Main ideas
Legal realists say that the law is what judges say it is; the question “what is the law?” is best answered with a prediction about how judges will decide.
Legal positivists say that the law is rules given by legal authorities; the question “what is the law?” is best answered by a description of the relevant rules.
We spent today’s class trying to identify the similarities and differences between these views.
What the law is
As Nina pointed out, both Holmes and Hart hold that law and morality are distinct. That means that there is no necessary relationship between the law and morality. It (probably) does not mean that there is no possible relationship between the two: if the legal authorities have designated some parts of morality as part of the law, then they are part of the law according to the positivists.
Nonetheless, there is a tendency in Holmes’s position to deny that there is a distinction between what the law is and what it ought to be. If the law is what judges decide it is and judges have to make their decisions by considering what it ought to be (“social advantage”), then considerations of what the law ought to be are necessarily part of what the law is. (Hart himself thinks that Holmes’s own opinion would not have gone this far; see Hart, p. 59, right column).
Ben hit on Hart’s main reply. It is that there are some areas of the law that are not indeterminate. Even if the law is sometimes so unclear that judges have to settle what it is, it does not follow that it is always that way. When the law is clear, there is no need for judicial decision about what the law is and so no need for considerations of what it ought to be in answering the question “what is the law?”.
But what about the cases that are indeterminate? As I said, I’m of two minds about those. I’ll spare you further musing.
The rule of law
Holmes and Austin have one thing in common. They think that what the law is must be settled by a final human authority: the sovereign for Austin or the highest court of judges, for Holmes.
For Hart, the law consists in rules. Any human authority could be mistaken. Of course, there may be a final human authority: a system may have a supreme court and no higher court of appeals. The crucial difference is that Hart need not insist that this highest court is necessarily right about what the law is.
There may be no recourse, but you could still be correct even if you lost your case. And a subsequent court could agree with you … in hearing a different case, of course.
In that way, Hart’s version of positivism comes closer to the ideal of “rule by law and not men” than Austin’s positivism or Holmes’s realism.
A question about that
Question: if Hart is a positivist, then he thinks all laws come from human authorities, so what do you mean when you say that the final authority could be mistaken?
Excellent question, Brian! In answering, it helps to distinguish the human origins of laws from their subsequent interpretation. Hart held that laws have a human source. But subsequent interpretation might still be incorrect.
Think of human speech. What I said in class today had a human origin: me! But you might interpret what I meant incorrectly when you’re recounting my lecture at dinner (as I’m sure you’re going to do). Come to think of it, I might give an incorrect interpretation at my own dinner table.
Anyone could be mistaken, even if that person has been designated as the final official authority on what I meant.