Positivism and the Separation of Law and Morals

Abstract

This chapter attempts to defend a view which Mr. Justice Holmes, among others, held and for which he and they have been much criticized. The nonpejorative name Legal Positivism, like most terms which are used as missiles in intellectual battles, has come to stand for a baffling multitude of different sins. One of them is the sin, real or alleged, of insisting, as Austin and Bentham did, on the separation of law as it is and law as it ought to be. They stood firmly but on their own utilitarian ground for all the principles of liberalism in law and government. The chapter focuses on a distinctively American criticism of the separation of the law that is from the law that ought to be. It emerged from the critical study of the judicial process with which American jurisprudence has been on the whole so beneficially occupied.