Positivism and the Separation of Law and Morals Author(s): H. L. A. Hart Reviewed work(s): Source: Harvard Law Review, Vol. 71, No. 4 (Feb., 1958), pp. 593-629 Published by: The Harvard Law Review Association Stable URL: http://www.jstor.org/stable/1338225 . Accessed: 15/02/2012 06:59
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VOLUME 71
FEBRUARY 1958
NUMBER 4
HARVARD
LAW
REVIEW
I
POSITIVISMAND THE SEPARATIONOF LAW AND MORALS t
H. L. A. Hart *
ProfessorHart defends the Positivist school of jurisprudence from manyof the criticisms whichhave beenleveledagainstits insistence on distinguishing law that is from the law that oughtto be. He the first insists that the criticshave confusedthis distinctionwith other Positivisttheoriesaboutlaw whichdeservedcriticism,and then proceedsto consider meritsof the distinction. the
N this article I shall discuss and attempt to defend a view
which Mr. Justice Holmes, among others, held and for which he and they have been much criticized. But I wish first to say why I think that Holmes, whatever the vicissitudes of his American reputation may be, will always remain for Englishmen a heroic figure in jurisprudence. This will be so because he magically combined two qualities: one of them is imaginative power, which English legal thinking has often lacked; the other is clarity, which English legal thinking...