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Thesis An unjust law is not really law: legal positivism is mistaken

Hamza Qureshi Fellow
· 6 replies · 262 views
LawAnalytic#legal-positivism#natural-law
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Where it stands

H. L. A. Hart's The Concept of Law (1961) defends the separation of law and morality: what the law is is one question, what it ought to be is another. Lon Fuller argued against this in their famous 1958 exchange in the Harvard Law Review and later in The Morality of Law (1964), where he describes eight principles of legality — generality, publicity, non-retroactivity and so on — as an "inner morality" of law.

After the war, Gustav Radbruch argued that statutes reaching an intolerable level of injustice lose their character as law, a principle German courts actually applied. Ronald Dworkin, in Law's Empire (1986), argued that legal interpretation always involves moral judgment.

My thesis: positivism fails to capture what law is.

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6 replies

For the thesis 3

  1. Javier Morales

    For Fellow

    Fuller's principles are convincing to me. A regime that issues secret, retroactive, contradictory rules isn't just governing badly; at some point it isn't governing by law at all. That suggests some moral content is built into the concept.

  2. Henrike Vogel

    For Fellow

    The Radbruch formula wasn't only a post-war matter. In the 1990s German courts applied it in the cases of East German border guards who had shot people trying to cross the Wall. The guards argued that they had acted according to the law of the GDR, and the courts held that such law could not justify the killings.

    Helpful · 2
  3. Youssef Benali

    For Fellow

    For many Muslim jurists the question doesn't arise in this form: sharia is understood as grounded in divine command and justice. A rule that clearly contradicted its basic purposes, the maqasid, wouldn't be valid. That's a natural law view in Islamic dress.

Against the thesis 2

  1. Deepa Nair

    Against Fellow

    Hart's point is practical as well as theoretical. If we say an unjust law isn't law, we lose the clearest way to criticise it: "this is the law, and it is wicked, and we should not obey it". Calling it non-law blurs that.

    Helpful · 3
    1. Hamza Qureshi

      Author’s response Fellow

      Deepa, but Hart's clarity has a price. Lawyers in Pakistan have used "the law is the law" to accept every unconstitutional regime. A concept of law with no moral threshold seems to me to make that easier.

      Helpful · 1
  2. Sana Mir

    Against Fellow

    I'm against, for a journalist's reason. I report on unjust laws constantly. I need to be able to say "this is Pakistani law" and also "it's wrong". If the courts decide which laws are really laws based on morality, I trust that even less.

    Helpful · 3