Positivism, Legal Validity, and the Separation of Law and Morals


  • Earlier versions of this essay were presented at the workshop on “Post-Positivism and the Law”, Edinburgh Law School (May 2011), where I especially benefited from comments by Claudio Michelon, Gianluigi Palombella, Paolo Sandro, and Neil Walker; and at a Jurisprudence seminar at the European University Institute, Florence (December 2012), where I greatly profited from comments from the audience, and from perceptive observations by Dennis Patterson and Giovanni Sartor. I am also indebted to Bruno Celano, Giulio Itzcovich, Matthew Kramer, Dimitrios Kyritsis, Ralf Poscher, Aldo Schiavello, and an anonymous referee, for extremely helpful written comments.


The essay discusses the import of the separability thesis both for legal positivism and for contemporary legal practice. First, the place of the separability thesis in legal positivism will be explored, distinguishing between “standard positivism” and “post-Hartian positivism.” Then I will consider various kinds of relations between law and morality that are worthy of jurisprudential interest, and explore, from a positivist point of view, what kind of relations between law and morality must be rejected, what kind of such relations should be taken into account, and what kind of such relations are indeed of no import at all. The upshot of this analysis consists in highlighting the distinction between two different dimensions of legal validity (formal validity and material validity respectively), and in pointing out that the positivist separability thesis can apply to formal validity only. On the other hand, when the ascertainment of material validity is at stake, some form of moral reasoning may well be involved (here and now, it is necessarily involved). The essay concludes with some brief remarks on the persisting importance of the positivist jurisprudential project.