Vanderbilt Law Review


Kenneth Henley

First Page



English legal positivism began with the clarity of Jeremy Bentham and John Austin, but their clarity sometimes was achieved by sacrificing conceptual subtlety. In 1961 H.L.A. Hart published The Concept of Law" and renewed the positivist tradition with a subtlety that did not sacrifice clarity. It is appropriate, therefore,that Neil MacCormick's study of Hart should begin the monograph series Jurists: Profiles in Legal Theory.'The conceptual separation between law and morals serves as the primary tenet of legal positivism. Although "positive morality"(the moral beliefs prevalent in a particular society) influences the development of law, the law-once formed-exists as a distinct social fact. The English founders of positivism were utilitarians and thus committed to reforming both positive law and positive morality in light of the principle of utility. But the question of what the law should be, even within the framework of a critical morality like utilitarianism, must be distinguished from the question of what the law is. Thus, law conceptually is distinct both from the positive morality out of which law grows and from the reflective, critical morality that partly determines one's reasoned evaluation of law.Hart never departs from this crucial positivist view that a legal system constitutes a complex social fact that is distinct from the positive morality of the society and from an ideal of law informed by critical moral thought.

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