On The Separability of The Law and Morality

Kramer 21 6/6/4 8:31 PM Page 1
On the Separability of Law and Morality

Matthew H. Kramer
If there is one doctrine distinctively associated with legal positivism, it is the sep-
arability of law and morality. Both in opposition to classical natural-law thinkers
and in response to more recent theorists such as Lon Fuller and Ronald Dworkin,
positivists have endeavored to impugn any number of ostensibly necessary con-
nections between the legal domain and the moral domain. Although jurisprudential
positivists characteristically occupy themselves with quite a few other analyses and
contentions as well, of course, their principal aim has been to establish that the
essential properties of law do not include moral bearings (irrespective of whether
morality is understood in contrast with immorality or with prudence or with fac-
tuality). Such is the prevailing view of legal positivism among people familiar with
jurisprudence, and that prevailing view of the tenor of positivism is accurate.
During the past couple of decades, however, the prevailing view has come into
question among some estimable legal positivists. In particular, Joseph Raz and his
followers have queried the importance and the very tenability of an insistence on
the separability of law and morality. Some other positivists, influenced to varying
degrees by Raz, likewise doubt whether such an insistence is a key component of
the positivist outlook. The present article will maintain that their arguments in favor
of their skepticism toward the traditional image of legal positivism do not succeed.
When the notion of the disjoinability of law and morality is understood properly
as a multiplicity of theses, it proves to be resistant to the challenges that have been
mounted against it.
I. Missed Connections
Let us begin by looking at a rather curious argument from the Razian camp. John
Gardner, a staunch and perceptive defender of Razian positions, has recently derided
any ascription to legal positivism of the thesis that there are no necessary connec-
tions between law and morality. Asserting that the attribution of such a thesis to
jurisprudential positivism is the propagation of a myth, Gardner writes: “This thesis
is absurd and no legal philosopher of note has ever endorsed it as it stands. After
all, there is a necessary connection between law and morality if law and morality
are necessarily alike in any way. And of course they are. If nothing else, they are
necessarily alike in both necessarily comprising some valid norms.”1 Exactly why
someone as astute as Gardner has opted for such a wooden approach to the matter
is not clear.
We can tell that something has gone amiss, by the fact that Gardner’s argument
would support the postulation of necessary connections between morality and abso-
lutely anything else. For example, morality and the planet Jupiter are alike in that
1. John Gardner, “Legal Positivism: 5_ Myths” 46 (2001) Am.J. Juris.199 at 223, emphasis in orig-
inal, footnote omitted [hereinafter Gardner, ”Myths”].
Canadian Journal of Law and Jurisprudence Vol. XVII, No.2 (July 2004)
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neither of them is a custard pie. They are further alike in that neither of them is
a piece of blank paper. And so forth; the similarities of this sort between morality
and Jupiter are truly innumerable. By Gardner’s lights, then, the necessary con-
nections between the two are innumerable. Much the same can be said, of course,
about the necessary connections between morality and anything else (such as cus-
tard pie or blank paper). Hence, any claim that there are no necessary connections
between morality and Jupiter is false, strictly speaking. Yet, in most contexts, to
gainsay such a claim would be more risibly misleading than to affirm it. If there
is ever an occasion for a denial of necessary connections between morality and
Jupiter, the denial will almost certainly be put forward as an approximation that
is illuminating and true in all germane respects. It will not be put forward as a
proposition that is strictly true in all conceivable respects. It is a convenient bit of
shorthand that suitably draws attention to the features of Jupiter—such as a lack
of any nontrivial bearing on the satisfaction of human interests—which endow that
planet with the status of a non- moral phenomenon. Nothing worthwhile is gained
by one’s pointing out that such a shorthand formulation is not strictly true in every
conceivable respect.
To be sure, the connections between morality and law are considerably more
salient than the connections between morality and any of the non-moral phenomena
mentioned in the preceding paragraph. Law is by no means a non-moral phe-
nomenon.2 Gardner is correct when he declares that “there are many other necessary
connections between law and morality on top of this rather insubstantial one
[namely, the fact that each of them consists of norms],” and he is likewise correct
in observing that “legal positivists have often taken great pains to assert [some of
the law-morality connections]” (Gardner, “Myths” ) at 223). Nevertheless, his mis-
step is basically the same as the misstep committed by somebody who would balk
at the claim that there are no necessary connections between morality and a blank
piece of paper or a planet. That is, Gardner is dismissing an approximation as if
it had been articulated by positivists as something other than a rough summation
of their positions. In the case of the relationship between law and morality, the pre-
cise truth behind the “no necessary connections” slogan is that positivists deny the
2. Leslie Green suggests that somebody who insists on the separability of law and morality will
be obscuring the fact that law is not a non-moral phenomenon. See Leslie Green, “Legal
Positivism” in Edward Zalta, ed., Stanford Encyclopedia of Philosophy (Stanford, CA: Stanford
University Press, 2003). URL = http://plato.stanford.edu/archives/spr2003/entries/legal-posi-
tivism/. However, as I have endeavored to emphasize in my In Defense of Legal Positivism
(Oxford: Oxford University Press, 1999) at 122-25, 189-91, 200-04 [hereinafter IDLP], such
a suggestion is inapposite. When legal positivists insist on the separability of law and morality,
they are referring to morality in three senses: morality contrasted with immorality, morality con-
trasted with prudence, and morality contrasted with factuality. They are not also adverting to
a division between moral matters and non-moral matters, and they are therefore not submitting
that law belongs on the non-moral side of such a division. That is, nobody has ever maintained
that legal norms and decisions have no significant bearing on the interests of the people affected
by them. Nor, consequently, has anyone ever maintained that legal norms and decisions are not
appropriately subject to moral appraisal. Silly theses asserting the non-moral character of law
can be eschewed, and are eschewed, by theorists who affirm the separability of law and morality.
We can easily see as much when we disentangle the different ways in which morality is to be
understood.
On the Separability of Law and Morality 3
necessity of nearly every one of the major law-morality links that have been pos-
tulated by various natural-law theorists. Anyone familiar with the debates between
positivists and their opponents should be able to construe the aforementioned slogan
appropriately, as a result of being acquainted with the sundry theses that together
constitute the positivist insistence on the separability of law and morality (theses
about which more will be said later). So long as the “no necessary connections”
formulation is understood with reference to those debates, it will be recognized
as an approximate recapitulation of the positivist theses rather than as a boldly inde-
pendent affirmation that goes untenably beyond them. In its broadly recapitulatory
role, it is no worse than the many other approximations that sum up complex philo-
sophical positions. (Similarly, it is no worse than the countless approximations that
crop up in other contexts. If a historian contends that there were no connections
between the assassination of James Garfield in the United States in 1881 and the
assassination of Indira Gandhi in India in 1984, a Gardnerian interpreter would
pronounce such a statement to be false; after all, each assassination occurred in
space and time, each involved a victim whose surname began with “G,” each
involved the killing of the leader of a large nation, and so on. By contrast, when
the historian’s statement is correctly construed as a pithy disaffirmation of many
specific links that might be posited between the two murderous events, it is very
likely true. Anyone who genuinely engages with the historian as an interlocutor
will opt for the latter construal of his claim.)
Dealing in a heavy-handed manner with the “no necessary connections” for-
mulation, Gardner is led to reprove H.L.A. Hart for using that formulation. He
writes that Hart’s “apparent endorsements of [the ‘no necessary connections’ slo-
gan] must be read as bungled preliminary attempts to formulate and defend [a much
narrower version of legal positivism]” (Gardner, “Myths”) at 223). Instead of
upbraiding Hart for bungling, we should recognize that his employment of the “no
necessary connections” language was in the same spirit as his repeated invocation
of the phrase “separation of law and morals.”3 He used such expressions as short-
hand for an array of theses with which he denied “that there are any important nec-
essary connections between law and morality.”4 Undoubtedly most prominent
among those theses was an affirmation of the distinction between the law as it is
and the law as it should be—a distinction which, in its Razian guise, is central to
Gardner’s own understanding of legal positivism. However, Hart went beyond that
affirmation and contested many other supposedly necessary links between law and
morality. For example, he persistently maintained that the motivations underlying
officials’ compliance with rule-of-law requirements can credibly be prudential
rather than moral.5 He likewise assailed Fuller’s contention that the basic formal
3. H.L.A. Hart, “Positivism and the Separation of Law and Morals” in Essays in Jurisprudence
and Philosophy (Oxford: Clarendon Press, 1983) 49 [hereinafter Hart, ”Positivism”].
4. H.L.A. Hart, “Introduction” in Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press,
1983)1 at 6 [hereinafter Hart, “Introduction”].
5. See, e.g., H.L.A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961) at198-99 [hereinafter
Hart, Concept].
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characteristics of legal norms and legal systems constitute an inner morality of

law.6
Hart made clear from the outset that he was advancing more than a single thesis
when insisting on the separability of law and morals. In the opening paragraph of
the essay to which Gardner principally refers, Hart set the stage for his defense
of positivism as follows:
Contemporary voices tell us we must recognize something obscured by the legal ‘pos-
itivists’ whose day is now over: that there is a ‘point of intersection between law and
morals’, or that what is and what ought to be are somehow indissolubly fused or insep-
arable, though the positivists denied it. What do these phrases mean? Or rather which
of the many things that they could mean, do they mean? Which of them do ‘posi-
tivists’ deny and why is it [ostensibly] wrong to do so? [Hart, “Positivism” at 49-
50, emphases in original, footnotes omitted.]
Hart pursued a similar approach in his discussion of law and morality in the ninth
chapter of The Concept of Law. After his famous account of the minimum content
of natural law, he indicated how the rest of his discussion would proceed:
[T]he claim that there is some further way in which law must conform to morals
beyond that which we have exhibited as the minimum content of Natural Law, needs
very careful scrutiny. Many such assertions either fail to make clear the sense in which
the connexion between law and morals is alleged to be necessary; or upon exami-
nation they turn out to mean something which is both true and important, but which
it is most confusing to present as a necessary connexion between law and morals.
[Hart, Concept at 198, emphasis in original.]
As Hart underscored, his positivist confrontation with natural-law thinking was

not confined to a single set of issues. He engaged in that confrontation on a variety
of fronts, in order to expose the unsustainability of a medley of purportedly nec-
essary connections between morality and law. Undertaking such a project, he
wielded phrases such as “no necessary connections” and “the separation of law
and morals” as sweeping encapsulations of the diverse points which positivists make
in reply to their opponents. He hardly intended those phrases to be construed as
a preposterous denial of the necessary ties between law and morality that are readily
acknowledged by any jurisprudential positivist.
An alertness to the multifariousness of legal positivists’ rejoinders to their foes
is, then, the key to grasping the role of some of Hart’s sloganeering phrases—
phrases that are innocuous and indeed valuable as roughhewn summations of those
rejoinders. To be sure, near the outset of the ninth chapter of The Concept of Law,
6. See, e.g., H.L.A. Hart, “Lon L. Fuller: The Morality of Law” in Essays in Jurisprudence and
Philosophy (Oxford: Clarendon Press, 1983) 343. Gardner, cleaving to a narrow conception of
legal positivism, appears to endorse a Fullerian position. Gardner, “Myths” 210 at 226. He cites
the tepid approval of Fuller’s stance in Hart’s early work, but he omits to mention that Hart
accepted Fuller’s claims chiefly in order to remark that their truth “is unfortunately compatible
with very great iniquity” in a legal system (Hart, Concept at 202). Nor does Gardner note that
Hart later expressed grave misgivings about the line of thought that had led him in his early work
to an unenthusiastic alignment with Fuller. See Hart, “Introduction” at18.
Hart did submit that the status of moral soundness as a necessary or sufficient con-
dition for legal validity “may still be illuminatingly described as the issue between
Natural Law and Legal Positivism, though each of these titles has come to be used
for a range of different theses about law and morals.” He added that “[h]ere we
shall take Legal Positivism to mean the simple contention that it is in no sense a
necessary truth that laws reproduce or satisfy certain demands of morality, though
in fact they have often done so” (Hart, ”Concept” at 181-82). However, in singling
out this matter as the prime point of controversy between the proponents of natural-
law thought and the proponents of positivism, he was merely highlighting the fact
that traditionally the thinkers in those two camps had indeed crossed swords on
precisely that point. Although classical natural-law theories have been less common
in recent decades than in past centuries, they abide in some quarters to the present
day.7 Earlier instances of such theories, urging that moral soundness is always a
necessary or sufficient condition for the status of norms as legal norms, were cer-
tainly the targets of classical legal positivism in the eighteenth and nineteenth cen-
turies. Hart was warranted in suggesting as much. In so doing, however, he was
scarcely indicating that his other challenges to putatively indissoluble links between
legality and morality lay outside his positivist conception of law. On the contrary,
he launched those challenges—some of which were mounted in The Concept of
Law and some in his later work—chiefly in the course of responding to critics of
legal positivism such as Fuller and Dworkin and John Finnis. As Hart emphasized
in one of his final essays, he as a legal positivist oppugned many “different forms
of the claim that there is a conceptual connection between law and morality which
are compatible with the distinction between law as it is and law as it ought to be”
(Hart, “Introduction” at 8).
Gardner opts for a much more restrictive conception of jurisprudential posi-
tivism. Closely adhering to the ideas and terminology of Raz, he articulates the
following proposition as the sole distinctive tenet of legal positivism: “In any legal
system, whether a given norm is legally valid, and hence whether it forms part of
the law of that system, depends on its sources, not its merits (where its merits, in
the relevant sense, includes the merits of its sources)” (Gardner, “Myths”) at 201).
In Razian garb, this thesis enunciated by Gardner rehearses the traditional positivist
separation between the law as it is and the law as it ought to be. Gardner’s thesis
is certainly a positivist tenet. However, should we go further and agree with Gardner
that it captures the whole of the positivist message? Is he justified in ignoring the
sundry other respects in which a number of positivists such as Hart have endeavored
to rebut assertions of necessary connections between law and morality? And should
we consequently concur with Gardner’s view that the “no necessary connections”
7.See, e.g., Michael Detmold, The Unity of Law and Morality: A Refutation of Legal Positivism
(London: Routledge & Kegan Paul, 1984); Deryck Beyleveld & Roger Brownsword, “The
Practical Difference Between Natural-Law Theory and Legal Positivism” (1985) 5 Oxford J.
Leg. Stud. 1 at 2 n.1; Michael Moore, “Law as a Functional Kind” in Robert George, ed., Natural
Law Theory: Contemporary Essays (Oxford: Clarendon Press, 1992) 188 at 198; Philip Soper,The
Ethics of Deference (Cambridge: Cambridge University Press, 2002) at ch. 4 [hereinafter Soper,
Ethics ]. See also Ronald Dworkin, “A Reply by Ronald Dworkin” in Marshall Cohen, ed.,
Ronald Dworkin and Contemporary Jurisprudence (London: Duckworth, 1984) 247 at 256-60.
6 Kramer
formulation is unacceptably misleading with reference to a school of thought that

denies only one necessary link between the legal domain and the moral domain?
For several reasons, the answer to each of these questions is negative. First, even
though Hart did go beyond his great legal-positivist predecessors in the breadth
of his contestation of ostensibly ineluctable ties between law and morality, Gardner
and other followers of Raz likewise go beyond those predecessors by espousing
the Exclusivist variety of legal positivism in preference to the Inclusivist variety.
(Exclusive Legal Positivists deny, whereas Inclusive Legal Positivists affirm, that
the status of a norm as a law can depend on its moral worthiness.8) As Hart himself
observed long before the Inclusivist/Exclusivist controversy arose, his positivist
forebears favored the Inclusivist position avant la lettre (see Hart, ”Positivism”
at 54-55). Like Hart, and unlike Raz and Gardner, they eschewed the view that it
is necessarily not the case that the status of norms as legal norms ever depends on
moral tests. They instead took the view that it is not necessarily the case that that
status depends on such tests in any particular legal system. Hence, if confining one-
self to the doctrines of eighteenth- and nineteenth-century positivism is essential
for being positivistic, the Razians face at least as much difficulty as the Hartians
in securing that jurisprudential classification.
More important, a principal reason for Hart’s expansion of the range of positivist
attacks on putatively necessary connections between law and morality was his keen
attentiveness to the normative dimension of law, which had been largely obscured
by his positivist predecessors. The greatest advance by Hart over John Austin—his
attunedness to law’s normativity—posed new challenges for him as a legal pos-
itivist, which he met by parrying arguments that equate law’s normativity with moral
normativity. Precisely because Hart highlighted the normative tenor of officials’
pronouncements and interaction, he had to confront and repel the notion that their
activities inevitably amount to an enterprise of moral deliberation.
The fact that Hart engaged in those crucial battles is another reason for hugely
amplifying Gardner’s conception of legal positivism. If we were to uphold
Gardner’s narrow understanding of legal positivism, we would thereby render quite
mysterious a lot of the disputes that have preoccupied legal positivists and their
opponents during the past five decades. Theorists such as Fuller and Dworkin and
Finnis and Stephen Perry and Gerald Postema and Nigel Simmonds and Roger
Shiner and Robert George have all taken themselves in varying ways to be casting
doubt on tenets of legal positivism, while positivists such as Hart have taken them-
selves to be defending positivism against those critics. Since most of the disputation
has not centered on the thesis which Gardner regards as the lone doctrine of
jurisprudential positivism, an acceptance of his view of the matter would force one
8.For an overview of the debate between Exclusive Legal Positivists on the one hand and Inclusive
Legal Positivists and Incorporationists on the other, see Brian Bix, “Patrolling the Boundaries:
Inclusive Legal Positivism and the Nature of Jurisprudential Debate” (1999) 12 Can. J. Law &
Juris. 17. See also Brian Bix, Jurisprudence, 3rd ed. (London: Sweet & Maxwell, 2003) at 47-
50. My own contributions to the debate heretofore are “How Moral Principles can Enter into
the Law” (2000) 6 Legal Theory 83; “Throwing Light on the Role of Moral Principles in the
Law: Further Reflections” (2002) 8 Legal Theory 115; “On Morality as a Necessary or Sufficient
Condition for Legality” (2003) 48 Am. J. Juris. 53. See also IDLP at 114-15, 152-61, 197-99.
to conclude that most of the exponents and detractors of positivism in the past half-
century have been deeply confused. They have been confused not only about spe-
cific points, but also about the general nature of the debates in which they are
participants. Now, although such a conclusion is not incoherent, it is outlandish.
We are well advised to conclude instead that Gardner’s conception of legal pos-
itivism is unacceptably cabined.
At any rate, as Gardner himself quite rightly remarks, we should not quarrel pro-
longedly over a label. “In philosophical argument it matters not which proposition
is given which name; it matters only which is true” (Gardner, “Myths” ) at 199).
Razians are at liberty to stipulate whatever meaning they wish to associate with
the phrase “legal positivism”. On the one hand, their stipulation results in a strange
characterization of the last fifty years of legal-philosophical controversy. On the
other hand, any protracted squabbling here at the level of terminology would be
arid. Let us simply note, then, that some legal philosophers who are positivists by
any reckoning—including Gardner’s reckoning—have in recent decades sought
to expose the contingency of motley links between law and morality that have often
been perceived as necessary. Even if we were to join the Razians in stipulating that
most of the efforts of those philosophers are not integral to any school of thought
to which the phrase “legal positivism” should be applied, we could hardly fail to
notice that those efforts have figured saliently in modern legal philosophy.
Regardless of the label we affix thereto, a multifaceted insistence on the separability
of law and morality is what Hart and other legal positivists have undertaken. It
would not greatly matter if we were to designate most of the elements of that insis-
tence as “legal schmositivism” rather than as “legal positivism,” so long as we rec-
ognize their correctness and importance.
Though the language of “no necessary connections” is unquestionably rough
as a means of summarizing the upshot of the insistence on the separability of law
and morality, its vividness largely offsets its brashness. It is acceptable as a slogan
that can catchily synopsize some major lines of reasoning developed by legal pos-
itivists. Like any slogan, it has to be construed with a modicum of
generosity—rather than in an unresponsively caviling fashion—if its purpose is
to be realized.
II. Positivism Unbound
Unlike Gardner, Jules Coleman does not hesitate at all in ascribing to legal pos-
itivism the claim that there are no necessary connections between law and morality.
“[T]he separability thesis is the claim that there is no necessary connection between
law and morality. That claim does express a tenet of positivism.”9 Coleman rec-
ognizes that the language of such a claim cannot be taken entirely at face value,
and that it is therefore in need of interpretation. In offering an interpretation, how-
ever, he severely limits the scope of the legal-positivist insistence on the separability
of law and morality.
9. Jules L. Coleman, The Practice of Principle: In Defence of a Pragmatic Approach to Legal

Theory (Oxford: Oxford University Press, 2001) at 104 n.4 [hereinafter Coleman, Principle].
8 Kramer
As has already been suggested, that insistence resides in a multifaceted array

of challenges to anti-positivist theories. Unfortunately, Coleman recounts only one
of those challenges as if it were in fact the only one. Moreover, the challenge which
he singles out is less interesting than most of the other positivist ripostes to natural-
law theories, because it is no longer very controversial. Accordingly, we should
not be surprised to find that Coleman believes that the positivist affirmation of the
separability of law and morality is quite jejune. His discounting of that affirmation
as largely trivial is present in his early work,10 but it surfaces again in his important
recent book The Practice of Principle. There he writes as follows:
The separability thesis is the claim that there is no necessary connection between
law and morality. Interpreted as a claim about the relationship between substantive
morality and the content of the criteria of legality, the separability thesis asserts that
it is not necessary that the legality of a standard of conduct depend on its moral value
or merit. Thus, the claim it makes is true just in case a legal system in which the sub-
stantive morality or value of a norm in no way bears on its legality is conceptually
possible. The truth of this claim seems so undeniable as to render it almost entirely
without interest; the claim it makes so weak, no one really contests it. [Coleman,
Practice at 151, footnotes omitted.]
Having evinced such disdain for the so-called separability thesis, Coleman opines
that that thesis is not distinctively positivistic. Although it is undoubtedly a tenet
of legal positivism, it is endorsed as well by just about every legal philosopher. Or
so he contends: “We cannot usefully characterize legal positivism in terms of the
separability thesis, once it is understood properly, because virtually no one—pos-
itivist or not—rejects it” (Coleman, Practice at 152). Coleman concludes that the
hallmark of jurisprudential positivism lies not in an insistence on the separability
of law and morality, but in an insistence on the conventionality of law.11
Coleman espouses a position quite closely similar to that of Gardner, though
he arrives at it by a markedly different route. Whereas Gardner repudiates and
ridicules the “no necessary connections” formulation, Coleman embraces that for-
mulation but then interprets it as substantially overlapping with the one tenet which
Gardner attributes to legal positivism. The only conspicuous difference between
their standpoints is that Coleman cashes out the “no necessary connections” lan-
guage in a manner that bespeaks his allegiance to Inclusive Legal Positivism,
whereas Gardner’s tenet is expressed in Exclusivist terms. In the key respect relevant
10. See Jules L. Coleman, “Negative and Positive Positivism” in Markets, Morals and the Law
(Cambridge: Cambridge University Press, 1988) 3 at 12. See also Jules L. Coleman, “Authority
and Reason” in Robert George, ed., The Autonomy of Law: Essays in Legal Positivism (Oxford:
Clarendon Press, 1996) 287 at 316 n.5.
11. See also Kenneth Einar Himma, “Law’s Claim of Legitimate Authority” in Jules L. Coleman,
ed., Hart’s Postscript (Oxford: Oxford University Press, 2001) 271 at 286 (“[I]t is the emphasis
on law’s conventionality that distinguishes positivism from other conceptual theories of law”);
Kenneth Einar Himma, “Ambiguously Stung: Dworkin’s Semantic Sting Reconfigured” (2002)
8 Legal Theory 145 at 166 (“[T]he view, which represents the theoretical core of legal positivism,
[is] that the grounds of law are exhausted by conventional criteria of legal validity”); Kenneth
Einar Himma, “Substance and Method in Conceptual Jurisprudence and Legal Theory” (2002)
88 Va. L. Rev.1119 at 1152 (“The most fundamental of positivism’s core commitments is the
idea that law is, in essence, a social creation or artifact”).
to the focus of this article, by contrast, Coleman and Gardner are basically at one.
Each of them characterizes legal positivism in a fashion that gravely curtails the
reach of its resistance to the postulation of necessary connections between law and
morality. Each of them submits that that resistance is confined to the matter of legal
validity.
In fairness to Coleman, we should note that at a later juncture in his book he
acknowledges that the debates between positivists and natural-law theorists are con-
siderably richer and more complicated than might be inferred from his discussion
of the so-called separability thesis (Coleman, Practice at 193 n.21). Moreover, he
himself adopts a sophisticated and austerely positivistic stance on several points
of contention, especially in connection with methodological issues. Nevertheless,
these manifestations of his fundamentally positivist outlook make it all the more
puzzling that he so narrowly and denigratingly construes the positivist insistence
on the separability of law and morality when he discusses it directly in the passages
quoted above. His theorizing is to be commended for not fully practising what he
preaches—that is, for departing from his highly restrictive interpretation of the “no
necessary connections” language—but we can wonder why he does not preach what
he adeptly practices.
To see how regrettable are the pronouncements by Coleman that have been
quoted above, we should glance at a number of the diverse forms which the pos-
itivist insistence on the separability of law and morality has taken. For this purpose,
my terse account here will distinguish among different conceptions or dimensions
of morality: morality versus immorality, morality versus prudence, and morality
versus factuality. With reference to morality in opposition to immorality, one of
the most familiar positivist themes is the traditional distinction between the law
as it is and the law as it ought to be. Contrary to what Coleman declares, that dis-
tinction is not wholly uncontroversial. As has already been remarked in this article,
the traditional natural-law attack on that distinction has not vanished without a trace.
Philosophers as eminent as Dworkin and Philip Soper and Michael Moore have
pursued traditional natural-law attacks, in varying ways and to varying degrees.
Still, although the standard positivist riposte to such attacks is not completely uncon-
troversial, it has attained widespread acceptance (or, at least, acquiescence). Not
many theorists continue to assail it. If the “negative” side of legal positivism is to
be piquantly worthy of sustained attention, then, it must extend beyond the matter
of legal validity which Coleman has singled out. It does in fact extend well beyond
that matter.
With the focus still on morality as contrasted with immorality, another area of
disputation between positivists and their opponents is concerned with the general
functions of law. Theorists seeking to establish a necessary connection between
law and morality have maintained that the central functions of law are inherently
commendable and that law is itself therefore inherently commendable. Whether
those functions are deemed to be the securing of basic orderliness and coordination
or the governance of human beings as rational agents or the expression of reciproc-
ity between the rulers and the ruled—or some other desideratum, or some com-
bination of these desiderata—the claim by anti-positivist theorists is that law is
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necessary and/or sufficient for the attainment of morally vital states of affairs. Those
theorists accordingly conclude that law is endowed with an intrinsic moral worth.
In rebuttal, positivists have in some cases challenged the premises of the anti-
positivist arguments, and have in other cases accepted the premises while rejecting
the conclusions drawn from them. The latter strategy is effective, for example, in
reply to theorists who ascribe moral obligatoriness to law on account of its indis-
pensable role in securing public order and social coordination. Positivists can best
respond not by denying that indispensable role, but by assailing the unwarranted
comparison that implicitly underlies the inference about the prima-facie moral obli-
gatoriness of law.12 Such an inference presupposes that the relevant baseline for
comparison with each particular legal regime is a state of lawless anarchy; a com-
parison along those lines will generate an imputation of prima-facie moral obli-
gatoriness to the norms of any such regime, on the ground that those norms are
the sole alternative to chaos. Jurisprudential positivists impeach this implicit com-
parison by contending that instead the appropriate baseline is other realistically
attainable legal regimes, some of which may well be morally superior to the regime
under consideration. With such a move, the positivist can block any general infer-
ence of prima-facie moral obligatoriness. That is, he can refute the view that the
mandates of every legal system are possessed of such obligatoriness simply by dint
of their status as legal mandates.
Yet another focus for the positivist resistance to moralized accounts of law is
the self-presentation of any legal system. Some theorists such as Soper have argued
forcefully that any legal system presents itself as morally legitimate and its mandates
as morally correct. Although these theorists are positing a necessary connection
between law and morality at the level of discourse rather than at the level of under-
lying substance, they do indeed maintain that officials’ legal pronouncements are
inextricably bound up with moral assurances (albeit usually implicit assurances).
Moreover, under Soper’s view, those pronouncements cannot retain minimal cred-
ibility if their assurances of moral legitimacy are wildly outlandish; consequently,
under his view, nothing can count as a genuine legal system unless it surpasses some
modest threshold of moral acceptability (Soper, Ethics at ch. 4). His reflections
on the presuppositions of official legal assertions lead readily into his espousal of
a traditional natural-law position. Thus, for more than one reason, positivists are
well advised to contest Soper’s claims about the self-presentation of every legal
system. I have elsewhere indeed contested those claims (see IDLP at 103-08).
Let us now turn to morality defined in contrast with prudence—a contrast,
roughly stated, between one’s reasons-for-action that are primarily or exclusively
focused on the furtherance of other people’s interests and one’s reasons-for-action
that are primarily or exclusively focused on the furtherance of one’s own interests.
In this connection, perhaps the most commonly bruited notion to which the pos-
itivists have retorted is that the only substantial reasons for officials’ adherence
to rule-of-law principles are moral rather than prudential. Fuller and Finnis and
Simmonds and many other theorists have sought to uphold just such a thesis. In
12. I develop this point at length in IDLP at 204-09, 254-307.
Kramer 21 6/6/4 8:32 PM Page 11
so doing, they have endeavored to establish that the rule of law is inherently moral
in its bearings. I have elsewhere marshaled ripostes to such arguments (IDLP at
chs. 3, 4, 8). By indicating that there are strong prudential reasons for compliance
with rule-of-law requirements on the part of evil officials who are devoid of moral
compunctions, I have aimed to counter the attribution of intrinsic moral significance
to the rule of law.
Another line of argument involving the moral/prudential distinction, to which
legal positivists have responded, is concerned with the reasons-for-action which
officials implicitly or explicitly invoke when they adduce legal norms in explanation
of their decisions. According to this line of argument, propounded most notably
by Raz, officials’ invocations of legal directives presuppose that there are moral
reasons for conformity therewith by the people to whom the directives are applied.
Whether or not the officials believe the implications of what they are saying, their
official references to legal mandates as the bases for their decisions do imply that
the addressees of the decisions have been morally bound to obey those mandates.
In adverting to legal requirements as grounds for demanding that people behave
in specified ways, the officials are adverting to interest-independent reasons-for-
action—that is, reasons-for-action which are moral rather than prudential. So runs
Raz’s argument, in a number of interesting variations. My rejoinders have likewise
been multiple (IDLP at ch. 4), but they have concentrated on the credible possibility
of legal regimes in which no punishment-independent reasons-for-action are pre-
sented or presupposed by officials’ invocations of legal mandates. Challenges to
Raz’s lines of reasoning on this matter are crucial, since his lines of reasoning are
problematic for legal positivism in largely the same ways as Soper’s. (The potential
for the appropriation of Raz’s position by a Soperian natural-law theorist is espe-
cially evident, given that Raz himself has denied that legal officials can be system-
atically deluded or mendacious in the claims which they make concerning the
authoritativeness of their pronouncements.13)
Also eliciting resistance from legal positivists is an argument based on the obser-
vation that law and morality share a deontic terminological structure. Both in moral-
ity and in law, key terms such as “right” and “obligation” and “authority” and
“liberty” are prominently operative. For some theorists, these terminological affini-
ties are indicative of deeper connections between law and morality. Soper advances
just such a view in his efforts to establish that every genuine legal system will have
presented itself as morally legitimate and its mandates as morally correct (See
Soper, Ethics at 70-71). Like Raz, Soper takes for granted that the terminology of
“duty” or “obligation” carries the same meaning in legal contexts as in moral con-
texts. On exactly that point, Hart and I have raised queries—not by maintaining
13. See Joseph Raz, Ethics in the Public Domain (Oxford: Clarendon Press, 1994) 201 [hereinafter
Raz, Ethics]. On the one hand, this denial by Raz has been quite persuasively impugned in
Kenneth Einar Himma, “The Instantiation Thesis and Raz’s Critique of Inclusive Positivism”
(2001) 20 L. & Phil. 61. On the other hand, Himma’s critique is forceful insofar as its target—the
aforementioned denial—is linked to Raz’s particular conception of authoritativeness. The critique
would cease to be compelling if that denial were instead linked to the general notion of author-
itativeness (as opposed to Raz’s particular conception thereof). A Soperian natural-law theorist
could and would opt for the latter way of fleshing out the denial, rather than for the Razian way.
Kramer 21 6/6/4 8:32 PM Page 12
12 Kramer
preposterously that the terminological correspondences are unaccompanied by any

conceptual overlap, but by contending that the conceptual overlap is formal rather
than substantive.14 That overlap is not sufficient to warrant Soper’s conclusion, and
it is not sufficient to warrant our concluding that the reasons-for-action invoked
by officials in their authoritative pronouncements are perforce moral rather than
prudential. It is consistent with the existence and operations of a credible legal sys-
tem in which the only reasons invoked by officials’ statements to citizens are pun-
ishment-centered prudential reasons.
Let us finally turn to the distinction between morality and factuality. Here one
principal focus of disagreements between legal positivists and their foes is the issue
or set of issues singled out by Coleman in his so-called separability thesis. That
is, positivists submit that the endeavors of officials in ascertaining the existence
and contents of legal norms are not necessarily guided by any moral assumptions.
Those endeavors can concentrate strictly on matters of observable fact. In this or
that particular legal system, it can be the case that moral soundness is neither a nec-
essary condition nor a sufficient condition for the status of any norm as a legal norm.
(As we have noted, Exclusive Legal Positivists go further by asserting that moral
soundness cannot ever be such a necessary condition or such a sufficient condition.)
In reply to Dworkin and other theorists who characterize the process of law-ascer-
tainment as ineluctably an enterprise of moral deliberation, the Inclusive Legal
Positivists have held that the role of moral judgments in the law-ascertaining process
is a contingent matter determined by each legal system’s particular Rule of
Recognition. The criteria for law-ascertainment can include, but need not include,
moral standards.
Another area of debate centering on the morality/factuality dichotomy is method-
ological rather than substantive. Many positivists (including me) have insisted not
only on the separability of morality and law, but also on the separability of morality
and legal philosophy. On the one hand, of course, every theory must unfold on the
basis of evaluative judgments in order to be an intelligible account of its explanan-
dum. There is no such thing as value-free theorizing. On the other hand, the values
that inform a philosophical theory of law will not necessarily be moral-political.
They can be strictly theoretical-analytical values such as comprehensiveness,
explanatory power, subtlety, nonredundancy, precision, plausibility, and clarity. In
the construction of a philosophical theory of law, determinations pertaining to the
relative importance of various phenomena are not perforce moral in their tenor.
Instead, a claim about the importance or unimportance of something can derive
from a judgment about the extent to which that thing should be taken into account
by a comprehensive yet parsimonious analysis of sociopolitical life. Contrary to
14. For a discussion of Hart’s views on the matter, see IDLP at 81- 83. For my own views, see ibid.
at 78-112. Soper later suggests that “[s]tatements of legal obligation are at most only statements
about what one ought to do, not statements about the [moral] obligations that subjects have”
(Soper, Ethics at 90). However, is his discussion at that subsequent juncture is puzzling in itself
and is inconsistent with his earlier analyses, which admittedly deny that statements of legal obli-
gations are statements of content-independent moral obligations but which affirm that they are
indeed statements of moral obligations.
Kramer 21 6/6/4 8:32 PM Page 13
what philosophers such as Perry and Postema have proclaimed, then, the inevitably
evaluative enterprise of subjecting law to philosophical investigation is not
inevitably moral-political in its orientation.
So ends my laconic survey of the paramount lines of confrontation between legal
positivists and their opponents. Admittedly, this survey has not in itself presented
any full-scale arguments in support of the positivist insistence on the separability
of law and morality. Rather, it has simply sketched some of the chief points of con-
tention that have led positivists to develop such arguments. Nonetheless, although
this conspectus has merely described some debates instead of entering into them
directly and sustainedly, it should suffice to convey their rich multifariousness. It
should therefore suffice to indicate how much is omitted when Coleman or anyone
else suggests that the positivist insistence on the separability of law and morality
is reducible to a single thesis. To be sure, the restrictiveness of Coleman’s comments
on the so-called separability thesis is not matched by any similar cramping of his
methodological and substantive analyses. Although Coleman does not adopt a pos-
itivist stance in every one of the controversies delineated in my last several para-
graphs, he does adopt such a stance in quite a few of them. All the same, his
dismissive remarks about the so-called separability thesis are damaging to legal
positivism. They tend to obscure some of positivism’s best insights (which Coleman
himself elsewhere helps to elaborate), and they render opaque most of the recent
conflicts between positivists and their adversaries. When the positivist affirmation
of the separability of law and morality is grasped in its expansive
variegatedness—rather than only in its most pallid formulation—its centrality and
profundity become clear. To slight that affirmation is to darken counsel.
III. Raz and Separability
At a number of junctures during the past three decades, Raz has written about the
positivist insistence on the separability of law and morality. His attitude has almost
always been wary and has sometimes been downright hostile. To be sure, Raz in
Practical Reason and Norms has critically assessed some natural-law theories in
ways not wholly dissimilar from the approach favored by this article (and by my
other writings on legal positivism).15 In much of his work, however, he has expressed
skepticism about the separability of law and morality—at least insofar as their sep-
arability is understood as broadly as it has been here.
Like Coleman, Raz suggests that the multifaceted positivist insistence on the
separability of law and morality can be reduced to a single thesis (the “separability
thesis”). In two important respects, however, Raz disagrees with Coleman. First,
he singles out a different and more capacious tenet as the separability thesis. Second,
he rejects that tenet as unsustainable. Let us here very briefly consider each of these
points.
15. See Joseph Raz, Practical Reason and Norms, rev. ed. (Princeton, NJ: Princeton University Press,
1990) at 162-69 [hereinafter Raz, Reason].
Kramer 21 6/6/4 8:32 PM Page 14
14 Kramer
As we have seen, Coleman construes the separability thesis as a claim that the
criteria for legal validity in any particular legal system need not include moral tests.
Such tests may be present in this or that particular system, but their presence is
contingent rather than a necessary feature of everything that counts as a legal
regime. To assert the contingency of the role of moral tests as criteria for legal valid-
ity is to affirm the separability of law and morality, according to Coleman. Raz
takes an opposing view: “Coleman’s rendering of his own separability thesis is mis-
taken. A necessary connection between law and morality does not require that truth
as a moral principle be a condition of legal validity. All it requires is that the social
features which identify something as a legal system entail that it possess[es] moral
value” (Raz, Ethics at 210). Although the wording in this quotation is not entirely
unequivocal, Raz does not appear to be repudiating Coleman’s version of the sep-
arability thesis outright. He appears to accept that the truth of Coleman’s tenet—or
the truth of an Exclusivist variant of that tenet—is a necessary condition for the
truth of the separability thesis. What he then maintains, however, is that the truth
of Coleman’s tenet is not sufficient for the truth of the separability thesis. That latter
thesis can be false even if Coleman’s tenet (or an Exclusivist variant of that tenet)
is true. In other words, Coleman’s error resides in his having construed the sep-
arability thesis too narrowly. Raz puts forward a more expansive construal, whereby
that thesis will be false not only if Coleman’s tenet is false but also if any of law’s
defining features entail its possession of some degree of moral worthiness. Raz’s
position in the quotation above, then, is much the same as his position in an early
essay:
The claim that what is law and what is not is purely a matter of social fact still leaves
it an open question whether or not those social facts by which we identify the law
or determine its existence do or do not endow it with moral merit. If they do, it has
of necessity a moral character. But even if they do not, it is still an open question
whether, given human nature and the general conditions of human existence, every
legal system which is in fact the effective law of some society does of necessity con-
form to some moral values and ideals.16
Having opted for a broader specification of the separability thesis, Raz proceeds
to announce that the thesis is false: “The separability thesis is … implausible …
.[I]t is very likely that there is some necessary connection between law and morality,
that every legal system in force has some moral merit or does some moral good
even if it is also the cause of a great deal of moral evil.” He adds: “It is relevant
to remember that all major traditions in Western political thought, including both
the Aristotelian and the Hobbesian traditions, believed in such a connection” (Raz,
Ethics at 211). He articulates a similar view in a quite recent essay, when he denies
“that a legal system may exist which implements no moral values.”17
Raz is on solid ground, of course, in censuring Coleman for conceiving of the
separability thesis too restrictively. Raz, however, does not go nearly far enough.
16. Joseph Raz, The Authority of Law (Oxford: Clarendon Press, 1979) at 38-39.
17. Joseph Raz, “On the Nature of Law” (1996) 82 Archiv für Rechts- und Sozialphilosophie 1 at
16 n.17.
Kramer 21 6/6/4 8:32 PM Page 15
As should be evident from the preceding section of this article with its terse synopsis
of some of the conflicts between positivists and their opponents, Raz enlarges the
scope of the separability thesis far too modestly. Indeed, the chief problem lies in
the notion that legal positivism’s insistence on the separability of law and morality
can aptly be recounted as a single thesis (albeit a rather complex thesis). Like
Coleman, Raz implicitly relies only on the morality/immorality and morality/fac-
tuality dichotomies in cashing out the separability thesis, and he consequently
obfuscates the fact that many of the liveliest debates over the separability of law
and morality have in recent decades been centered primarily on the morality/pru-
dence dichotomy. (Admittedly, Raz has been on the anti-positivist side in some
of those debates.) Moreover, even in connection with the morality/immorality and
morality/factuality contrasts, the controversies over the separability of law and
morality have been more wide-ranging than Raz suggests. Though he wisely moves
beyond the confines imposed by Coleman, he still conveys the false impression
that the matter of separability is reducible to a very small set of issues that can be
captured adequately in a univocal thesis.
More objectionable than the pinchedness of Raz’s version of the separability
thesis is his renunciation of that thesis. On the one hand, to be sure, his position
in this respect is quite mild. While forswearing “the view that the facts which deter-
mine the existence and content of law do not guarantee it any moral value,” Raz
adds: “What does appear true is that the necessary connection between law and
morality which is likely to be established by arguments … is a weak one. It is insuf-
ficient e.g. to establish a prima-facie obligation to obey the law” (Raz, Ethics at
211 n.12). On the other hand, even such an attenuated rejection of the separability
thesis is too strong. For one thing, Raz does not do justice to the comparative char-
acter of any genuine moral assessment—a comparative character to which I have
fleetingly adverted in this article’s short discussion of the obligation to obey the
law. Moreover, his remarks do not suitably take account of the fact that some
morally good results can be devoid of moral value. Nor do those remarks adequately
acknowledge that the role of law as a necessary condition for certain moral desider-
ata is insufficient to vest law with any inherent moral worth. Let us ponder each
of these shortcomings.
Raz himself is far from unaware of the comparative character of any moral
appraisal. In Practical Reason and Norms, for example, he includes some pithy
observations on the obligation to obey the law that are roughly akin to my own
(cf. Raz, Reason at 167). Nevertheless, his comments in the quotations above go
too far toward contending that every legal system is endowed with some moral merit
by sheer dint of its having secured some morally worthy aspect of the state of affairs
over which it holds sway. The example which he uses to illustrate his point about
law’s possession of moral value is revealing: “For example, assume that the main-
tenance of orderly social relations is itself morally valuable. Assume further that
a legal system can be the law in force in a society only if it succeeds in maintaining
orderly social relations. A necessary connection between law and morality would
then have been established ….” (Raz, Ethics at 210-11). To detect the unsoundness
Kramer 21 6/6/4 8:32 PM Page 16
16 Kramer
of Raz’s conclusion, we should glance at a variant of a scenario which I have else-

where probed at some length (IDLP at 206-09).
Suppose that some gangsters operate a community-wide protection racket that
has the effect of warding off other criminals who would engage in even worse per-
secution of the hapless people in the community. The protection racket is extor-
tionate and ruthlessly enforced, and is run solely on the basis of the gangsters’
selfish interests (which encompass the exclusion of their even more nefarious rivals).
In these circumstances, the sustainment of the protection racket produces the
morally beneficial effect of keeping the especially brutal thugs out of the commu-
nity. Nevertheless, we should not jump to the conclusion that the racketeers’ oppres-
sive activities are endowed with some moral value. Everything hinges on the
pertinent baseline for comparison. If the only such baseline is a situation in which
the even worse criminals carry out murderous rampages and a host of other wrongs,
then the protection racket does possess some moral merit as the lone alternative
to that hideous situation. However, it may well be that a preferable state of affairs—a
state of affairs marked neither by the misdeeds of the racketeers nor by the more
heinous misdeeds of their rivals—is also available as an alternative. If such a state
of affairs is attainable without significant moral costs (beyond the costs that would
arise directly from the racketeers’ own resistance to any attempts to alleviate their
exploitative practices), it is the germane baseline for comparison when we gauge
the moral worthiness of the protection racket. In that case, we should conclude that
the racket is possessed of no positive moral value at all. Its only morally beneficial
effects are also realizable through a plainly preferable state of affairs that is a rea-
sonably attainable alternative to it.
Insofar as morally worthy legal systems are reasonably attainable as preferable
alternatives to an evil legal regime that is currently operative, the moral status of
that evil regime is similar to the status of the protection racket just described. In
such circumstances, that is, the evil legal system is devoid of moral value. Its per-
formance of the morally salutary function of maintaining orderly social relations
is not sufficient to endow it with any such value, since the relevant baseline for
comparison in our moral appraisals of the wicked legal regime is also characterized
by the fulfillment of that function. Only if the germane baseline were a situation
of anarchic tumult or other serious upheaval, would the orderliness-promoting and
coordination-enabling function of the repressive legal system be per se sufficient
to invest that system with some moral commendability. However, because the ger-
mane baseline is instead (ex hypothesi) a decent legal regime which not only avoids
the iniquities of the repressive legal system but which also discharges its orderliness-
promoting and coordination-facilitating function, that function cannot appositely
be singled out as something which counts in favor of the repressive system.
Of course, if the circumstances were different, our conclusion on this point would
likewise have to be different. If for example the only realistically attainable alter-
native to the evil legal system were an even direr system operated by even more
brutal officials, the orderliness-securing and coordination-facilitating function of
the existing system would indeed count in its favor as something that confers moral
value upon it. Much the same conclusion would follow if the only realistically
Kramer 21 6/6/4 8:32 PM Page 17
attainable alternative were a situation of chaotic turbulence. In fact, the same con-
clusion will sometimes follow when a morally superior legal system is attainable.
Although the alternative system may be morally more commendable in most
respects, its capacity to fulfill the orderliness-promoting function might be less than
that of the existing regime—in which case the effective discharge of that function
is something which counts in favor of the existing regime, notwithstanding that
it is outweighed by the regime’s vices.
In other words, the moral status of an evil legal system’s operations will vary
to some degree across contexts. In a context in which the pertinent baseline for
comparison is an even worse situation, or in which it is a better situation where
basic public order would nonetheless not be as effectively secured, the maintenance
of orderly social relations by the evil legal system does indeed endow it with some
moral worthiness. Contrariwise, in a context in which the pertinent baseline for
comparison is a better situation where the securing of basic public order would
be at least as effective, the maintenance of orderly social relations by the evil legal
system does not endow it with any moral worthiness. In such a context, that morally
commendable function does not count in favor of the evil regime at all—since the
function would be at least as effectively carried out by a morally superior regime
that stands as a reasonably attainable alternative.
In sum, the upshot of these remarks is that no inherent moral worth attaches to
law simply by virtue of the fact that (in Raz’s words, quoted above) “a legal system
can be the law in force in a society only if it succeeds in maintaining orderly social
relations.” Whether the orderliness-providing function of a legal system invests
it with any moral value is a question to which the answer depends on the baseline
for the comparison that underpins any apt assessment of the system’s merits. An
appropriate identification of that baseline in turn depends on the moral entitlements
of people and on the achievability of alternatives. If a morally superior system of
law is accessible as an alternative without the infliction of significant harm on peo-
ple’s legitimate interests (beyond any harm that would directly ensue from the cur-
rent regime’s efforts to thwart improvements), then it stands as the baseline against
which the moral worth of the existing legal system is to be evaluated. If no superior
system of law is accessible, then some inferior system or a state of anarchy is the
operative baseline. That is, the selection of a baseline, which will heavily affect
one’s conclusions about the moral value of the prevailing legal regime, will hinge
on context-specific factors rather than on anything intrinsic to the nature of law.
Though the worthiness attaching to law by dint of its orderliness-providing and
coordination-enabling function can correctly be designated as a connection between
law and morality, the connection is contingent rather than necessary—even though
that morally valuable function is characteristic of everything that is classifiable as
a legal system. (Note that, in order to address Raz’s argument, my comments here
have concentrated on the level of whole legal systems rather than on the level of
individual legal norms within those systems. We typically proceed at the latter level
when we are enquiring into the existence of an obligation to obey the law, but we
fittingly proceed at the former level when we are enquiring into the moral fiber
of each legal system as an overall array of institutions.)
Kramer 21 6/6/4 8:32 PM Page 18
18 Kramer
Furthermore, even if we leave aside the point just made concerning the com-
parative orientation of our moral appraisals of legal regimes, we should resist Raz’s
line of argument. Let us grant his assumption that every legal system produces some
morally valuable results, and let us additionally assume that no superior alternative
way of producing those results is realistically attainable. Still, his rejection of the
separability thesis does not follow. Morally valuable results can themselves be
morally unacceptable if they are achieved through unacceptable means. In such
a case, the results do not warrant any ascription of some positive moral value to
the institution or process that has brought them about.
Suppose, for example, that an oppressive government in an overpopulated coun-
try resorts to genocide in its treatment of some downtrodden minority. As a con-
sequence of the slaughter of millions of people, the problem of overcrowdedness
in the country is significantly alleviated. Pressures on public services, and on the
use of land and other natural resources, have substantially abated. The danger of
the onset of famines has likewise diminished considerably. All of these effects of
the policy of genocide are morally valuable developments by any ordinary reck-
oning. Nevertheless, those effects do not warrant our ascribing any moral worthiness
to the policy that has engendered them or to the government. Because they have
come about through an utterly unacceptable means, they do not count in favor of
the government and its measures at all. It is not the case that some good results
and some horrific results have simply occurred alongside each other, and that they
can be balanced against each other accordingly. Rather, the good results have ensued
only because of the horrific results. Given the background circumstances, the latter
have constituted the former. Consequently, there is no room for the good results
to have an independent moral status that can militate in favor of a policy which
is horrendous in other respects. Rather, the respects in which the genocidal policy
is horrendous are constitutive of the respects in which it is beneficial.18
By the same token, we have to enquire into the means by which an oppressive
legal-governmental regime discharges the morally valuable function of maintaining
orderly social relations. If that function is fulfilled through odious measures, then
it does not contribute favorably to the moral status of the regime by which it is
effected. Suppose for example that the norms and the punitive mechanisms of the
regime impose stiflingly harsh penalties on people for numerous innocuous acts
and omissions. Because of the draconian punishments, and because of the public
displays of the ruthlessness of the regime’s officials in suppressing and deterring
obstreperousness, virtually everybody is highly submissive and peaceable. Now,
when we look at the prevalence of pacific dispositions among citizens in abstraction
from the origins thereof, we shall no doubt conclude that it is a morally valuable
development. However, once we take account of the etiology of those dispositions,
we can see that the cultivation of them by the iron-fisted legal system does not war-
rant our ascribing any moral worthiness to that system. We can recognize that the
18. I have elsewhere described the sort of constitutive connection that is operative between the heinous
effects and the beneficial effects. See Matthew Kramer, The Quality of Freedom (Oxford: Oxford
University Press, 2003) at 280: “S1 amounts to S2 if S2 is entailed by the combination of S1
and some aspect(s) of the prevailing circumstances other than any causal laws.”
Kramer 21 6/6/4 8:32 PM Page 19
peaceableness of the citizens is an index of their downtroddenness, rather than

something to be admired. Orderliness is generally commendable, but the orderliness
of subjugation is not. That is, because the orderliness has been elicited by iniquitous
means—in other words, because the fact that people have been cowed into sheep-
like submissiveness is constitutive of the fact that their relations are peaceable—the
smoothness of the interaction among the citizens is thoroughly tainted.
This example can be brought even closer to the scenario of genocide. Suppose
that the docility of the citizens is due not principally to the severe punitiveness of
the legal regime that regulates their behavior, but mainly instead to the overwhelm-
ingly manipulative inveiglements of the institutions and devices which that regime
uses unremittingly in order to propagate its sinister ideology. Or, more fancifully,
suppose that the citizens have each been rendered submissive by a lobotomy or
some other type of brain surgery. Or, again more fancifully, perhaps their unresistant
willingness to comply with the harshly onerous legal requirements of their society
is due to the continual administration of a potent mind-altering drug or the continual
transmission of mind-controlling electronic impulses. In any of these circumstances,
the morally valuable function of sustaining orderly social relations is carried out
through the very shaping of the psyches of citizens in nefarious ways. Just as a pol-
icy of genocide comes to grips with the size of a population in a profoundly ille-
gitimate fashion, a policy of effectively taking over people’s minds in order to secure
their placidity is a wholly unacceptable regimentation of their thoughts and actions.
That regimentation is constitutive of the orderliness of their dealings with one
another—which is why that orderliness, the orderliness of puppets, does not count
morally in favor of the regime. Once again we behold a situation in which the ben-
eficial aspects and the deplorable aspects of a legal system’s governance over its
citizens are not simply co-occurrent. Instead, the latter aspects constitute the former.
Whenever the peaceableness of social relations is so constituted, it does not con-
tribute positively at all to the moral value of the legal regime that sustains those
relations.
Let us close by briefly pondering Raz’s passing reference to the Aristotelian
and Hobbesian traditions in Western political thought. Raz is unquestionably correct
in declaring that past and present political thinkers have believed that law as such
does inherently partake of some degree of moral worthiness. In most if not all cases,
however, they have believed as much because they have further believed that the
rule of law is necessary for the realization of extremely important moral desiderata
such as the preservation of public order and the coordination of social life and the
promotion of individual freedom. This latter belief is entirely accurate, as I have
emphasized elsewhere (IDLP at 209). Nonetheless, it does not support the thesis
that law partakes of some inherent moral worthiness. As I have argued at length
in In Defense of Legal Positivism, the rule of law is indispensable for the sustain-
ment of wickedly exploitative and repressive governmental institutions on a large
scale over a long period. Ergo, if we were to ascribe inherent moral worthiness to
law because of its status as a necessary condition for the attainment of key moral
desiderata, we should likewise ascribe inherent moral iniquity to law because of
its status as a necessary condition for the successful long-term pursuit of heinous
Kramer 21 6/6/4 8:32 PM Page 20
20 Kramer
purposes by evil regimes that rule over sizeable societies. Now, manifestly, we
should not engage in either of those inconsistent ascriptions. We should instead
conclude that the moral bearings of law are not inherent but are determined by its
contingent substance and by the uses to which it is put in various settings. With
such a conclusion, of course, we reaffirm legal positivism’s insistence on the sep-
arability of law and morality.
IV. A Short Recapitulation
Whereas some of my earlier writings have sought to rebut challenges posed by the-
orists who set themselves against legal positivism, the present article has balked
at the unduly narrow conception of legal positivism to which several major positivist
theorists have disconcertingly subscribed. On some occasions those theorists have
suggested that certain important elements of the positivist insistence on the sep-
arability of law and morality in fact lie outside the scope of jurisprudential pos-
itivism, and on other occasions they have squarely impugned certain elements of
that insistence. Whatever may be their reasons for discounting central tenets of legal
positivism that have been elaborated in tussles with natural-law theorists of sundry
stripes, they have indeed de-emphasized or abjured a number of those tenets. To
be sure, an unswerving allegiance to those tenets is not a necessary condition for
the applicability of the “positivist” label. For example, Raz is surely a legal positivist
even though he has eschewed any such allegiance. Nevertheless, the vibrant heart
of legal positivism (at least during the past five decades) is a far-reaching insistence
on the separability of law and morality, an insistence from which these positivists
have distanced themselves.
On the one hand, any minimally sensible person should accept that there are
countless similarities between law and morality. The vast majority of those sim-
ilarities are utterly trivial, but a small proportion of them (such as the normativity
of legal propositions and moral propositions) are significant. On the other hand,
when we distinguish among morality-contrasted-with-immorality and morality-
contrasted-with-prudence and morality-contrasted-with-factuality, we can discern
that nearly all of the important and ostensibly necessary connections between law
and morality—in any of the three specified senses of “morality”—are contingent
at most. During the past five decades, natural-law theorists of differing persuasions
have proclaimed quite a few of those contingent connections to be ineluctable
bonds. Legal positivism has developed fruitfully in response to those proclamations,
as its proponents have endeavored to expose the untenability of the natural-law argu-
ments. Their endeavors have doubtless expanded the ambit of legal positivism
beyond its historical contours, but the expansion has greatly redounded to the benefit
of positivism.
Indeed, an insistence on the separability of law and morality is pertinent not only
in reaction to natural-law theories, but also in application to the most prominent
intrapositivist disputes: the debates between Inclusivists and Exclusivists, which
have been touched upon in my discussion of Gardner. After all, the Inclusivist
position in those debates upholds the separability of law and morality. Inclusivists
Kramer 21 6/6/4 8:32 PM Page 21
contend that moral principles can operate, but need not operate, as criteria for legal
validity in any particular society. Exclusive Legal Positivists, by contrast, maintain
that law-ascertaining enquiries and moral enquiries are strictly separate rather than
merely separable. In this key respect, then, the focus of the current article tallies
nicely with the focus of the writings in which I have espoused Inclusive Legal
Positivism. Neither the position staked out in those writings nor my defense here
of a wide-ranging insistence on the separability of law and morality entails the other,
but they do fit together well. Legal positivists’ altercations with natural-law thinkers
can shed light on the battles that take place among positivists themselves.

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On the Separability of Law and Morality

On the Separability of Law and Morality 3

characteristics of legal norms and legal systems constitute an inner morality of

As Hart underscored, his positivist confrontation with natural-law thinking was

On the Separability of Law and Morality 5

formulation is unacceptably misleading with reference to a school of thought that

On the Separability of Law and Morality 7

II. Positivism Unbound

9. Jules L. Coleman, The Practice of Principle: In Defence of a Pragmatic Approach to Legal

As has already been suggested, that insistence resides in a multifaceted array

On the Separability of Law and Morality 9

12. I develop this point at length in IDLP at 204-09, 254-307.

On the Separability of Law and Morality 11

preposterously that the terminological correspondences are unaccompanied by any

On the Separability of Law and Morality 13

III. Raz and Separability

On the Separability of Law and Morality 15

of Raz’s conclusion, we should glance at a variant of a scenario which I have else-

On the Separability of Law and Morality 17

On the Separability of Law and Morality 19

peaceableness of the citizens is an index of their downtroddenness, rather than

IV. A Short Recapitulation

On the Separability of Law and Morality 21

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