Teori Pemisahan Hukum Dan Moral Austin

Vanderbilt Law Review
Volume 14 Article 6
Issue 1 Issue 1 - December 1960
12-1960
Austin's Theory of the Separation of Law and Morals

Samuel E. Stumpf
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Samuel E. Stumpf, Austin's Theory of the Separation of Law and Morals, 14 Vanderbilt Law Review 117
(1960)
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AUSTIN'S THEORY OF THE SEPARATION OF LAW AND
MORALS
SAMUEL ENOCH STUMPF*
The lingering influence of the natural law theory in England

brought forth a powerful new philosophy of law. The chief features
of this new theory were developed by Hobbes and Bentham and found
their most compelling formulation in the works of the "analytical"
jurist, John Austin. What concerned these men most was how to
deal with the existence of morally bad laws. Sir William Blackstone
had said in his Commentaries that the laws of God are superior in
obligation to all other laws; that no human laws should be allowed
to contradict them; that human laws are of no validity if they con-
tradict God's laws and that all valid laws derive their force from the
Divine original.1 When Austin confronted these ideas, he immediately
focused upon the central issue in legal theory, for he remarked that
if these ideas of Blackstone's have any meaning at all it must be this,
"that no human law which conflicts with the Divine law is obligatory
or binding; in other words, that no human law which conflicts with
the Divine law is a law ... .2 The problem, as Austin saw it, was
to determine how the authority of a legal order is achieved. Where,
in other words, do laws derive their character as law?
What impressed Austin was the fact that there are many rules for
human behaviour which are morally desirable but which are not
laws. Similarly, there are many laws which violate moral standards
but are nevertheless laws. Unlike the natural law school, for which
he had only contempt, Austin distinguished two aspects of the inquiry
into the nature of law. "The existence of law," he said, "is one thing;
its merit or demerit is another. Whether it be or be not is one in-
quiry; whether it be or be not conformable to an assumed standard,
is a different inquiry. A law, which actually exists, is a law, though
we happen to dislike it, or though it vary from the text, by which we
regulate our approbation and disapprobation." 3 To separate the in-
quiry about what laws exist from the inquiry about what laws are
good or bad was Austin's great achievement. But by this separation
he also brought about the theoretical separation of law and morals.
Whereas Blackstone argued that a rule derived its character as law
from its conformity with God's law, Austin developed the point that
*Professor and Chairman, Dept. of Philosophy, Vanderbilt University.
1. 1 BLACKSTONE, COMMENTARIES *42.
2. AusTIN, PROVINCE OF JURISPRUDENCE DETERMINED 185 (Library of Ideas
ed. 1954) [hereinafter cited as PROVINCE].
3. PROVINCE 179.
VANDERBILT LAW REVIEW [VOL. 14
a rule's conformity with morals was irrelevant in determining

whether that rule is law. The "bad" law is as much a law as the
"good" law, wherefore goodness or badness is not the decisive ele-
ment in the authority of a law or of the legal order. Austin thought
that by this distinction between what law is and what it ought to
be he could clarify the meaning of law which had been obscured by
the advocates of natural law who, like Blackstone, had injected the
notion of morality as a necessary element in the definition of law.
This distinction between law and morals has since Austin's time
had a powerful influence throughout the juristic world, and John
Chipman Gray has described Austin's great contribution by writing
that:
The great gain in its fundamental conceptions which Jurisprudence
made during the last century was the recognition of the truth that the
Law of a State . .. is not an ideal, but something which actually exists.
It is not that which is in accordance with religion, or nature, or
morality; it is not that which ought to be, but that which is. To fix this
definitely in the Jurisprudence of the Common Law, is the feat that
Austin accomplished.4
But equally since Austin's time men have been uneasy about this
separation of law and morals. There is no doubt that certain legal
rules have no moral connotation, as for example, the rule that auto-
mobiles should be driven on the right or the left. There are rules, too,
that are not at all moral in the sense of being intrinsically moral.
That a will should have two or three witnesses can hardly be con-
sidered the requirements of God, nature or morality. Similarly,
there are rules of law which raise for man a hypothetical question
instead of placing him under the pressure of a categorical imperative.
Thus, the law of contracts holds that if you want a binding contract,
you must fulfill certain requirements, or if you want to give some-
one the legal power to act on your behalf, as for example when a
broker buys and sells securities for you, these legal arrangements
have specific requirements and the law makes specific imperatives;
but these imperatives are hypothetical, for a person may very well
choose not to enter a contract or may decide not to engage a broker.
In this significant sense it is clear that the law governs a man's be-
haviour only if he chooses to enter these particular spheres of be-
haviour. There is nothing about these modes of behaviour which
any system or morals would include among those things which all
men, in order to be men, must adhere to. It is analogous to the case
of baseball; if one decides to play this game, then he immediately
submits himself to the rules of the game, but there is nothing in the
moral code of mankind that requires that all people should play
4. GRAY, THE NATuRE AND SOURCES OF THE LAW 94 (2d ed. 1927).
1960] AUSTIN
baseball. Because the law contains so many rules, such as traffic laws,
which regulate a person's conduct at points where morality is un-
concerned, and because other laws raise only hypothetical obligations,
pending a person's choice to come under the law's control, positivists
have held that law is quite different from the rules of morality.
But not all the rules of law are of this hypothetical nature. The
most characteristic thing about laws is that they positively command
certain kinds of behaviour, and in these cases the content of the law
is frequently identical with a moral rule. The prohibition against
the use of child labor is surely an expression of a moral sentiment.
Even if the reasons which are used by the moralist for prohibiting
child labor are different from the reasons men use for passing a law
against that practice, in both cases the reasoning is based upon moral
convictions. If, that is, the abuse of children is denounced by the
moralist because it represents a tragic exploitation of a defenseless
minor and a ruthless denial of the rights of the child to a normal
childhood, on the one hand, while the law is justified by the legislator,
on the other hand, on the pragmatic grounds that the prohibition
will produce healthier adults and a stronger society, these are,
nevertheless, both moral arguments. The fact that the law in its
very inception becomes freighted with moral elements is what causes
skepticism in many quarters about the positivistic doctrine of the
separation of morals from the law.
Austin did not deny that moral influences were at work in the
creation of law, but he allowed nowhere in his theory any place for
this moral element when defining the nature of law. In order to main-
tain the sharp distinction between law and morality, he defined law
in its most abstract and severe terms as a command of the sovereign.
It was Austin's reduction of law to a command which has ever since
his time aggravated the debate over the nature of law. This is a
difficult debate because whichever way we choose to think of the
relation between law and morals we come upon undesirable con-
clusions. If we identify law with morality, then whatever is com-
manded by the state would be obeyed not only because it is
commanded but also because the command prescribes morally de-
sirable conduct. If we make such a close identification between law
and morals, however, we run into the danger of losing the basis for
a moral criticism of laws since there would be a confusion between
one's moral and legal obligations. An iniquitous law could not on
principle be criticized because it would already be identified with
morality. The alternative approach is to say that law and morals
represent two separate kinds of rules for behaviour and that they
have no necessary relation to each other. This is a convincing view,
particularly when it is used by those who argue that only by making
this distinction can we preserve the possibility of the moral criticism

of law. But this view leaves unsolved the problem of the obligatori-
ness in law; the positivist view implies that the only element at work
in determining our duty to the law is the fact of the state's command
and the power the state is able to mobilize to support its command.
It really argues for a complete separation of law and morals and
the reduction of law to the force of the state. According to this view,
the concept of law is formulated without any reference to the law's
moral aspects.
The bald identification of law and force in the positivist theory calls
for a careful analysis of the argument by which this identification is
reached. Conversely, if positivism argues for the separation of law
and morals, it is necessary to examine the argument by which this
separation is urged. The reconception of the meaning of law which
the positivist view leads to is so radical that it is necessary not only
to try to come to terms with this point of view but even before that
to determine whether in fact it is possible, for the positivists them-
selves, to achieve what they announce they intend to do. Has Austin
really developed a consistent argument in which he demonstrates the
separation of law and morals, and is Austin guilty of all that his
critics say about his treatment of law and morals? The full anatomy
of Austin's thought can be most conveniently unravelled by con-
sidering how he treated the problems of the "source," the "validity"
and the "ends" of law.
POSITIWSM AND THE SOURCE OF LAW

The problem of the source of law dominates the positivist theory
because its definition of law is essentially a doctrine of the source
of law. When Austin defines law as the command of the sovereign,
he is saying that only those rules are laws which emanate from the
sovereign. Thus the notion of law is identified with the notion of
command. In order to differentiate various possible kinds of com-
mands, Austin specifies that only those commands are law which
have their source in the will of the sovereign. Moreover, law is
defined as those commands of the sovereign which are based upon
a sanction, where the sanction is defined as the threat of evil which
the sovereign can mete out upon those who disobey the command.
Practically the whole of the Austinian legal theory is found in these
three concepts of sovereign, command and sanction, and these terms
are defined in terms of each other; they are variations of each other.
The picture one gets from this abstract and severe description of
law is one that no positivist really intends to convey, but which
Austin's theory certainly suggests. It appears that the sovereign is a
1960] AUSTIN
morally indifferent entity, barking out commands after the manner

of an animal trainer, directing these commands at persons who are
trained to respond the way an animal responds to his master's voice,
and who respond only because, like the animals, they know that
certain kinds of behaviour bring about painful consequences. This is
the interpretation of legal positivism which horrifies the casual ob-
server for it seems to provide the foundation for the most arbitrary
kind of ruler. As it stands, the conception of law based upon sover-
eign, command and sanction has indeed achieved the desired
theoretical result, namely, the separation of law and morals: there
is the sovereign, who is the undisputed ruler; there is his command
which orders man's conduct; and there is the threat of punishment
or some form of pain if a person does not obey. Now it is only if
this severe statement is left unembellished that there is any success-
ful separation of law and morals. When Austin does elaborate his
notion of the source of law, the relation of law and morals turns out
to be a rather close one.
There are various ways in which the notion of the source of law
can be considered, but Austin takes the view that there is only one
source of law: the command of the sovereign. No rule has the
quality of law except the rule commanded by the sovereign. No law
can emanate from any source other than the sovereign, for by defini-
tion only the sovereign's commands are law, and the rules he com-
mands are laws only because he commands them and for no other
reason. Here again, the breach between law and morals appears to
be absolute, for positivism allows no other consideration to enter
the definition of law than the fact of command. While Austin can
differentiate, as we shall see, between what others confuse as other
sources of law besides the sovereign, he maintains that law does not
exist in any fashion as law prior to the sovereign's command; if
there is law anywhere, it is the product of that command.
If all that positivism wanted to achieve in this account of the source
of law was to specify how the word law is to be used there would be
no cause for concern. In that case we would simply agree that we
would reserve the word law to apply to the commands of the sovereign.
There would be no difficulty in assigning the source of law, for ob-
viously law would emanate only from the sovereign if we have
already agreed that only such commands are law. But men raise the
question about the source of law precisely because this arbitrary
restriction of the use of the term law is not at all satisfactory when
we are dealing with human beings. For the law, understood even as
simply a command of the state, also implies that the contents of
these commands are binding upon those to whom they are addressed.
Laws prescribe how men shall act. The notion of law is incompre-
hensible when law is viewed solely as a command; it is always a

command directing human behaviour. A theory of law which does
not suggest that legal rules concern the behaviour of men is certainly
an irrelevant and useless if not dangerous theory. It is precisely
because the commands of the law involve the life of man in its
most sensitive and intensely human aspect, that men continue to
raise the question about the source of law. Even though positivism
obviously admits that the sovereign's commands are directed to hu-
man beings and that these commands direct human conduct, it leaves
the phenomenon of command bare, for it requires of the sovereign
nothing else than to be sovereign, to be in the habit of being obeyed,
in short, of being the supreme power in society. By making the
sovereign's command the sole source of law, positivism is led to its
distinctive conclusion which is that whatever the sovereign com-
mands is law, and, more important, that the sovereign is bound by
no moral considerations in the process of commanding. Moreover, a
subject is bound to obey the sovereign's command for no other
reason than that he is commanded.
But the fact that men's lives are ordered by the law has led them
to look for the source of the law elsewhere besides only in the
commands of the state. Even though men are willing to admit that
the word law should be limited to what the sovereign commands,
they are not willing to admit out of hand that the sovereign can
command whatever he wants. The British Parliament is said to be
absolutely sovereign, that it can do anything "except change a man
into a woman." But this is certainly an oversimplification of the
nature of sovereignty in England as well as other places. Men have
been willing to reserve the word law for the commands of the state,
but they have never agreed that the commands of the state can be
arbitrary. That is, men have never agreed that there should be a
separation of law and morals. They have agreed to call bad laws law
only because they know that in the process of lawmaking bad laws
as well as good laws will be made, i.e., that there will be mistakes.
Though men have agreed to obey the laws the sovereign issues, they
have invariably set down rules by which the sovereign will fashion
or make his commands, his laws. Thus, in the very process of making
laws, the sovereign is already bound by the conditions by which he
became the sovereign. Men do not agree to form a society for their
own destruction but for their preservation, and if we brought in
no other consideration than survival, for the time being, we would be
compelled to hold that the moral value of preservation of life is
already a basic precondition of sovereign power, that in the be-
ginning of lawmaking the relation of law and morals is present. To
prove the close relation between law and morals it is not necessary to
1960] AUSTIN
prove that every single law is a moral law or in conformity with

morality. What relates the phenomenon of law to morality is the
law's concern over human behaviour; in the process of creating or
fashioning a legal rule, the lawmaker must constantly ask himself
what kind of behaviour is appropriate for man in society; that is,
he asks how men ought to behave, and the legal rule is frequently
made in the light of this "ought." For the sake of conceptual purity,
we can divide the full phenomenon of law into two parts; one part
has to do with the gestation of the contents of the rule-this process
includes the vital moral, religious and general value-convictions a
society or legislator wants to express through the medium of law;
the second part is the mechanical process of formal promulgation by
which these ideas are invested with the form of a statute. If one is
to describe the full phenomenon of law, he must include both proces-
ses. Austin, however, attempted to formulate the concept of law
solely in terms of the second aspect of the law-making process. That
a meaningful concept of law cannot be achieved this way, that is,
by separating technical promulgation from the concerns over the
moral direction of human behaviour, was later evident even to
Austin. The very concept of law is meaningless until the nature
of man is brought into consideration.
The Concept of Law and the Common Nature of Man

The most important link between law and morals in Austin's sys-
tem is found in his conception of man's nature. While Austin spoke
of natural law as the "veriest foolishness," he nevertheless reiterated
one of the most important tenets of that school, namely, that the
concept of law rests upon what is "necessary" and what is "bottomed
in the common nature of man."5 With this concern over the nature of
man, Austin identifies his system with the tradition of natural law
in which the very starting point is the nature and condition of man.
What Austin wishes to derive from his conception of man is the
obvious point that one can make no sense out of the conception of
law until he focuses upon certain features of human nature. Hobbes
had painted a gloomy picture of the anarchy of the state of nature
and saw in man's selfishness and predatory bent the need for law.
Theologians had accounted for the law in the fact of human sin. For
Hobbes as well as for the theologians, the breakdown of order through
the willfulness of men, and the capacity for man to understand
anarchy as less desirable than some form of order, are the pre-
conditions for the emergence of law. What Austin says is that the
very idea of law is incomprehensible until it is seen in connection
5. PRoVINcE 373.
VANDERBILT LAW REVIEW [VOL, 14
with the problem of human evil and is viewed as the correction of

evil. He writes:
But the notion or idea of evil or imperfection is involved in the
connected notions of law, duty, and sanction. For, seeing that every law
imposes a restraint every law is an evil of itself: and, unless it be the
work of malignity, or proceed from consummate folly, it also supposes
an evil which it is designed to prevent or remedy. Law, like medicine,
is a preventive or remedy of evil: and, if the world were free from
evil, the notion and name would be unknown. 6
It becomes at once clear that Austin is far from considering law
in the arbitrary terms which his technical formulation would sug-
gest. While his theory of command sounds as though law is some-
thing arbitrary, he said this would be the case only if it were "the
work of malignity" or proceeded "from consummate folly." Law is at
the very first seen as a corrective of evil and as such proceeds upon
some conception of what is the opposite of evil, namely, good. And
this "good" is to be seen as "bottomed in the common nature of
man." Without this conception of good and evil the notion of law
would be "unknown." There can be no more forceful identification
of the ideas of law and morality than this, although Austin does pro-
vide even more illuminating illustrations of this connection.
Bentham, to whom Austin is most deeply indebted for his positiv-
istic views of law, had the same contempt for natural law as Austin.7
But in a revealing passage he, too, made a very close identification
between the concerns of law and morals when he said that the func-
tion of law "is to increase the efficacy of private ethics, by giving
strength and direction to the influence of moral sanction."8 This
passage comes from that part of Bentham's analysis of law where
his specific concern was "to ascertain what sort of thing a law is...
what it must contain in order to be complete."9 While Bentham too
would identify law as a command, he would not consider this the
complete idea of law, for lurking in the back of his mind was a con-
stant concern over the moral content of the law, where good is de-
termined by the good of the community. To be sure, Bentham said
that a law is whatever the community decides to punish as an
offense, but he immediately adds that: "The good of the community
cannot require... [the punishment of] any act.., which is not...
in some way or other detrimental. . . . [and] an act cannot be
detrimental to a state, but by being detrimental to some one or more
of the individuals that compose it." 10 Thus, unless an act is detri-
6. PRovIncE 85. (Emphasis added.)
7. BENTHAIM, LIMrITS OF JURISPRUDENCE DENED 84 passim (Everett ed. 1945).
8. 1 WORKS OF JEREMY BENTHAM 146 (Bowring ed. 1843).
9. Id. at 142.
10. Id. at 97.
19601 AUSTIN
mental there should be no law against it, "for in the case of such
an act, all punishment is groundless."1 It appears then that the
notion of law is not only that law originates in the command of the
sovereign, but that such commands must threaten punishment, and
therefore should be commands only in those cases where there are
grounds, that is, moral grounds, for such a command. What de-
velops from this analysis is that though there seems to be a sharp
distinction between what the law "is" and what it "ought to be,"
between what laws sovereigns actually make and laws they ought
to make, Bentham urges that the very completeness of the idea of
law requires the recognition that the commands of law emerge in the
context of the moral concern of the legislator and society.
In this same vein, Austin identified the areas of law and morals
through a very careful analysis of the kind of acts the law should
consider as offenses. He said, "every act . . .that ought to be an
object of positive law, ought to be an object of the positive morality.
*
. .,"12 Even more interesting is Austin's notion that every act that
ought to be an object of morality "is an object of the law of God."'13
The object of the positive law is therefore the same as the object of
the law of God, the only difference being that the law of God is
concerned with a wider area of offenses than the positive law. At this
point Austin speaks not so much of the intersection of law and morals
but what is even more intimate, their concentric relation: "[T]he
circle embraced by the law of God... is larger than the circle which
can be embraced to advantage by positive law. Inasmuch as the
two circles have one and the same centre, the whole of the region
comprised by the latter is also comprised by the former. But the
whole of the region comprised by the former is not comprised by the
latter."'14 When Austin speaks of law as a command, he is assuming
that in its formation the sovereign has in mind the moral nature of
man, so that the very "is" of law contains some feature of moral
"ought" the moment the law is born. It is not entirely correct to say
that the concern over the "ought" is the concern only of the legislator
and not the legal scientist. Austin explicitly says that "it was not a
5
deviation from my subject to introduce the principle of utility.'
This supreme principle of ethics, both in Bentham and in Austin,
has an intrinsic relation to the very notion of what law is, for as
Austin points out, "I ... should often be unable to explain distinctly
and precisely the scope and purport of a law, without having brought
11. Ibid.
12. PRoviNcE n.163.
13. Ibid.
14. Ibid.
15. PRovINcE 59.
the principle of utility directly before you."'1 6 The idea of command,
apart from some conception of how someone ought to behave is so
abstract that it can hardly have any meaning by itself. Only as the
act of articulating directions to action does command take on mean-
ing, and such directions carry moral implications. For the moment
it makes little difference whether the particular moral content of the
law is acceptable or not, because what needs only to be said here
is that both Bentham and Austin see an intimate relation between
the ideas of morals and of law because they see the intimate relation
between the moral nature of man and the moral concern of law.
The notion of a command cannot be understood apart from one
other way in which law is "bottomed in the nature of man." For
Austin emphasizes that law "in its literal meaning" is a rule laid
down "for the guidance of an intelligent being by an intelligent be-
ing having power over him."' 7 It must be observed that the political
superior from whom a positive law flows is one who not only
possesses power but one who has intelligence, and the person whose
conduct is to be ordered is not simply an entity capable of receiving
signals in the way animals do but has the capacity of intelligence.
By intelligence Austin means the faculty of reason. Thus, the idea
of law is intimately connected with the faculty of reason, both in its
creation and in the object to which it is directed. Law can exist only
where there are intelligences, for as Austin says, "where intelligence
is not, or where it is too bounded to take the name of reason, and,
therefore, is too bounded to conceive the purpose of a law, there is
not the will which law can work on, or which duty can incite or
restrain."'18 This suggests that one of the "necessary" aspects of law
is its rational character and its inevitable connection with purposes,
and especially human purposes. It cannot be assumed that when
men deal with laws their reasoning is different from the way they
reason over moral duties. Nor do we need to think that when their
lives are ordered about by the laws men cease to reflect over the
moral defensibility of the law. The law does not in every case have
to be identical with or in conformity with the rules of morality in
order to show the relation between the two. Austin showed that the
law flows, in an important sense, from human reason which is also
the source of morality. It is not simply that law and morality have
the same source that is important here but, again, that they flow
from the same kind of reasoning, frequently over the identical kinds
of behaviour. Thus, while Austin wished always to say that a law
is a law whether it is good or bad, he certainly did not contemplate
16. Ibid.
17. Id. at 10.
18. Id. at 12.
1960] AUSTIN
that law had no moral characteristics. And what we have tried to,
show is not simply that here and there one can find a moral element
in the law but that the law is "bottomed" in the nature of man and
is the extension of his moral nature, therefore reflecting both man's
strengths and weaknesses.
The Moral Basis of Sovereignty

When we analyze Austin's notion of sovereignty, again we find a
far more intimate relation between law and morals than positivists
usually admit. The stark theory that there are no legal limitations
to the power of the sovereign was stated in its sharpest modern form
by Hobbes. His notion that "there could be no unjust law" was the
logical outcome of his account of the source of law. When he wrote
that "laws are the rules of just, and unjust; nothing being reputed:
unjust, that is not contrary to some law,"'19 he insisted that it was
impossible for any statute to be unjust. The theoretical basis of
this notion is that for Hobbes there are no moral principles which
precede the law; the creation of law and of morality occur simultan-
eously. There is no perspective from which to criticize law, for there
is no law of nature behind the positive law, only the law of preserva-
tion. There is in Hobbes' theory, moreover, a pessimistic view of man
which is far less creative than the theological doctrine of sin, for it
considers man so irretrievably selfish and predatory that he must be
restrained by the absolute authority of the state. Hobbes' account of
the lawlessness of the state of nature is the decisive element of his:
account of the source of law, for by lawlessness in this state he means:
not only the absence of positive law but the absence of man's aware-
ness of an order of right. Thus, as Hobbes traces back the source of
law to its origin, he arbitrarily stops with the fiction of the social
contract as the starting point of all law.
Although Austin has written one of the most brilliant refutations
of the social contract theory,20 he nevertheless follows Hobbes by
reiterating in his own argument that "the power of a sovereign is
incapable of legal limitation." 21 He comes to this conclusion because
of the way he has defined both positive law and the nature of the
sovereign. Having said that the sovereign is the individual or group
of individuals who are political superiors who are habitually obeyed
by political inferiors, and having said that laws emanate only from
a sovereign, he thought it followed that the sovereign cannot bind
himself by his own laws. Because Austin thought chiefly in terms
of English monarchy and aristocracy, he made the mistake of thinking:
19. HOBBEs, LEVIATHAN 173 (Blackwell ed. 1946).
20. PROVINCE 306 passim.
21. Id. at 245.
-that in all governments the sovereigns are not bound by the laws
they make. In America the rulers are bound by the laws they make
and even more significant is the fact that the lawmakers are also
bound by the fundamental law of the Constitution. Austin empha-
sized that there is no legal limitation to the sovereign's power. This
is simply a play on words because it means that there are no laws
when the sovereign begins being a sovereign. First there is a sov-
ereign and then his commands become the law, so it may be theo-
xetically correct that there are no legal limitations to the sovereign.
But again, in constitutional government the constitution is the basic
law and it limits the powers of the sovereign, so that in this case not
even the verbal symmetry in Austin's argument will hold.
Austin's theory of the sovereign is not as bald as his original
statement leads one to suppose. We get the picture of the sovereign
without any legal limitation issuing commands and threatening evil
pains and punishments. In the best criticism of Austin's theory, Sir
Henry Maine writes that Austin's "theory of Sovereignty neglects the
mode in which the result has been arrived at ....And thus it is that,
so far as the restrictions contained in . . . [his] definition of Sov-
.ereignty . . . [is] concerned, the Queen and Parliament of our own
country might direct all weakly children to be put to death .... ,22
Surely this is the first impression one gets from the short version of
Austin's theory. But upon a closer look at his theory we find that
the acts of the sovereign, though capable of no legal limitation,23 are
certainly hemmed in by moral limitations.24 The way in which these
moral limitations affect the sovereign comes out in Austin's careful
analysis of the meaning of the phrase "the source of law."
There is a "loose" way and a "strict" way of defining the word
source, and Austin's view of the sovereign's legal status depends upon
this distinction. For the loose meaning of the source of law is that
whatever influences the shaping of a law is a source of law. But in
the strict sense there is only one source, namely the command of the
sovereign. Again, in the loose sense one can refer to the remote
causes of the law whereas in the strict sense we must look only to the
proximate source of law. Behind the distinction between the loose
and strict interpretation of the source of law lies the even more im-
portant distinction between the "cause" and the "source" of law.
Austin's contention is that there has been a confusion between those
influences which have "caused" a law to be formed and the actual
"source" from which the law, as law, springs. This confusion, he feels,
22. MAwE, EARLY HISTORY OF INSTITUTIONs 360 (American ed. Henry Holt
&Co. 1875).
23. PROVIc 230-31, 245, 255-56.
24. Id. at 258-59.
19601 AUSTIN
is what complicates, or distorts, all discussions about the nature of

the sovereign. For if law has its source in nature, or God, or custom,
then it could rightly be said that the sovereign is under legal limita-
tions, since there are laws "prior" to or "above" the sovereign.
These rules which emanate from nature or custom are for Austin not
laws in the strict sense of the term, they are only positive rules of
morality. "God or nature," writes Austin, "is not a source of law
in the strict sense. ... God or nature is ranked among the sources
of law, through the same confusion of the source of law with its
remoter causes .... But . . . [law] is law, strictly so called, by the
establishment it receives from the human sovereign. . . . God or
nature is the remote cause of the law, but its source and proximate
25
cause is the earthly sovereign, by whom it is positum or established.
To say that the proximate source of law is the sovereign does not
in any sense mean that on that account there is a separation of law
and morals. It only means that the process by which moral convic-
tions become transformed into law has been clearly exposed and
analyzed. But, for the present, Austin's most important point is
that the very way in which the sovereign is constituted already means
that the sovereign works under moral limitations, or as Austin says
in a significant passage:
The law of England, for example, cannot be understood without a
knowledge of the constitution of Parliament, and of the various rules
by which that sovereign body conducts the business of legislation:
although it is manifest that much of the law which determines the con-
stitution of Parliament, and many of the rules which Parliament follows
in legislating, are either mere law imposed by the opinion of the com-
munity, or merely ethical maxims which the body spontaneously ob-
serves.2
While it is true therefore that the sovereign cannot be limited by
"strictly legal" boundaries, his authority is nevertheless constituted
upon a moral foundation. To say that the sovereign has no legal
limitations is therefore a misleading notion, insinuating that
the sovereign could do anything it wished. But even Austin saw the
absurdity of that conclusion and felt it quite necessary to indicate
25. 2 AUSTIN, LECTURES ON JURISPRUDENCE 548 (Murray, 5th ed. 1885)
[hereinafter cited as LECTURES]. "Taking the term 'source' in a loose sig-
nification, customs may be styled sources of laws. For the existence of a
custom, with the general opinion in favour of it, is the cause or occasion, or
is one of the causes or occassions, of that legal rule which is moulded or
fashioned upon it. But taking the term 'source' in the same loose significa-
tion, the causes of the custom from which the law emerges are also a source
or fountain of the law itself: and, generally, any cause of any law must be
ranked with its sources or fountains.... Hence certain writers have ranked
experience and reason, together with external circumstances wherein man-
kind are placed, amongst the sources of the laws whereby mankind are
governed."
26. 2 id. at 746.
in detail how the Parliament works. He was concerned with the

workings of the sovereign chiefly because it was in this activity that
he centered all his theory about the law. The most decisive feature
about the sovereign, for Austin himself, was not the fact that it was
curbed by no legal limitations, but that in fact it was curbed by
"'moral" laws. This led Austin to say that without understanding
these moral limitations upon the sovereign, one could not really
understand what positive law is. The moral limitations upon the
sovereign had the effect, too, of joining the moral and legal elements
in the positive law, which means that instead of achieving a separa-
tion of law and morals, which positivism is reputed to do, Austin's
analysis reveals just the opposite, namely, the conjunction of law
and morals. Referring to these moral laws in the structure of con-
stitutional law-making, he regrets that he has found them there be-
cause they upset the logical rigor of his system, but with admirable
candor he writes, "though, in logical rigour, much of the so-called
law which relates to the Sovereign, ought to be banished from the
Corpus Juris,it ought to be inserted in the Corpus Juris for reasons
of convenience which are paramount to logical symmetry. For though,
in strictness, it belongs to positive morality or to ethics, a knowledge
of it is absolutely necessary in order to a knowledge of the positive
law with which the Corpus Juris is properly concerned." 27 Austin
next indicates the indissoluable relation between law and morals when
he says that "the case which I am now considering is one of the nu-
merous cases wherein law and morality are so intimately and indis-
solubly allied, that, though they are of distinct natures and ought to
be carefully distinguished it is necessary nevertheless to consider
them in conjunction." Thus he reiterates here in detail what he
had expressed earlier when he spoke of "the compound of positive
morality and positive law, which determines the character of the
person, or... persons, in whom, for the time being, the sovereignty
shall reside .... ,,29 The sovereign must not be looked upon, even in
theory, as independent of the moral law, for the sovereign's activities
transpire under the constant influence of the moral law wherefore
there is a constant relation between law and morals.
There may be serious questions over whether anything can be
gained by demonstrating that there is such an intimate connection
between law and morals. Bentham wondered just what Blackstone
had achieved by arguing that the natural law places limits upon what
the positive law can control.30 Bentham's objection was that if it is
27. 2 id. at 745-46.

28. Ibid.
29. PaovINcE 259.
30. 1 BLACKSTONE, COMMENTARES *38 passim.
19601 AUSTIN
held that there is a close connection between law and morals, the
effect will be for people to identify their moral obligation with their
legal duties.31 And to say that the law already contains its moral
justification is to stifle any serious criticism of the law. But every-
thing depends upon which end of the argument we are considering.
When law is considered at the point of its creation, the very idea of
law requires that it bear some relation to moral standards. But after
the law has been made, it is still necessary to consider whether it
is morally justifiable. The pressure of moral criticism of law exists
at both points. To argue for the relation of law and morals does
not mean that morality must be or will be reduced to the commands
of the law. But even such an effect is not totally undesirable, for,it
is one of the functions of law to urge those moral actions which men
in their selfishness will not voluntarily undertake, or as Bentham put
it, "to increase the efficacy of private ethics." What is gained by this
analysis is a demonstration that the sovereign cannot separate the
act of making law from a consideration of the requirements of
morality,
The Problem of the Validity of Law

The positivist has a simple formula for legal validity, for he argues
that whatever the sovereign commands is valid law. We have already
seen in our analysis of Austin's theory of sovereignty that this simple
formula is far more sophisticated than it appears at first. This is true
also in the positivism of Hans Kelsen, for what at first appears to be
a self-sufficient account of legal validity turns out to be a natural
law-like grounding of the legal order. The key to Kelsen's system
is the word "normativism." 32 To this word he gives a novel meaning
which is not to be confused with moral norms. A norm is "an im-
personal and anonymous 'command'." All laws are norms. If what
we call a law is not a norm then it is not a law. Whence does this
norm come? Every norm derives from another norm. Kelsen is not
concerned with the problem of the source of law which leads other
jurists to discuss the role of custom, morality, nature and God as
sources of law. For him there can be no entity different from or
existing independently from the law as the source of law. "[T]he
Isource' of law," he says, "is always itself law."34 All laws are re-
lated to each other and are created in relation to each other. Here
Kelsen is reiterating Austin's theory for he, too, is saying that there
31. BENTHAm, THE PRINCIPLES OF MORALS AND LEGISLATION, II (Blackwell ed.
1948).
32. See Kelsen, The Pure Theory of Law, 50 L. Q. REv. 474 (1934).
33. KELsEN, GENERAL THEORY OF LAW AND STATE (20th Century Legal
Philosophy Series 1945) [hereinafter cited as GENERAL THEORY].
34. Id. at 132.
is only one true source of law in the juristic sense, namely, the sov-
ereign, or a superior norm. The legal system is a hierarchy of norms
whose regress can be traced back finally to the "basic norm," beyond
which there is no other norm or law. The "basic norm" is ultimately
the source of all laws; it is the starting point of the norm-creating
process. The basic norm is a hypothetical assumption lying behind
the first legislator, the assumption that he is legislating validly; the
basic norm is the norm which authorizes the historically first legisla-
tor. The function of the basic norm is to confer law-creating power
upon the first legislator and on all the other acts (of legislation)
based upon the first act. In Kelsen's theory, everything depends upon
this last statement; for every norm, i.e., every law, is valid only inso-
far as it is based upon the basic norm, or, subsequently, upon some
other norm which issued from the basic norm.
Kelsen likens the basic norm to the transcendental logical prin-
ciples of cognition which are not empirical laws but merely the
conditions of all experience. So, too, the basic norm is itself no posi-
tive rule because it has been made, but is simply presupposed as the
condition of all positive legal norms. The final presupposition is not,
for example, the first constitution, but the validity of that constitu-
tion. The final postulate is that at a given time in history there
existed a condition which validated the first constitution-that con-
dition, not itself an act or statute, is the basic norm. Thus from the
basic norm there emerge types of law, for example, the civil and
criminal law. The criminal law in turn produces a specific statute;
and from that statute specific decisions are arrived at by the court
affecting individuals. The sequence here is from norm to norm, from
law to law. For the constitution, criminal law, statute and decision
are each norms and constitute the hierarchy of norms. These positive
laws become valid only on one assumption, namely, that there is a
basic norm which establishes the supreme law-creating authority. But
this does not mean that the basic norm itself can in any way be
proved to be valid. "The validity of this basic norm is unproved and
must remain so within the sphere of positive law itself." 35 More-
over, this does not mean that the system of laws is a closed logical
system,36 for the laws in this hierarchy are not deduced logically
but are in conformity with the higher norms. Kelsen simply makes
the point that just as one cannot know the empirical world from the
transcendental logical principles but merely by means of them, so
positive law cannot be derived in its content from the basic norm
but can merely be understood by it. Fundamentally, this means
that norms do not in any way correspond to Reality but derive their
35. Id. at 395.
36. Cf. STONE, THE PROVINCE AND FUNCTION OF LAW 141 (1950).
19601 AUSTIN
ultimate validity simply from proper enactment. Kelsen puts this

central point in these words:
The norms of positive law are valid, that is, they ought to be obeyed,
not because they are, like the laws of natural law, derived from nature,
God, or reason, from a principle of the absolutely good, right or just,
from an absolutely supreme value or fundamental norm which itself
is clothed with the claim of absolute validity, but merely because they
have been created in a certain way or made by a certain person. This
implies no categorical statement as to the value of the method of the
law-making or of the person functioning as the positive legal authority;
this value is a hypothetical assumption.37
Also, this basic norm "is presupposed to be valid because without

this presupposition no human act could be interpreted as a legal, es-
pecially as a norm-creating, act."38
This intricate argument for a "science of law" which attempts to
separate law and morals turns out in the end to be neither science
nor successful in separating law and morals. If anything, Kelsen's
system greatly clarifies the relation between law and morals, for he
makes it unmistakably clear just where the moral element enters the
system of law. The two avenues through which morals pass into
the law are through the basic norm and at the occasion on which
each new norm is created. It is quite true, as Kelsen argues, that
law proliferates within the structural framework of civil government,
that laws proceed from laws. But he has made it clear that norms
do not in fact, nor do they need to, proceed logically from one norm
to the other. This means that at most the hierarchy of norms provides
the mechanism or procedure by which the laws are created. But at
each point in the hierarchy, the laws become imbued with morality
as they are fashioned into statutes. "It is possible for the legal order,"
says Kelsen, "by obliging the law-creating organs to respect or apply
certain moral norms or political- principles or opinions of experts, to
transform these norms, principles, or opinions, into legal norms and
thus into true sources of law. '39 The validity of a law rests only upon
its proper enactment; in this view positivism seems to say nothing
about the law's content. But it is precisely because the basic norm
does have the effect of directing the sovereign in its act of law-
making to consider the requirements of morality that in the end
the positivistic system takes on some of the characteristics of natural
law theory. Austin modified his theory when he elaborated the
context within which the sovereign formulated his command, a
context which included particularly the dimension of moral im-
37. GENERAL THEORY 394.

38. Id. at 116.
39. Id. at 132.
peratives. Similarly, Kelsen's system takes on a different mood when

he distinguishes between the validity of an ordinary legal norm
and the validity of the basic norm. The validity of an ordinary norm
rests solely on proper enactment and not upon the validity of the
content of the norm. But with the basic .norm the situation is just
the opposite, for when he speaks of the validity of the basic norm
he says it "is not valid because it has been created in a certain way,
but its validity is assumed by virtue of its content. It is valid, then,
like a norm of natural law, apart from its merely hypothetical validi-
ty. The idea of a pure positive law, like that of natural'law, has its
limitation."40 Neither Austin nor Kelsen succeed in producing a
coherent account of the separation of law and morals for they both
inject a moral element just where their system would have led us to
believe that validity is totally independent of morality. One cannot
therefore take Kelsen literally when he writes that "law has no
41
moral connotations whatsoever."
Morality and the JudicialProcess

The impossibility of separating law and morals is frequently argued
by referring to the judicial process.42 The argument here is that
the judges frequently make the law and when they do this they
invariably inject their own or the society's nioral standards into their
decisions and thereby bring about a union between law and morals.
We need to consider how the positivist meets this argument. Austin
43
was aware that much law comes from the activity of the courts.
Not only was he aware of the practice of judicial legislation, he even
urged judges to engage in it. 44 But what Austin and Kelsen do re-
ject in this argument is that judicial activity represents a novel or
unique source of law. For them, the fact that the courts engage in
moral reasoning in arriving at their decision and therefore in their
act of creating law does not mean that these courts are an entity
independent of the sovereign. "Sovereignty," says Austin, "includes
the judicial as well as the legislative power."45 When the courts
make law, this is the sovereign making law, for the courts are part
of the sovereign and unless the supreme sovereign revokes the act
of the subordinate sovereign, there is the "tacit" assumption that it
is the sovereign itself which is legislating when the court makes a
decision. 46 Judicial law-making is for Austin one of the recognized
40. Id. at 401. (Emphasis added.)

41. Id. at 5.
42. See, e.g., VINOGRADOFF, COMMON SENSE IN LAW 150 (2d ed. 1946).
43. 2 LECTuREs 612.
44. PROVINCE 191.
45. 2 LECTURES 520.
46. 2 id. at 512.
19601 AUSTIN
ways in which law gets made. But what needs to be understood

here is that this demonstrates not only the logical symmetry of his
argument, where the supremacy' of the sovereign as the only source
of law is preserved; it also illustrates that it is in the constant at-
tempt to implement the moral norms of a society that judges make
the law, or at least that moral rules are constantly being trans-
formed into legal rules. Austin is very explicit on this when he
writes:
Now a merely moral, or merely customary rule, may take the quality*
of a legal rule in two ways: -it may be adopted by a sovereign or sub-
ordinate legislature, and turned into a law in the direct mode; or it may
be taken as the ground of a judticial decision, which afterwards obtains
as a precedent; and in this case it is converted into a law after the
judicial fashion. In whichever of these ways it becomes a' legal rule,
the law into which it is turned emanates from the sovereign or . . .
judge, who transmutes the moral'or imperfect rule into a legal or perfect
one. 47
But Austin adds immediately, with respect to these moral rules, that
"Those who maintain that it existed as a law before it was enforced
by legal sanction, or that it was established as law consensu uten-
tium confound law with positive morality. '48 And while he- will
admit that "courts of justice are a source of law, insofar as law con-
sists of judicial decisions," he nevertheless plac6s the courts into the
direct line from the sovereign as "legislating in subordination to the
sovereign" and that therefore the courts are only "reservoirs ... f d
from the source of all law, the supreme legislator, and again emitting
the borrowed waters which they receive from that Fountain."49 But
surely behind this metaphorical diction there resides'more than a
conception of an arrangement of superior and subordinate sovereigns,
for the quality of rule, whose content is fashioned for the directio*n
of human conduct, comes out of the moral sentiment of the law-
maker and not the abstract recesses of the sovereign. Moreover, if
the law does not represent a self-contained or closed logical system,
then it must follow that the judges are not tied to the 'specific im-
plication of a prior statute or even of a precedent. Courts are al-
ways "distinguishing" new cases for the purpose of taking them out
of the restrictive bounds of previous cases and precedents. When
judges distinguish cases in this manner they are expressing their
urge to achieve "justice" which might not be achieved by a mechani-
cal application of a previ6us decision.
The central philosophical question raised by this activity of the
judge is whether in distinguishing cases and interpreting statutes he
47. 2 id. at 536.
48. 2 id. at 537.
49. 2 id. at 510-11. L
{4ICcj
is creating new law based on moral considerations, independent of

the supreme sovereign. Professor Hart has made the distinction be-
tween the core of a law and its penumbra, suggesting that it is in-
deed necessary for judges to interpret the meaning of statutes in
those rare cases where an unexpected example comes before them.50
Thus, a statute regulating the interstate traffic of "vehicles" may
become obscure when the case involves an airplane. Did the legis-
lators have in mind only automobiles, trucks, trailers and motor-
cycles? Or did they have in mind the maintainance of the safety of
people against the danger of improperly operated vehicles, in which
case the emphasis shifts from the limited list of vehicles to the more
basic question of the danger to people from mechanically operated
vehicles whatever their nature. But t6 put the problem in that form
suggests that it is only in the penumbral situation that questions
occur and only on these occasions that there is an extension of an
otherwise clear core of law. To speak of a core of a law implies
that once a law is made there is only the problem of applying it, that
the core has a permanent life, and that all decisions based upon it
must in some way be tightly tied by logic to it.' If we were to look
at decisions in this manner we would have to hold that every inter-
pretation of a law is already contained'in the law as it is. The most
this would do is preserve the fiction that law is a command of the
sovereign and this would be stretched to include the judicial in-
terpretations of statutes. It -would also mean that judges are con-
cerned only with the law as it is and not as it ought to be. When
judges have to deal with a penumbral situation, they are, it is held,
dealing only with an exceptional situation. But do laws have such a
core? Does the fourteenth amendment have a specific core?' Is the
problem of racial segregation part of the core or penumbra? Is the
ruling of the Supreme Court that it is unlawful to segregate the
races in schools part of the core or the penumbra? Is the interpreta-
tion of the fourteenth amendment to be tied' rigourously to the
intent of the framers of that amendment? Should the judges' opinion
rest on an historical study of whether the framers had in mind the
segregation of schools or not? Or, is it possible that tle fourteenth
amendment is the expression of the sovereign, in this case the peo-
ple, that the law "ought to be" such as to conform to the moral
dimension which that amendment expresses? There can hardly be
any question that in the process of making a decision, judges must
refer not only to the premises of the "core" of the law but to the
circumstances of the particular case and to the general question
50. Hart, Positivism and the Separation of Law and Morals, 71 HARV. L. REV.
607 (1958); cf. Holmes' dissent in Schlesinger v. Wisconsin, 270 U.S. 230, 241
(1925): "[T]he law allows a penumbra to be embraced that goes beyond
the outline of its object in order that the object may be secured."
1960] AUSTIN
of the justice of the decision. It is clear that the "slot machine" con-
cept of the law is far too great a-n oversimplification of what law is.
But are we, then, justified 'in saying that the activity by which
judges seek to arrive at a decision and their consideration of what
ought to be the purposes and aims of the law in terms of social policy
are part of the law? To this question the positivists have always re-
plied in the negative, for they have based their science of law on
the description of the "is" and not the "ought to be."
But, again, in terms of the argument of positivism itself, the judicial
concern over what a law is or ought to be and his concern over the
justice of the decision is part of the phenomenon of the law. More-
over, since the positivist holds that' the court is the sovereign then
what the court says and does is the law. The meaning of the term
law therefore includes what the judges do in formulating their "com-
mand," that is, their decision. It' is not accidental that the judges
constantly strive to achieve justice (what the law ought to be). The
judge's engagement in weighing the requirements of justice and
thereby going beyond the mechanical approach of the machine is an
intrinsic part of what the law is. The fact that the judge engages
in these activities is far mor6 intimately related to what law is than
that he writes his opinions with a pen or with a pencil, or that he
walks to the court or drives in a car. All these activities are involved
in the process of rendering a decision, but only the activity in which
he is concerned with the right decision is, among these examples,
truly part of the law. Again, this would have to follow from the
view of sovereignty offered by Austin, for the law is the command
of the sovereign directing, the conduct of those in the habit of obey-:
ing. And just as we saw that Austin's primary legislator was not
free to make laws ih any arbitrary manner, that he was under moral
limitations; so also the judge, still under the influence of that original
moral constraint, is engaged in the activity of realizing the whole
intent of the law-justice. This process is very subtle and is attended
with many dangers. But the dangers suggested in this procedure
indicate something about the nature of law which would otherwise
be overlooked in the interests of having a neat theory. The danger is,
of course, that this interpretation of the judicial function might
open up the courts to the subjective -whims of individual judges. But
this danger has to be put over against the danger that the law will
become irrelevant and that fictions will constantly have to be in-
vented in order to give the semblance of continuity and certainty
in the law. Certainty in law must collide with the quest for justice,
and this collision ought to indicate that the nature of law is mis-
conceived if it is treated as a static structure; for such a static form
cannot reflect the subtle variations in which human beings confront
each other, nor does it recognize that human life is dynamic and
cannot be contained in any partially conceived framework of be-
haviour. The judicial process is an intrinsic part of the law because
it is the means by which the stabilities of the rules are applied to
the dynamic behaviour of men, and this process operates under the
a~gis of the quest for justice. In this sense, what a philosopher
thinks the law ought to be might not be part of the law in the strict
positivistic sense of the word, but what the judge thinks it ought to
be is part of the law. And since the judge is part of the sovereign,
the judicial process must be contained in the definition of law. In this
sense, too, what the law "ought to be" is already an aspect of or is
contained in what the law "is."
FORCE, REASON AND THE LAW

Positivism identifies law with force. It could be no other way if
law is to be defined in the narrow sense as the command of the
sovereign. Justice Holmes frequently spoke of the ultima ratio of
law as force. When it comes to the development of a corpus juris, he
-said, the fundamental question is: "What do the dominant forces
,of'the community want and do they want it hard enough to dis-
regard whatever inhibitions stand in the'way."5' He argued that the
most fundamental of the supposed pre-existing rights, the right to
life, is sacrificed whenever the interest of society, "that is, of the
-predominant power in the community is thought to demand it."52
1he fact that the state forces the conscript with bayonets to die for
a cause in which he does not believe gave Holmes no scruples, not
because the safety of the state required such sacrifice, but because
he did not feel that there was any defensible concept of justice or
morality which could overcome the supremacy of force which he
-therefore raised to the highest principle of law. "Our morality," he
said, "seems to me only a check on the ultimate domination of force,
just as our politeness is a check on the impulses of every pig to put
his feet in the trough."5 3 This rhetorical connection between force
and the skepticism about morality is not fortuitious but is the tech-
nical doctrine of positivism. Force becomes the ultimate principle
of law simply because there is no other alternative once the notion
54
of justice is removed as the ground of law.
We have already seen that Austin's theory of sovereignty is
rigorously limited to the fact of command, and in this regard he is
51. LERNER, THE MIND AND FAITH OF JUSTICE HoLMES, 432 (1943) (letter to
J. C. H. Wu); cf. 1 HOLMES-PoLLOCK LETTERS, 163 (Howe ed. 1941); POUND,
SOCIAL CONTROL THROUGH LAW 107 (1942).
52. Holmes, NaturalLaw, 32 HARV. L. REV.42 (1918).
53. LERNER, THE MIND AND FAITH OF JUSTICE HOLMES 431.
54. GENERAL THEORY 18-21.
1960] AUSTIN
restating the conclusions of Hobbes and Bentham. It would be diffi-

cult to sustain the notion that these men singled out force as the cen-
tral characteristic of law because they did not admit the possibility of
any moral truth. Indeed, a careful reading of their works reveals
that they all utilize the language of natural law.55 But what can be
said about them is that they did not believe that there was any
universal validity to moral systems' nor did they believe that moral
ends could be "proved" by natural reason. The scope of reason is for
them limited to the empirical world and they all wished to employ
the methods of empirical science in developing their theory of law.
Because they saw such a severe limitation- t the scope of rational
competence, they refused to conceive of law in such non-empirical
terms as "justice." The most fundamental -characteristic of law
which the method of science was able to reveal was the element
of coercion or force. The whole concept of law therefore revolved
for them around the notion of sanction, or threat of evil or pain. The
"essence" of law therefore becomes force, for not only does "the idea
of coercion.., become inseparably ,bonnected with that of a law," but
even more specifically "it is upon punishment that every thing
turns."5 6
It does not help us in this problem to remind ourselves of the truly
deep moral sensitivity of men like Holmes, Bentham and Austin,_ for
it is with the consistency and accuracy of the theory that we are con-
cerned. To point to their moral insights, particularly in the judicial
capacity, as we frequently do in Holmes' case, is to point to that
very quality in the jurist which we all instinctively look for, which
is the opposite of arbitrariness. The fact of force is without doubt a
substantial element in law, biit to define law in terms of force is not
to define law but force. When we come to the defense of such men
as Holmes by saying that he would be incapable of using the power
of his position without regard to moral considerations, we are in
effect saying that a judge, or the sovereign, "ought not" to disengage
the fact of his power from the requirements of justice. If this were
not the case, there would really never, be any debate about the
nature of law, for if indeed the essence of law is its coercive ele-
ment, if the sovereign is defined solely in terms of power, then
men would not be so exercised over the question whether might is
right. Is it not rather the case that by the idea of law is meant the
domestication of force by-morality? Does not constitutional law
indicate that what is binding upon the subject by the threat of
ultimate physical coercion is binding on the sovereign by a moral
55. Pollock, The History of the Law of Nature: A Preliminary Statement,
1 COLUM. L. REv. 30-31 (1901).
56. BENTHAM, LIMITS OF JURISPRUDENCE DEFINED n.227 (Everett ed. 1945).
sanction? 57 Yet Austin stripped all other considerations from his

definition of law except force, or as Maine has said, "Sovereignty, for
the purposes of Austin's system, has no attribute but force, and con-
sequently the view here taken of 'law,' 'obligation' and 'right' is a
view of them regarded exclusively as products of coercive force. The
'sanction' [force] thus becomes the primary and most important
58
member of the series of notions and gives its color to all the others."
This exclusive preoccupation with force is what renders Austin's
theory of law inaccurate, for it puts the center of gravity in the wrong
place in the phenomenon of law. "A certain behaviour is not law-
ful," says Radbruch, "because it is commanded or enforced, but it is
commanded or enforced because it is law, because it is just and
socially necessary in the opinion of the law giver. . . . To see the
essence of law in command and sanction is therefore a falsification of
the reality of law."5 9
The separation of law and morals in positivism is the understand-
able result of the attempt to differentiate between a legal order, a sys-
tem of morality and a set of religious beliefs. But it does not follow
from any kind of logic that the legal order does not contain ele-
ments of moral and religious beliefs. Indeed, our argument has
been that it is because positivism has tried to urge that law has
"no moral connotations whatsoever" that it has obscured the meaning
of law. To be sure, the object behind the formulation of, say, Kel-
sen's "pure" theory of law is to rid the definition of law of all politi-
cal and subjective ideological ingredients. That ideology moves into
the content of law cannot be questioned. For example, Professor
Panunzio declared in his inaugural lecture that "we must 'fascicize'
the instruction of law .... Instruction in the theory of the law is
like instructionin religion."60 Even the Marxists, whose chief criticism
of bourgeois law is that it is simply the instrument of ideology, have
begun to reconstruct law along ideological lines: "The Soviet Courts,"
writes Gintsburg, "were designed to render specific 'class justice'.
. . . [They] are called upon to carry out the policy of the soviet
government and communist party as well as the Marx-Lenin Doc-
trine."'61 Recognizing that a system of law can embody ideology in its
most pathological form, does it follow that legal theory must isolate
the phenomenon of law from moral and religious elements? Is it
even theoretically possible to define law accurately without taking
into consideration its moral aspects? It is important, to be sure,
57. VINOGRADOFF, COMMON SENSE iN LAw 29 (2d ed. 1946).

58. MAINE, EARLY HISTORY OF INSTITUTIONS 363 (1875).
59. Radbruch, Anglo-American JurisprudenceThrough Continental Eyes, 52
L. Q. REV. 530, 534 -(1936).
60. Steiner, FascistConcept of Law, 36 COLUM. L. REV. 271 (1936).
61. Gsovski, The Soviet Concept of Law, 7 FORDHAM L. REV. 4 (1938).
1960] AUSTIN
for scientific reasons, to be able to distinguish law from other

modes by which human conduct is controlled; still, the jurist's
chief concern should not be the preservation of certain "scientific"
presuppositions if this makes it impossible to render a faithful
analysis of the total phenomenon of law. If it is a presupposition of
62
the science of law that only what can be physically observed
will have a rightful place in the construction of a theory of law, then
obviously there will be no place in legal theory for the concept of
justice. But this does not 'prove that justice is not an essential ele-
ment of law; it proves only that legal science has no way of handling
the question of justice-that is, that the science of law is incapable
of dealing with the total phenomenon of law. By virtue of its
methodological premises the science of law is forced to distort the
meaning. of law because it does not ask: "What is the full nature
of law?" but asks instead: "With what aspects of the phenomenon of
law can scientific method deal?" In this case, the scientific method
is like a net which catches only some fish, while the rest escape.
That the ideological content of law may be "subjective" or "relative,"
and on that account not acceptable to everyone, does not alter the
fact that there can be no law at all without the presence of "value
content." An adequate theory of law must be broad enough to deal
with all the facts in the phenomenon of law including the fact of
value.
To say that the essence of law is force is to say that law is es-
sentially a technique of social control. And to call law a technique
is to disengage it from any particular ends, from its moral purposes.
Kelsen argues that to analyze the law as it is, is to free the law from
"the metaphysical mist" with which it gets covered by speculations
about justice. 63 But the error Kelsen seems to make is to think that
if he "declines to give a moral judgment on the positive law, '64 he
has thereby eliminated from the phenomenon of law the value con-
tent that is already there. It is not the scientific jurist's moral judg-
ment about the law that is decisive here, it is the moral concern of
the legislator which produces the law's moral element. Even as a
"scientific" observer, the theorist should see that law is not just ab-
stract force, it is always force in conjunction with "ends." Yet Kelsen
argues that the only way to distinguish the legal order is to see
it as a technique of force:
What distinguishes the legal order from all other social orders is the
fact that it regulates human behaviour by means of a specific technique.
63. Kelsen, Function of the Pure Theory of Law, in 2 LAW: A CENTURY
OF PROGRESS 237 (1937).
64. Ibid.
If we ignore this specific element of the law, if we do not conceive of

the law as a specific social technique, if we define law simply as order
or organization, and not as coercive order (or organization), then we
lose the possibility of differentiating law from other social phenomena.6 5
Nowhere do we see the radical reconception of the meaning of law

so vividly as in this attempt to "reduce" law to force. For along with
this identification of law with force comes a new meaning to the
word "ought" or to the whole notion of obligation. The command theory
of law would say that men should obey the law simply because they
are commanded to do so. They "ought" to obey the law not for any
moral reasons but solely because there is a threat of force. This is
what the separation of law and morals entails. From this positivistic
view the law does not prescribe ways in which men "ought" to be-
have; it simply prescribes norms for behaviour, and if men do not
comply with these rules, then the officials of the government "ought"
to bring down the sanction upon such non-conforming persons. The
concept of "ought" is therefore quite radically reconceived. As Kelsen
says: "That somebody is legally obligated to certain conduct means
that an organ [of the state] 'ought' to apply a sanction to him in
case of contrary conduct." 66 This is truly the negation of whatever
men have heretofore thought to be the meaning of law, for while at all
times jurists have seen the importance of the sanction behind a
legal rule, there has rarely been such a decisive separation of morals
or justice from the structure of law. This has the effect, again, of
making force the principle of law. 67 But as Radbruch writes: "The
legal principle cannot... have the character of a command, but must
be a judgment of values. Its primary form is not: Do this! or: For-
bear from doing that! but: This is necessary for the sake of justice
and the general good."6 8 What is behind this persistent identification
of law with force and the apparent horror of finding the value ele-
ment in law? One answer seems to be that ever since Hobbes sought
to establish legal theory on a scientific basis, force has displaced
justice as the essence of law. The problem has to do with the theory
of knowledge. Kelsen phrases the problem in very sharp terms by
saying: "Positivism and (epistemological) relativism belong together
65. GENERAL THEORY 26; cf. pp. 21, 22, 438.

66. Id.at 60. "The concept of legal duty also implies an 'ought.' That
somebody is legally obligated to certain conduct means that an organ
'ought' to apply a sanction to him in case of contrary conduct. But the
concept of legal duty differs from that of moral duty by the fact that the
legal duty is not the behavior which the norm 'demands,' which 'ought' to be
observed. The legal duty, instead, is the behaviour by the observance of
which the delict is avoided, thus the opposite of the behavior which forms
a condition for the sanction. Only the sanction 'ought' to be executed."
67. Id. at 58-59.
68. Radbruch, Anglo-American Jurisprudence Through Continental Eyes,
52 L.Q. Rzv.534 (1936).
19601 AUSTIN
just as much as do the natural law doctrine and (metaphysical) ab-

solutism. Any attemptto push beyond the relative-hypothetical foun-
dation of positive law . . . means the abandonment of the distinction
' 69
between positive and natural law.
As one pursues Kelsen's positivistic separation of law and morals,
it becomes clear that he is concerned not merely with separating
these two modes of ordering behaviour nor even with distinguishing
them. His argument is rather that the difference between law and
morals is that while we can "know" something about law, we cannot
have any "cognition" of value or moral terms. The impact of his
scientific method is therefore not simply to say that the contents of
legal science are different from legal philosophy, but that we can get
reliable knowledge about law only through empirical description.
Over against the classical view about law as announced, for example,
by Plato, who said that "no law or ordinance whatever has the right
to sovereignty over true knowledge, 7 0 Kelsen radically rephrases legal
theory by saying that "cognition can grasp only a positive order evi-
denced by objectively determinable acts. This order is the positive
law," and is known only by positivism, which is "a radically realistic
and empirical theory. It declines to evaluate positive law."7' The sepa-
ration of law and morals is therefore an attempt to conceive of law
independently of morals precisely because moral discourse is "sub-
jective" and incapable of objective proof. But it does not follow
logically that, just because we cannot furnish the same kind of proof
for the concept of justice which the law contains as we can about
the mechanism of force involved in law, this value element is not
there as a most significant part of law. What would follow logically
would be to admit the presence of value elements and then reserve
the problem of dealing with the "measure" of values as a significant
part of the study of jurisprudence. The law is always employed at
that point where men confront real alternatives in their behaviour,
and the law is used for signifying which direction they must take in
the face of several other possible ways of action. To be involved in
fashioning such decisions for the direction of behaviour is precisely
the concern of morality and at this point the function of law and
morals becomes the same. The law could have no other meaning,
could not indeed be "thought" if it were not seen as the agency by
which men were confronted by an imperative to choose an "ought."
The fact that the "ought" and the "is" are two different realms is
what makes law possible in the first place. It is true, as Bentham
says, that "every legal command imposes a duty,"72 but is this duty
70. PLATO, LAWS IX, 875.
72. BENTHAM, LIMITS OF JURISPRUDENCE DEFINED, 142 (Everett ed. 1945).
VANDERBILT LAW REVIEW [Vor,. 14
simply the consequence of the "fact" that it was commanded? Can

legal duty be based simply upon the command without any reference
to its moral defensibility? No more difficult question can be raised
in legal theory because here again we come face to face with the
problem of the "bad" law. But we need to ask whether the duty to
obey the law is generated by the law itself or whether it would be
more accurate to say that the law's command is the mode and means
by which men are reminded or recalled to a duty which exists prior
to the law in a moral form. Austin said the latter when he pointed
to men's evil tendencies as the very cause for law; wherefore it must
follow that law is engaged in the consequences of men's evil and its
correction, and there must always lurk in the law some conception
of what the law is trying to achieve. It would make no sense to
say that the law attempts to overcome the evil of human nature by
perpetrating its own fresh evils. Whether the law succeeds or not
in this attempt to rectify human evil is one question, and the fact
that this attempt to rectify evil is what characterizes the regime of
law is another. The more we consider the characteristics of law the
more it becomes evident that the law is a matter of "thought" or
of "consciousness." It represents the capacity men have of trans-
cending, that is, stepping back from and looking at their own and
other's behaviour and "evaluating" or "judging" that behaviour as
desirable or undesirable and then "thinking" of alternative ways of
behaviour which would be "better" and would more adequately lead
to the "greater good" or "happiness" of the "greatest" number. This
is what in fact lies behind all law, and to hold that men do not have
the capacity to achieve a perfect knowledge of the absolutely and
eternally good does not change this characteristic of law. Nor are
men relieved of the necessity of grappling with what the law
"ought" to be just because such discussions have to transpire under
the cloud of subjectivism. In spite of the difficulties of epistemological
relativism, the persistence of the question of moral ends suggests
that such ends cannot be separated from our understanding of what
law is. And nobody was more aware of this than those who sought
to fashion the positivistic separation of law and morality, namely
Bentham and Austin.
THE ENDs OF LAW

Positivism raises doubts about the possibility of finding trustworthy
guides in human nature for the ends of law. Nevertheless, Austin
had focused upon the significant fact that all legal systems embody
certain fundamental notions which are "necessary" and "bottomed
in the common nature of man." Austin's thought nowhere resembles
the natural law mode of reasoning more than at this point when
19601 AUSTIN
he looks to man's nature for the ends of law and indeed for the
understanding of the fuller meaning of law. His severe and cryptic
conception of law as a command is greatly modified when the mean-
ing of law is connected with those fundamental notions which are
"bottomed in the common nature of man. '73 So significant did
Austin hold these notions which go into the making of laws to be
that he said that "it is impossible to consider jurisprudence quite
apart from legislation," and that "if the causes of laws . . . be not
assigned, the laws themselves are unintelligible."7 4 The rather large
section devoted to ethics in his Provinceof JurisprudenceDetermined,
about which he said that "it was not a deviation from my subject
to introduce the principle of utility," certainly shows how close
Austin conceived the relation of law and morals to be. Thus, the
principles of legislation turn out to be fundamental also in under-
standing the prior question of the nature of law.
Not one of the early positivist jurists ever disengaged the idea of
law from the notion of the ends of law successfully. They all begin
by announcing that law and morals are two distinct subjects, that
law is simply a command. But within the same treatise they deal
with the ends or purposes of law. And they deal with the problem of
ends in such a way as to indicate that without such a connection be-
tween "ends" and command, there can be no full understanding of
what is meant by law. Hobbes had raised order or security as the
minimum end and Bentham had pushed far beyond this minimum to
the much wider end of "happiness" or the greatest good for the
greatest number, and Bentham took his cue from "the natural con-
75
stitution of the human frame."
Whereas present day positivists recoil from discussions of morals
and on that account wish to disengage the law from moral concerns,
the founders of this school discovered that they could not sustain
this separation. Even though Bentham and Austin were particularly
concerned to rest their theories on scientific and empirically verifiable
information, they soon found themselves, and with no apology, deal-
ing with morals just the same. Their initial impetus to work out a
new system of jurisprudence had come from their dissatisfaction over
Blackstone's theological conception of man and his attempt to relate
law to these characteristics of human nature. A good idea of the
paradoxical attitude the utilitarians showed on this matter is found
in Gibbon's note on Blackstone's Commentaries. When he came to
that part which deals with "The Nature of Laws in General," Gibbon
wrote:
73. See the lecture, "Uses of Jurisprudence," in PRovINcE 365, 367, 369.
74. 2 LEcTUREs 1113.
75. BENTHAM, TH-E PRINCIPLES OF MoRALS AND LEGISLATION 4 (Blackwell
ed. 1948).
I have entirely omitted a metaphysical enquiry upon the nature
of Laws in General ... and a number of sublime terms, which I admire
as much as I can without understanding them. Instead of following this
high a priori road, would it not be better humbly to investigate the de-
sires, fears, passions and opinions of the human being, and to discover
from thence what means an able legislator can employ to connect the
private happiness of each individual with the observance of those laws
which secure the well being of the whole.7 6
In one stroke Gibbon rejected one system of morals underlying the

law and offered another system, namely, utilitarianism. Bentham,
too, had raised the principle of utility to the center of attention in
defining the ends of law. Although Bentham wanted to rest juris-
prudence upon science, he nevertheless made the art of legislation
part of that science, thus indicating that jurisprudence is also con-
cerned with what the law "ought to be." John Stuart Mill said about
Bentham that he "expelled mysticism from the philosophy of law,
and set the example of viewing laws in a practical light, as means to
certain definite and precise ends. '7 7 But "ends" have to do with
values and these are not capable of the kind of proof the scientist
looks for, not even when based upon the principle of "utility." Ben-
tham was aware of this for he wrote: "Is it [i.e., the principle of
utility] susceptible of any proof? it should seem not: for that which
is used to prove everything else, cannot itself be proved: a chain of
proofs must have their commencement somewhere. To give such
proof is as impossible as it is needless. '78 Yet he clearly specified the
principle of utility, the idea of the greatest good of the greatest
number, as the measure for the ends of law: "The common end of all
laws as prescribed by the principle of utility is the promotion of the
public good." 79 This could be looked at from the reverse side too, that
is, looking not only at the common good, but also listing the offenses
which subvert the common good: "By classing offenses ... according
to their mischief, laws have already been classed according to their
ends: so that in giving an analysis of offenses, we have given, as
far as it has gone, an analysis of legal ends."80 Bentham has, then,
pursued the matter of ends far more extensively than those positivists
who suggest that we can agree only upon a few minimum notions
about the requirements of society,8 ' for Bentham goes far beyond
76. Holdsworth, Gibbon, Blackstone and Bentham, 52 L. Q. REV. 46, 50

(1936).
77. Id. at 51.
78. BENTHAM, THE PRINCIPLES OF MORALS AND LEGISLATION 4 (Blackwell ed.
(1948); cf. BENTHAM, LIMITS OF JURISPRUDENCE DEFINED 115-16 (Everett ed.
1945).
79. BENTHAM, LIMITS OF JURISPRUDENCE DEFINED 115 (Everett ed. 1945).
80. Ibid.
81. Hart, Positivism and the Separation of Law and Morals, 71 HARV. L.
REV. 621 (1958).
19601 AUSTIN
the mere notion of order for physical security, provision for keep-
ing promises and contracts, and the security of possessions. For
Bentham, the principle of utility was a radical, creative and "danger-
ous" principle, dangerous precisely because it would call for vast
reform not only in the laws but in the actual behaviour of the
society. 82 Thus, Bentham brought into the law the moral principle
of behaviour, the moral "ought." Since law and morality were for
him concerned with the same conduct, they had to be based upon
the same principle. Since the law was concerned with the behaviour
morality labeled as "ought" to be done, this same principle thereby
also determined what the law ought to be. When jurisprudence
studies a system of laws, according to Bentham's analysis, it is also
studying in "that branch of jurisprudence which contains the art...
of legislation" what the laws ought to be.83 Thus what starts in
Bentham as an attempt to separate law and morals, ends with a most
intimate, natural law-like identification of law and morals. This
was also the case with Bentham's illustrious predecessor, Hobbes, who
when he considered the ends of law went far beyond the original
empirical analysis of man's nature when he said:
[Tihe duty of a sovereign consisteth in the good government of the
people; and although the acts of sovereign power be no injuries to the
subjects who have consented to the same by their implicit wills, yet when
they tend to the hurt of the people in general, they be breaches of
the law of nature, and of the divine law; and consequently the contrary
acts are duties of sovereigns, and required at their hands to the utmost
of their endeavour, by God Almighty, under the pain of eternal death. 84
Bentham's conception of "ends" is far more profound than just any

ends men might agree upon: he wrote that: "[B]y end is here meant
not the eventual end, which is a matter of chance, but the intended
end, which is a matter of design." 85 This was why Bentham felt
that "the limits of the law seem ... to be capable of being extended
a good deal farther than they seem ever to have been extended
hitherto." 86 What Bentham had in mind here is the very kind of case
Ames had talked about, namely, whether the law could compel one
to be "the good Samaritan. '87 Whereas Ames concluded that "the
law does not compel active benevolence between man and man,"
Bentham came to quite a different view of the matter, asking, "why
should it not be made the duty of every man to save another from
82. BENTHAM, THE PRINCIPLES OF MORALS AND LEGISLATION at xi-xiii (Black-

well ed. 1948).
83. 1 WoRxs OF JEREMY BENTHAM 148 (Bowring ed. 1843).
84. HOBBES, ELEMENTS OF LAW 142; cf. 22, 71, 72-73 (Tnnies ed. 1928).
85. BENTHAM, LIMITS OF JURISPRUDENCE DEFINED 113 (Everett ed. 1945).
86. 1 WoRKs OF JERE~MY~ BENTHAM 148 (Bowring ed. 1843).
87. Ames, Law and Morals, 22 HARv. L. REV. 97, 112 (1908).
mischief? '88 Then he goes on to indicate the kind of situation the

law, following the lead of morality, should incorporate into its "ends":
A woman's head-dress catches fire: water is at hand: a man, instead of
assisting to quench the fire, looks on, and laughs at it. A drunken man,
falling with his face downward into a puddle, is in danger of suffocation.
Lifting his head a little on one side would save him: another man sees
this, and lets him lie. A quantity of gunpowder lies scattered about the
room: a man is going into it with a lighted candle: another, knowing
this, lets him go in without warning. Who is there that in any of these
89
cases would think punishment misapplied?
Thus, whereas Kelsen, limiting himself strictly to a description of
the ends of law, can only say that the end of law is to bring about
certain reciprocal behaviour of human beings, "to make them refrain
from certain acts which, for some reason, are deemed detrimental
to society, and to make them perform others which, for some reason,
are considered useful to society,"9 0 the natural law theory always im-
plies that this phrase, "for some reason," can be drawn from the
nature of man, and in this respect Bentham followed the pattern
of natural law.
Similarly, Austin was bound to consider the ends of law for al-
though he defined law as an aggregate of commands, he was also
aware of the fact that "commands... proceed not from abstractions,
but from living and rational beings." 91 As such, those who set the
commands were bound to consider the proper ends which human
beings should pursue in their behaviour. At this point, Austin em-
phasized the close relation between the law of God and the positive
law. While he never confused the two, he did argue that the positive
law must be fashioned in accordance with the law of God. The law
of God, he said, could be known in one of two ways, namely, either
by direct revelation or through the "index" of utility. Since God in-
tends the well-being of all his creatures, it is possible to determine
the goodness or the rightness of a law by simply applying the test
of utility: does the law increase the happiness or the good of the
society? The ends of the law are therefore to be derived from the
nature of man as understood in a theological sense. Commenting on
the careful analysis he had made of the principle of utility in the
previous three chapters, he goes on to say: "I made this explanation
at a length which may seem disproportionate, but which I deemed
necessary because these laws [of God], and the index by which they
are known, are the standard or measure to which all other laws should
conform, and the standard measure or test by which they should be
88. 1 WoRKs or JEREMY BENTHAM 148 (Bowring ed. 1843).
89. Ibid. (Emphasis added.)
90. GENERAL THEORY 15. (Emphasis added.)
91. PROVINcE 43.
1960] AUSTIN 149
tried." 92 To be sure, although the sovereign "ought" to shape his

commands with these laws of God in mind, it is nevertheless the
sovereign who issues the command, and his command is not identical
with the law of God but is at most a "copy . . . of the [divine]
model." 93 But the importance of this passage is that Austin con-
ceived of law as springing from something essential in the nature
of all men and all societies, as if to say that the basis of law, and
therefore ultimately the basis of obedience, is not simply the fact
of command but rather the universal perception by men of the utility
of government. But by this he also meant that there are certain ends
which the law must seek-ends which the very notion of law entails. 94
92. Id. at 131.
93. Id. at 163.
94. Id. at 301.

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Vanderbilt Law Review

Austin's Theory of the Separation of Law and Morals

Follow this and additional works at: https://scholarship.law.vanderbilt.edu/vlr

The lingering influence of the natural law theory in England

a rule's conformity with morals was irrelevant in determining

this distinction can we preserve the possibility of the moral criticism

POSITIWSM AND THE SOURCE OF LAW

morally indifferent entity, barking out commands after the manner

hensible when law is viewed solely as a command; it is always a

prove that every single law is a moral law or in conformity with

The Concept of Law and the Common Nature of Man

with the problem of human evil and is viewed as the correction of

The Moral Basis of Sovereignty

is what complicates, or distorts, all discussions about the nature of

in detail how the Parliament works. He was concerned with the

27. 2 id. at 745-46.

The Problem of the Validity of Law

ultimate validity simply from proper enactment. Kelsen puts this

Also, this basic norm "is presupposed to be valid because without

37. GENERAL THEORY 394.

peratives. Similarly, Kelsen's system takes on a different mood when

Morality and the JudicialProcess

40. Id. at 401. (Emphasis added.)

ways in which law gets made. But what needs to be understood

is creating new law based on moral considerations, independent of

FORCE, REASON AND THE LAW

restating the conclusions of Hobbes and Bentham. It would be diffi-

sanction? 57 Yet Austin stripped all other considerations from his

57. VINOGRADOFF, COMMON SENSE iN LAw 29 (2d ed. 1946).

for scientific reasons, to be able to distinguish law from other

If we ignore this specific element of the law, if we do not conceive of

Nowhere do we see the radical reconception of the meaning of law

65. GENERAL THEORY 26; cf. pp. 21, 22, 438.

just as much as do the natural law doctrine and (metaphysical) ab-

simply the consequence of the "fact" that it was commanded? Can

THE ENDs OF LAW

In one stroke Gibbon rejected one system of morals underlying the

76. Holdsworth, Gibbon, Blackstone and Bentham, 52 L. Q. REV. 46, 50

Bentham's conception of "ends" is far more profound than just any

82. BENTHAM, THE PRINCIPLES OF MORALS AND LEGISLATION at xi-xiii (Black-

mischief? '88 Then he goes on to indicate the kind of situation the

tried." 92 To be sure, although the sovereign "ought" to shape his

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