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 others have been much criticized. The chapter starts by stating why it is thought that Holmes, whatever the vicissitudes of his American reputation may be, will always remain for Englishmen a heroic figure in jurisprudence. It also gives the Holmes Lecture at Harvard, which contains many of the arguments which are used in defence of a form of legal positivism in the concept of law. It also considers not only criticisms of the particular point which the utilitarians had in mind, but also the claim that there is an essential connection between law and morals. Then, it describes a distinctively American criticism of the separation of the law that is, the law as it is from the law that ought to be.

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