Law and Morality: An Analytic Perspective

Abstract

Noting the similarities in content and form between law and morality, this article examines significant differences between these two systems of normative social order. Having distinguished positive and critical morality the article discusses whether (a) law ought to incorporate the positive morality of the citizens of that jurisdiction, (b) the critical moral principles which we adopt to criticize positive morality ought to be the same as those we use to criticize law, and (c) there is such a thing as critical as opposed to positive morality. This involves discussing the theoretical disagreements between Legal Positivism and Natural Law theory in terms of the ‘separability thesis’ and covers the classic controversy between Devlin and Hart on the enforcement of morality.