Relationship Between Law And Morality

While explaining the core idea behind legal positivism, Fuller wrote, “The common objectives of all system of [legal] positivism is to preserve a distinction between the law that is and the law that should be or is trying to be.” This distinction between what is and what should be is the foundational idea separating law in the form of constitution and morality based on the distinction between good and bad. By creating a boundary between law and morality, the legal positivists thus try to theorize on the nature of law itself. The classical natural theory of law insists on a necessary connection between law and morality. Scholars like Jeremy Bentham, John Austin and Herbert Hart rejected this idea of necessary connection and proposed that while laws often procreate or satisfy moral principles, it does not prove the connection between the two to be necessary for law to function. This essay covers the debate over separation of law and morality as distinct identities in the light of the works conducted by legal positivists - with particular focus on Hart’s separability thesis in …show more content…
This can be interpreted as a proposal that necessarily there is no connection between morality and law or that the connection between law and morality is not necessarily true. However, Green explains that this is not what Hart had in mind while proposing his thesis of separability. The only connection on which Hart and other legal positivists after him emphasized was the connection of dependency. Green wrote “with respect to this dependency relation, legal positivists are concerned with much more than the relationship between law and morality, for in the only sense in which they insist on a separation of law and morals they must insist also--and for the same reasons--on a separation of law and economics.” Thus, it is less about morality and more about the independence of law as an