Positivism and the Separation of Law and Morals

In this article I shall discuss and attempt to defend a view which Mr. Justice Holmes, among others, held and for which he and they have been much criticized. But I wish first to say why I think that Holmes, whatever the vicissitudes of his American reputation may be, will always remain for Englishmen a heroic figure in jurisprudence. This will be so because he magically combined two qualities: one of them is imaginative power, which English legal thinking has often lacked; the other is clarity, which English legal thinking usually possesses. The English lawyer who turns to read Holmes is made to see that what he had taken to be settled and stable is really always on the move. To make this discovery with Holmes is to be with a guide whose words may leave you unconvinced, sometimes even repelled, but never mystified. Like our Own Austin, with whom Holmes shared many ideals and thoughts, Holmes was sometimes clearly wrong; but again like Austin, when this was so he was always wrong clearly. This surely is a sovereign virtue in jurisprudence. Clarity I know is said not to be enough; this may be true, but there are still questions in jurisprudence were the issues are confused because they are discussed in a style which Holmes would have spurned for its obscurity. Perhaps this is inevitable: jurisprudence trembles so uncertainly on the margin of many subjects that there will always be need for someone, in Bentham's phrase, "to pluck the mask of Mystery" from its face! This is true, to a preeminent degree, of the subject of this article. Contemporary voices tell us we must recognize something obscured by the legal "positivists" whose day is now over: that there is a "point of intersection between law and morals,"2 or that what is and what ought to be are somehow indissolubly fused or inseparable,3 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 "positivists" deny and why is it wrong to do so?