H.L.A. Hart

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H.L.A. Hart

• Positivism and the Separation of Law and Morals

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III.

• If words (language) is to be a method of
  communication, then words must have a core of
  settled meaning, but there will still be a
  penumbra of debatable cases in which words are
  neither obviously applicable nor obviously ruled
  out.
• The classifier (judge) must make a decision which
  is not dictated to him, for the facts and
  phenomena to which we fit our words and apply our
  rules cannot speak up for themselves as to
  whether they fit the words of the rule.
• Instead of (the art of?) applying legal rules,
  someone must take the responsibility of deciding
  that words do or do not cover some case at hand
  with all the practical consequences involved in
  that decision.
• If a penumbra of uncertainty must surround all
  legal rules, then their application to specific
  cases in the penumbral area cannot be a matter of
  logical deduction. Man cannot live by deduction
  alone.

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• What is it, then, which makes such decisions
  correct, or at least better than an alternative
  decision?
• The problem with criticizing the logic of the
  formalist is not the use of logic. Logic only
  tells you hypothetically that if you give a
  certain term a certain interpretation, then a
  certain conclusion follows. Logic is silent on
  how to classify particulars and that is the
  heart of making judicial decisions.
• Hart takes issue with the utilitarians views
  denouncing formalism, insisting on the
  distinction between law and morals, and the is
  and the ought.
• A decision reached blindly in the formalist or
  literalist manner is indistinquishable from a
  decision reached intelligently by reference to
  some conception of what ought to be.
• The distinction should be between what is, and
  what from many different points of view ought to
  be.

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• Some, but not all, standards are moral. The real
  distinction is how one chooses from available
  possible solutions to find the ought.
• The claim that a particular application of a rule
  within the penumbral area is wise, is an
  invitation to revise our conception of what the
  legal rule is by incorporating into the penumbra
  the various aims and policies supporting that
  incorporation as a part of the law.
• Although such an invitation cannot be refuted, it
  can be refused.
• Laws are incurably incomplete, and we must decide
  the penumbral cases rationally by reference to
  social aims. General propositions do not decide
  concrete cases.
• Some legal questions fall within the core, others
  must be decided within the penumbra which is
  the preoccupation of the legal tradition and
  often the source of confusion.