thesis-now asserts that 'there exists a conceptually possible legal system where the legal validity of any norm does not depend on its moral merits. ' No longer about actually existing legal systems, the separability thesis is a purely abstract proposition about the nature of your legal system. " Tamanaha adds that:

"the semantic thrust of the separation thesis is reversed, from a warning that we shouldn't assume law is moral just because it is law, to a confirmation that law and morality are not often separate, holding out from conceding the complete merger of the two by insisting only that it is possible to abstractly conceive of a legal system in which this combination does not hold. "

Tamanaha appears to place significant amounts of weight on Hart's work yet he overlooks the fact that it was Hart who in the idea of Law, transformed ideas about legal positivism. A number of the key ideas behind traditional legal positivism lead by Bentham and Austin were developed to meet the needs of society at that one time. That is evident in the fact that Hart was able to dismiss many of their ideas simply because we're able to not apply them in a modern society and there were better solutions to understand the nature of law. Moreover, it is doubtful whether any legal positivist today would declare that they will not adapt new ideas or even new theories if they saw them as practicable and appropriate. Therefore, it seems that the simple explanation as to why there's been a split in the camp of legal positivism is the fact in order to be in a position to apply legal positivism in modern times, theorists have tried to embrace the merger of law and morality:

"Soft [inclusive] positivists interpret the Separation Thesis as involving only a modal, existential generalization of the next form: it is (conceptually) possible that there exists at least one rule of recognition, and therefore one legal system, where morality is not really a criterion of legal validity. Hard [exclusive] positivists, in comparison, interpret the Separation Thesis as requiring a universal generalization of the form: for all rules of recognition, hence for many legal systems, it is not the truth that morality is a criterion of legality, unless some content- neutral criterion helps it be so. "

It seems then that because legal positivism has had the opportunity to adapt it did the contrary of what Tamanaha claims, as it continues to be relevant in contemporary times. Nonetheless, Tamanaha then moves on to provide an alternative thesis, which would make legal positivism relevant again. His alternative is the fact that:

"The Separation Thesis: what law is and what law ought to be are separate matters, irrespective of actual or possible connections of law and morality. This is a cautionary reminder that law can be bad even when it claims to be good. It applies to all manifestations of law whatever their purported relationship with morality, including those which expressly derive from, make reference to, require decisions about, or incorporate moral norms"

First of all, why should we make it harder for ourselves to comprehend the nature of law by applying such a strict standards to the separation thesis. If we are able to question different facets of the type of law, then surely that will gives us an improved opportunity to understand it. In addition, if we are to follow Tamanaha's proposal, it could put an end to any research into the possibility of a link between law and morality, and there is a lot of research, which suggests that there are some important links which we should not overlook. Tamanaha gives us a one sided story which will not carry out a complete investigation as to the reasons we should completely rule out any link between law and morality. Nonetheless, Tamanaha is adamant that if we do this we will "turn from the abstract orientation of inclusive and exclusive accounts and return in spirit to the original thrust of legal positivism, so that it is directly relevant to the modern day situation. "

Tamanaha's work has double standards as he relies on Hart's work to argue in favour of the separation thesis but suggests here that we should disregard inclusive legal positivism altogether towards his 'superior alternative'. Hart made it clear in the idea of Law that he preferred inclusive positivism to exclusive positivism, as it was a much better expression of his aims and objectives. So mistakenly, Tamanaha presupposes that Hart was of the same judgment as him, but had he carefully read Hart's work, he'd have understood that was not the truth. Tamanaha states that "At the outset he [Hart] presented legal positivism as 'the history of an idea', which is: 'the need to distinguish, firmly and with the maximum of clarity, law as it is from law as it ought to be. " However, once we will quickly realize from our investigation below this is really not the case as Hart's work has clearly been misinterpreted.

For Tamanaha, recognising the separation thesis as the core of legal positivism will enable us to identify which laws are immoral. Hart has explained that "Both thinkers' [Bentham and Austin] prime reason for this insistence [on recognizing the separation between law and morality] was to permit men to see steadily the precise issues posed by the existence of morally bad laws. " However, one point, which is never considered by Tamanaha, is whether Hart himself was wrong in this interpretation, can it be possible that what Bentham and Austin wanted is not what has been portrayed by Hart. Hart's book The idea of Law has received very much attention that hundreds if not a large number of papers have been published by many who simply take his word for it. Among the explanations why his work has been one of the most important within legal philosophy is that theorists are cautious about questioning his work (presumably worried that they could suffer the same fate as Dworkin). It seems that Tamanaha has been overwhelmed by Hart's work, as he seems to value his work tremendously:

"Another factor is the dominance in neuro-scientific H L A Hart, specifically of his extraordinary book The idea of Law (1961). It overstates matters to assert that legal positivist works today are mere footnotes to Hart's canonical text, but there is no question that he established the parameters of the current understanding of legal positivism. Legal positivism today remains trapped within Hart's paradigm, consigned to working out its implications, whether using refinement, partial repudiation, clarification or extension. Hart's lengthy intellectual dominance, continuing through two generations of scholars without sign of diminishment, shouldn't be interpreted in negative terms. "

One cannot help but obtain the impression that Tamanaha believes that if he keeps quoting Hart as and authority throughout his article it'll make his work more credible. Hart has admitted within his work that his idea of law is not the final say as he realises that there will come a period when it might not be relevant or good for rely on his ideas. Moreover, we can dismiss Tamanaha's arguments in several different ways. Firstly, the separation thesis was not something that were endorsed in early legal positivism, so inevitably through Hart's misinterpretation Tamanaha has fully endorsing the separation thesis by dedicating the majority of his article upon this point. Others also have disputed the separation thesis, Green adds that; "That thesis, however, is false. " Green sheds light on the actual fact that Hart did not intend for readers to assume that law and morality should be "kept separate" or that law and morality are in fact "separated". Fuller is a prime example of someone who had been mistaken in convinced that Hart intended that "law must be strictly severed from morality". Just like Fuller, Tamanaha seems to be of the strong judgment that law and morality must be kept separate at all costs. This belief may arise from Austin's work who have stated that:

"The existence of law is a very important factor: its merit or demerit is another. Whether it be or not be is one enquiry; whether or be not conformable to a assumed standard is another type of enquiry. A law, which actually exists, is a law, though we happen to dislike it, or though it change from the text, by which we regulate our approbation and disapprobation. "

It is at without doubt that Bentham and Austin laid the foundations for modern legal positivism. However, as Hart obviously demonstrated some of their ideas have became impractical. Some have suggested that the thesis is "hopelessly ambiguous" and that the debates on the separation thesis have been "entirely pointless. " Green however argues that the separability thesis is "not ambiguous, nor absurd, nor obvious. On the other hand it is clear, coherent, and false, " which is in stark contrast to the position Tamanaha has taken in his article.

According to Green, "Hart's methodological neutrality is no more than the claim that general jurisprudence must not arrive precommitted to conclusions about the moral value of law. This neutrality will not prompt or preclude any conclusions, nor will it really presume other kind of value-neutrality. " In other words, taking into consideration the nature of law from a neutral point of view does not prohibit research into possible and necessary connections between law and morality. And undoubtedly, if we were to discover such connections it will not automatically imply that it is morally good or bad that those connections exist. In addition, Hart only suggested that it might be more good for understand the nature of law if we consider it from a neutral point of view. Yet, it was Hart himself who later believed; "There are many different types of relation between law and morals and there is nothing which can be profitably designated for study as the relation between them. " So the question is why should we take Hart's word without examining these connections, in order to choose for ourselves if they are necessary? It appears that one too many writers in legal philosophy including Tamanaha, have blindly chosen to take Hart's word on everything he has said without once enquiring into his arguments.

Any argument that is put up before Hart about the connections between morality and law, is answered by simply saying "it ain't necessarily so. " In addition to this Hart has claimed, "It is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality. " Plausible as this reply may be (or not as I believe) it isn't really a means to fix the question, it is only armchair conceptual analysis. To make it clear where Tamanaha is going wrong in his arguments we must understand what the separation thesis is absolutely about. It appears then that the half-century debates within legal positivism have been about disputing that there are necessary connections between law and morality. What is interesting is the fact according to Green "The separability thesis permits any sort of contingent connection between law and morals. But what, precisely, is the difference?" Hart himself will not deny that there surely is some sort of contingent connection between law and morality, as he states that: "there is absolutely no important necessary or conceptual connection between law and morality. " This shows that he is aware that there may be necessary or conceptual connections but side steps fully accepting it by saying there are no important connections. Due to the fact Hart is regarded as one of the leading modern day legal positivists, you would expect a more in-depth explanation as to the reasons none of the contingent links are essential. Tamanaha has failed to talk about these sorts of arguments or question some of Hart's work to be able to determine whether he was right. Furthermore, Green has strongly disputed what Hart suggested, as he believes that after closer inspection we will discover that:

"Necessary and contingent aren't contradictories. From your denial that we now have necessary moral tests for the existence of law, it does not follow that we now have contingent moral tests. There could be none in any way. Thus, the separability thesis lends no support to Hart's view that as a contingent matter, in a few legal systems, the existence of law does be based upon its satisfying moral tests. "

As a result it seems that it is not possible to get contingent links if there are no necessary links. Hart might have made things easier by discussing connections which might be significant or insignificant but that could have meant admitting that we now have connections between law and morality and eventually that the separation thesis is false. Because of this, Hart will not deny that there may be connections but neither does he accept that there may be necessary connections. You can only assume that Hart chose this neutral position as support to either side would draw vast amounts of criticism from other legal philosophers. In essence, it is clear that even Hart's analysis of the issues could be interrogated as he has avoided getting involved with this discussion. We will now move to discuss a few of the links and argue these are actually important connections that demonstrate that the separation thesis has been fabricated by Hart and misunderstood by many.

Green argues that there are derivative connections between law and morality. He observes that:

"Legal systems make moral norms determinate; they supply both information and motivation that help make those norms effective; they support valuable forms of social cooperation. Human nature being what it is, it is overwhelmingly likely that the right will come of all this, if only as a matter of natural necessity. "

In short, what is being proposed here's that certain laws set up a moral duty to obey them. Fuller strongly opposed this position as he believed that, "law must be strictly severed from morality. " According to Fuller, it is impossible to have "an amoral datum called law, which has the peculiar quality of fabricating a moral obligation. " To a certain degree Fuller is right, if law was to be judged from a neutral viewpoint, we cannot at exactly the same time claim that it creates moral obligations to obey it. However, such a posture could only be imagined if maybe it's proved that we now have zero connections between law and morality, only then would we have the ability to say that we are considering law from a neutral viewpoint. Anyhow, there is no moral duty to obey the law if law and morality are kept completely separate which is something that Fuller will not appreciate.

More importantly, it seems that Hart was also aware of these sort of arguments as he concludes that there are "two reasons (or excuses) for talking of a certain overlap between legal and moral standards as necessary and natural. " Hart talks about the "minimum content" thesis and "formal-justice. " According to Hart, it is difficult to recognize a legal system by looking at its structure alone, we must look at the content of law and how it operates to market the 'survival of its subjects'. Hart then explains that in most jurisdictions there may be some form of administrative justice. Hart stops in short supply of admitting that there are necessary connections between law and morality when he concludes, "[T]hough the most odious laws may be justly applied, we've, in the bare notion of applying an over-all rule of law, the germ at least of justice. " This then shows that Hart was on the verge of admitting that the separation thesis does not actually exist. Yet, Tamanaha hasn't questioned these statements by Hart, which is surprising to say the least as his failure to research Hart's work has resulted in his arguments being completely wrong. Additionally, if it's the case that the separation thesis is false it might be impossible for Tamanaha's alternative to work as his ideas mainly give attention to emphasising the importance of the separation thesis.

Having discovered that the separability thesis does not deny that there surely is a derivative connection between law and morality, we will consider some direct connections between law and morality. Green states that the first connection is the fact "Necessarily, law regulates objects of morality. " What this suggests is the fact law and morality are interlinked as much laws that are created will be in location to meets the objects of morality. Laws are occasionally enacted to regulate matters which society believes to be important (for example until recently gay couples were not permitted to be married as society felt that this interfered with the original institution of marriage advocated by the church- a form of religious purity). This does not imply that every legal system has moral merit, but it shows that there may be "necessary relations between your scope of law and morality. "

Green adds that "Necessarily, law makes moral claims of its subjects. " This means that law does not simply guide us in regards to what we have to do, but in effect, it gives us obligations as to how exactly we should act, for either personal or public interest. The truth is, most western legal systems have norms which impose obligations on its citizens, of course, if these obligations are not completed the legal system claims legitimate authority to impose sanctions. Green notices that using this method regulations is in a sense treating its subjects to be morally bound to obey it, as trivial as this connection might seem, it plainly demonstrates that there is a link between law and morality. Hart himself denied such a link between law and morality when he stated that: "[I]t appears to me to be unrealistic to suppose that judges. . . must always either believe or pretend to trust in the false theory that there surely is always a moral obligation to comply with regulations. " It really is unclear as to why Hart would make such a statement but you can only assume that if he were to accept such an argument it could question the existence of the separation thesis.

The next argument Green makes is the fact "Necessarily, law is justice-apt. " By this he means that law is open to criticism and investigation into whether it's justifiable or whether there is a need for reform. It generally does not follow that laws are justice-apt, but the fact that we can praise or criticise law to be able to accomplish justice that there surely is an important and necessary connection between law and morality. Again, Tamanaha's arguments fall short of any such analysis, which illustrates that he has taken Hart's word in every of his work, rather than examine it in a proper manner.

The final point maintained by Green is that there is also another important negative connection between law and morality, namely that "Necessarily, law is morally risky. " What Green gets at here is that we shouldn't always think of law as having this overarching character, which aims to attain good. Hart himself advocated this sort of ideology by saying that as society undergoes transformation and population rises it'll be harder to keep up legal order, thus, why he may assume that law holds the response to fixing this issue. Hart is suggesting that people may use law to accomplish greater good in society. However, this is not always the truth, as regulations may also be utilized by officials to oppress our communities with certain laws that are claimed to be morally justified. Nonetheless, the main point is that that law can be 'morally risky', because of this, there is a necessary connection between law and morality but this is a different kind of connection relating to certain 'vices' of regulations. Other legal theorists also have casted doubt on the existence of the separation thesis.

Gardner has strongly declared that the separation thesis "is absurd and no legal philosopher of note has ever endorsed it as it stands. " The question that arises is how do a leading legal theory attract anywhere near this much misunderstanding? The explanation can only be that Hart has misunderstood much of Bentham and Austin's work, particularly, Austin who mentioned that "the existence of law is one thing; its merit or demerit is another. " Gardner makes the idea that "After all, there's a necessary connection between law and morality if law and morality are necessarily alike at all. And undoubtedly they are really. If nothing else, they are really necessarily alike in both necessarily comprising some valid norms. " This is nearly the same as the arguments proposed by Green and even though this isn't a considerable link, it still substantiates that there are links between law and morality. In a recent paper, Gardner has argued that law and morality are connected as even though law is portrayed as being bad it still makes moral claims about being justified. He argues that:

"Whole legal systems may, indeed, be run by cartels of self-serving officials for whom the machine is primarily a more elaborate extortion racket or a huge joke. Here law has no moral aims. Yet all legal officials, even in that system, must at least pretend to have moral aims when they act in their official capacities. "

Raz also backs up this view, as he believes that officials can make moral claims on behalf of law. Moreover, Gardner adds that: "Law makes moral claims, so when it creates those claims sincerely it includes moral aims, so when it succeeds

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