separation thesis definition

• Search Menu
• Browse content in Arts and Humanities
• Browse content in Archaeology
• Anglo-Saxon and Medieval Archaeology
• Archaeological Methodology and Techniques
• Archaeology by Region
• Archaeology of Religion
• Archaeology of Trade and Exchange
• Biblical Archaeology
• Contemporary and Public Archaeology
• Environmental Archaeology
• Historical Archaeology
• History and Theory of Archaeology
• Industrial Archaeology
• Landscape Archaeology
• Mortuary Archaeology
• Prehistoric Archaeology
• Underwater Archaeology
• Urban Archaeology
• Zooarchaeology
• Browse content in Architecture
• Architectural Structure and Design
• History of Architecture
• Residential and Domestic Buildings
• Theory of Architecture
• Browse content in Art
• Art Subjects and Themes
• History of Art
• Industrial and Commercial Art
• Theory of Art
• Biographical Studies
• Byzantine Studies
• Browse content in Classical Studies
• Classical History
• Classical Philosophy
• Classical Mythology
• Classical Literature
• Classical Reception
• Classical Art and Architecture
• Classical Oratory and Rhetoric
• Greek and Roman Epigraphy
• Greek and Roman Law
• Greek and Roman Papyrology
• Greek and Roman Archaeology
• Late Antiquity
• Religion in the Ancient World
• Digital Humanities
• Browse content in History
• Colonialism and Imperialism
• Diplomatic History
• Environmental History
• Genealogy, Heraldry, Names, and Honours
• Genocide and Ethnic Cleansing
• Historical Geography
• History by Period
• History of Emotions
• History of Agriculture
• History of Education
• History of Gender and Sexuality
• Industrial History
• Intellectual History
• International History
• Labour History
• Legal and Constitutional History
• Local and Family History
• Maritime History
• Military History
• National Liberation and Post-Colonialism
• Oral History
• Political History
• Public History
• Regional and National History
• Revolutions and Rebellions
• Slavery and Abolition of Slavery
• Social and Cultural History
• Theory, Methods, and Historiography
• Urban History
• World History
• Browse content in Language Teaching and Learning
• Language Learning (Specific Skills)
• Language Teaching Theory and Methods
• Browse content in Linguistics
• Applied Linguistics
• Cognitive Linguistics
• Computational Linguistics
• Forensic Linguistics
• Grammar, Syntax and Morphology
• Historical and Diachronic Linguistics
• History of English
• Language Acquisition
• Language Evolution
• Language Reference
• Language Variation
• Language Families
• Lexicography
• Linguistic Anthropology
• Linguistic Theories
• Linguistic Typology
• Phonetics and Phonology
• Psycholinguistics
• Sociolinguistics
• Translation and Interpretation
• Writing Systems
• Browse content in Literature
• Bibliography
• Children's Literature Studies
• Literary Studies (Asian)
• Literary Studies (European)
• Literary Studies (Eco-criticism)
• Literary Studies (Romanticism)
• Literary Studies (American)
• Literary Studies (Modernism)
• Literary Studies - World
• Literary Studies (1500 to 1800)
• Literary Studies (19th Century)
• Literary Studies (20th Century onwards)
• Literary Studies (African American Literature)
• Literary Studies (British and Irish)
• Literary Studies (Early and Medieval)
• Literary Studies (Fiction, Novelists, and Prose Writers)
• Literary Studies (Gender Studies)
• Literary Studies (Graphic Novels)
• Literary Studies (History of the Book)
• Literary Studies (Plays and Playwrights)
• Literary Studies (Poetry and Poets)
• Literary Studies (Postcolonial Literature)
• Literary Studies (Queer Studies)
• Literary Studies (Science Fiction)
• Literary Studies (Travel Literature)
• Literary Studies (War Literature)
• Literary Studies (Women's Writing)
• Literary Theory and Cultural Studies
• Mythology and Folklore
• Shakespeare Studies and Criticism
• Browse content in Media Studies
• Browse content in Music
• Applied Music
• Dance and Music
• Ethics in Music
• Ethnomusicology
• Gender and Sexuality in Music
• Medicine and Music
• Music Cultures
• Music and Religion
• Music and Media
• Music and Culture
• Music Education and Pedagogy
• Music Theory and Analysis
• Musical Scores, Lyrics, and Libretti
• Musical Structures, Styles, and Techniques
• Musicology and Music History
• Performance Practice and Studies
• Race and Ethnicity in Music
• Sound Studies
• Browse content in Performing Arts
• Browse content in Philosophy
• Aesthetics and Philosophy of Art
• Epistemology
• Feminist Philosophy
• History of Western Philosophy
• Metaphysics
• Moral Philosophy
• Non-Western Philosophy
• Philosophy of Science
• Philosophy of Language
• Philosophy of Mind
• Philosophy of Perception
• Philosophy of Action
• Philosophy of Law
• Philosophy of Religion
• Philosophy of Mathematics and Logic
• Practical Ethics
• Social and Political Philosophy
• Browse content in Religion
• Biblical Studies
• Christianity
• East Asian Religions
• History of Religion
• Judaism and Jewish Studies
• Qumran Studies
• Religion and Education
• Religion and Health
• Religion and Politics
• Religion and Science
• Religion and Law
• Religion and Art, Literature, and Music
• Religious Studies
• Browse content in Society and Culture
• Cookery, Food, and Drink
• Cultural Studies
• Customs and Traditions
• Ethical Issues and Debates
• Hobbies, Games, Arts and Crafts
• Lifestyle, Home, and Garden
• Natural world, Country Life, and Pets
• Popular Beliefs and Controversial Knowledge
• Sports and Outdoor Recreation
• Technology and Society
• Travel and Holiday
• Visual Culture
• Browse content in Law
• Arbitration
• Browse content in Company and Commercial Law
• Commercial Law
• Company Law
• Browse content in Comparative Law
• Systems of Law
• Competition Law
• Browse content in Constitutional and Administrative Law
• Government Powers
• Judicial Review
• Local Government Law
• Military and Defence Law
• Parliamentary and Legislative Practice
• Construction Law
• Contract Law
• Browse content in Criminal Law
• Criminal Procedure
• Criminal Evidence Law
• Sentencing and Punishment
• Employment and Labour Law
• Environment and Energy Law
• Browse content in Financial Law
• Banking Law
• Insolvency Law
• History of Law
• Human Rights and Immigration
• Intellectual Property Law
• Browse content in International Law
• Private International Law and Conflict of Laws
• Public International Law
• IT and Communications Law
• Jurisprudence and Philosophy of Law
• Law and Politics
• Law and Society
• Browse content in Legal System and Practice
• Courts and Procedure
• Legal Skills and Practice
• Primary Sources of Law
• Regulation of Legal Profession
• Medical and Healthcare Law
• Browse content in Policing
• Criminal Investigation and Detection
• Police and Security Services
• Police Procedure and Law
• Police Regional Planning
• Browse content in Property Law
• Personal Property Law
• Study and Revision
• Terrorism and National Security Law
• Browse content in Trusts Law
• Wills and Probate or Succession
• Browse content in Medicine and Health
• Browse content in Allied Health Professions
• Arts Therapies
• Clinical Science
• Dietetics and Nutrition
• Occupational Therapy
• Operating Department Practice
• Physiotherapy
• Radiography
• Speech and Language Therapy
• Browse content in Anaesthetics
• General Anaesthesia
• Neuroanaesthesia
• Browse content in Clinical Medicine
• Acute Medicine
• Cardiovascular Medicine
• Clinical Genetics
• Clinical Pharmacology and Therapeutics
• Dermatology
• Endocrinology and Diabetes
• Gastroenterology
• Genito-urinary Medicine
• Geriatric Medicine
• Infectious Diseases
• Medical Toxicology
• Medical Oncology
• Pain Medicine
• Palliative Medicine
• Rehabilitation Medicine
• Respiratory Medicine and Pulmonology
• Rheumatology
• Sleep Medicine
• Sports and Exercise Medicine
• Clinical Neuroscience
• Community Medical Services
• Critical Care
• Emergency Medicine
• Forensic Medicine
• Haematology
• History of Medicine
• Browse content in Medical Dentistry
• Oral and Maxillofacial Surgery
• Paediatric Dentistry
• Restorative Dentistry and Orthodontics
• Surgical Dentistry
• Browse content in Medical Skills
• Clinical Skills
• Communication Skills
• Nursing Skills
• Surgical Skills
• Medical Ethics
• Medical Statistics and Methodology
• Browse content in Neurology
• Clinical Neurophysiology
• Neuropathology
• Nursing Studies
• Browse content in Obstetrics and Gynaecology
• Gynaecology
• Occupational Medicine
• Ophthalmology
• Otolaryngology (ENT)
• Browse content in Paediatrics
• Neonatology
• Browse content in Pathology
• Chemical Pathology
• Clinical Cytogenetics and Molecular Genetics
• Histopathology
• Medical Microbiology and Virology
• Patient Education and Information
• Browse content in Pharmacology
• Psychopharmacology
• Browse content in Popular Health
• Caring for Others
• Complementary and Alternative Medicine
• Self-help and Personal Development
• Browse content in Preclinical Medicine
• Cell Biology
• Molecular Biology and Genetics
• Reproduction, Growth and Development
• Primary Care
• Professional Development in Medicine
• Browse content in Psychiatry
• Addiction Medicine
• Child and Adolescent Psychiatry
• Forensic Psychiatry
• Learning Disabilities
• Old Age Psychiatry
• Psychotherapy
• Browse content in Public Health and Epidemiology
• Epidemiology
• Public Health
• Browse content in Radiology
• Clinical Radiology
• Interventional Radiology
• Nuclear Medicine
• Radiation Oncology
• Reproductive Medicine
• Browse content in Surgery
• Cardiothoracic Surgery
• Gastro-intestinal and Colorectal Surgery
• General Surgery
• Neurosurgery
• Paediatric Surgery
• Peri-operative Care
• Plastic and Reconstructive Surgery
• Surgical Oncology
• Transplant Surgery
• Trauma and Orthopaedic Surgery
• Vascular Surgery
• Browse content in Science and Mathematics
• Browse content in Biological Sciences
• Aquatic Biology
• Biochemistry
• Bioinformatics and Computational Biology
• Developmental Biology
• Ecology and Conservation
• Evolutionary Biology
• Genetics and Genomics
• Microbiology
• Molecular and Cell Biology
• Natural History
• Plant Sciences and Forestry
• Research Methods in Life Sciences
• Structural Biology
• Systems Biology
• Zoology and Animal Sciences
• Browse content in Chemistry
• Analytical Chemistry
• Computational Chemistry
• Crystallography
• Environmental Chemistry
• Industrial Chemistry
• Inorganic Chemistry
• Materials Chemistry
• Medicinal Chemistry
• Mineralogy and Gems
• Organic Chemistry
• Physical Chemistry
• Polymer Chemistry
• Study and Communication Skills in Chemistry
• Theoretical Chemistry
• Browse content in Computer Science
• Artificial Intelligence
• Computer Architecture and Logic Design
• Game Studies
• Human-Computer Interaction
• Mathematical Theory of Computation
• Programming Languages
• Software Engineering
• Systems Analysis and Design
• Virtual Reality
• Browse content in Computing
• Business Applications
• Computer Security
• Computer Games
• Computer Networking and Communications
• Digital Lifestyle
• Graphical and Digital Media Applications
• Operating Systems
• Browse content in Earth Sciences and Geography
• Atmospheric Sciences
• Environmental Geography
• Geology and the Lithosphere
• Maps and Map-making
• Meteorology and Climatology
• Oceanography and Hydrology
• Palaeontology
• Physical Geography and Topography
• Regional Geography
• Soil Science
• Urban Geography
• Browse content in Engineering and Technology
• Agriculture and Farming
• Biological Engineering
• Civil Engineering, Surveying, and Building
• Electronics and Communications Engineering
• Energy Technology
• Engineering (General)
• Environmental Science, Engineering, and Technology
• History of Engineering and Technology
• Mechanical Engineering and Materials
• Technology of Industrial Chemistry
• Transport Technology and Trades
• Browse content in Environmental Science
• Applied Ecology (Environmental Science)
• Conservation of the Environment (Environmental Science)
• Environmental Sustainability
• Environmentalist Thought and Ideology (Environmental Science)
• Management of Land and Natural Resources (Environmental Science)
• Natural Disasters (Environmental Science)
• Nuclear Issues (Environmental Science)
• Pollution and Threats to the Environment (Environmental Science)
• Social Impact of Environmental Issues (Environmental Science)
• History of Science and Technology
• Browse content in Materials Science
• Ceramics and Glasses
• Composite Materials
• Metals, Alloying, and Corrosion
• Nanotechnology
• Browse content in Mathematics
• Applied Mathematics
• Biomathematics and Statistics
• History of Mathematics
• Mathematical Education
• Mathematical Finance
• Mathematical Analysis
• Numerical and Computational Mathematics
• Probability and Statistics
• Pure Mathematics
• Browse content in Neuroscience
• Cognition and Behavioural Neuroscience
• Development of the Nervous System
• Disorders of the Nervous System
• History of Neuroscience
• Invertebrate Neurobiology
• Molecular and Cellular Systems
• Neuroendocrinology and Autonomic Nervous System
• Neuroscientific Techniques
• Sensory and Motor Systems
• Browse content in Physics
• Astronomy and Astrophysics
• Atomic, Molecular, and Optical Physics
• Biological and Medical Physics
• Classical Mechanics
• Computational Physics
• Condensed Matter Physics
• Electromagnetism, Optics, and Acoustics
• History of Physics
• Mathematical and Statistical Physics
• Measurement Science
• Nuclear Physics
• Particles and Fields
• Plasma Physics
• Quantum Physics
• Relativity and Gravitation
• Semiconductor and Mesoscopic Physics
• Browse content in Psychology
• Affective Sciences
• Clinical Psychology
• Cognitive Psychology
• Cognitive Neuroscience
• Criminal and Forensic Psychology
• Developmental Psychology
• Educational Psychology
• Evolutionary Psychology
• Health Psychology
• History and Systems in Psychology
• Music Psychology
• Neuropsychology
• Organizational Psychology
• Psychological Assessment and Testing
• Psychology of Human-Technology Interaction
• Psychology Professional Development and Training
• Research Methods in Psychology
• Social Psychology
• Browse content in Social Sciences
• Browse content in Anthropology
• Anthropology of Religion
• Human Evolution
• Medical Anthropology
• Physical Anthropology
• Regional Anthropology
• Social and Cultural Anthropology
• Theory and Practice of Anthropology
• Browse content in Business and Management
• Business Strategy
• Business Ethics
• Business History
• Business and Government
• Business and Technology
• Business and the Environment
• Comparative Management
• Corporate Governance
• Corporate Social Responsibility
• Entrepreneurship
• Health Management
• Human Resource Management
• Industrial and Employment Relations
• Industry Studies
• Information and Communication Technologies
• International Business
• Knowledge Management
• Management and Management Techniques
• Operations Management
• Organizational Theory and Behaviour
• Pensions and Pension Management
• Public and Nonprofit Management
• Strategic Management
• Supply Chain Management
• Browse content in Criminology and Criminal Justice
• Criminal Justice
• Criminology
• Forms of Crime
• International and Comparative Criminology
• Youth Violence and Juvenile Justice
• Development Studies
• Browse content in Economics
• Agricultural, Environmental, and Natural Resource Economics
• Asian Economics
• Behavioural Finance
• Behavioural Economics and Neuroeconomics
• Econometrics and Mathematical Economics
• Economic Systems
• Economic History
• Economic Methodology
• Economic Development and Growth
• Financial Markets
• Financial Institutions and Services
• General Economics and Teaching
• Health, Education, and Welfare
• History of Economic Thought
• International Economics
• Labour and Demographic Economics
• Law and Economics
• Macroeconomics and Monetary Economics
• Microeconomics
• Public Economics
• Urban, Rural, and Regional Economics
• Welfare Economics
• Browse content in Education
• Adult Education and Continuous Learning
• Care and Counselling of Students
• Early Childhood and Elementary Education
• Educational Equipment and Technology
• Educational Strategies and Policy
• Higher and Further Education
• Organization and Management of Education
• Philosophy and Theory of Education
• Schools Studies
• Secondary Education
• Teaching of a Specific Subject
• Teaching of Specific Groups and Special Educational Needs
• Teaching Skills and Techniques
• Browse content in Environment
• Applied Ecology (Social Science)
• Climate Change
• Conservation of the Environment (Social Science)
• Environmentalist Thought and Ideology (Social Science)
• Natural Disasters (Environment)
• Social Impact of Environmental Issues (Social Science)
• Browse content in Human Geography
• Cultural Geography
• Economic Geography
• Political Geography
• Browse content in Interdisciplinary Studies
• Communication Studies
• Museums, Libraries, and Information Sciences
• Browse content in Politics
• African Politics
• Asian Politics
• Chinese Politics
• Comparative Politics
• Conflict Politics
• Elections and Electoral Studies
• Environmental Politics
• European Union
• Foreign Policy
• Gender and Politics
• Human Rights and Politics
• Indian Politics
• International Relations
• International Organization (Politics)
• International Political Economy
• Irish Politics
• Latin American Politics
• Middle Eastern Politics
• Political Methodology
• Political Communication
• Political Philosophy
• Political Sociology
• Political Behaviour
• Political Economy
• Political Institutions
• Political Theory
• Politics and Law
• Public Administration
• Public Policy
• Quantitative Political Methodology
• Regional Political Studies
• Russian Politics
• Security Studies
• State and Local Government
• UK Politics
• US Politics
• Browse content in Regional and Area Studies
• African Studies
• Asian Studies
• East Asian Studies
• Japanese Studies
• Latin American Studies
• Middle Eastern Studies
• Native American Studies
• Scottish Studies
• Browse content in Research and Information
• Research Methods
• Browse content in Social Work
• Addictions and Substance Misuse
• Adoption and Fostering
• Care of the Elderly
• Child and Adolescent Social Work
• Couple and Family Social Work
• Developmental and Physical Disabilities Social Work
• Direct Practice and Clinical Social Work
• Emergency Services
• Human Behaviour and the Social Environment
• International and Global Issues in Social Work
• Mental and Behavioural Health
• Social Justice and Human Rights
• Social Policy and Advocacy
• Social Work and Crime and Justice
• Social Work Macro Practice
• Social Work Practice Settings
• Social Work Research and Evidence-based Practice
• Welfare and Benefit Systems
• Browse content in Sociology
• Childhood Studies
• Community Development
• Comparative and Historical Sociology
• Economic Sociology
• Gender and Sexuality
• Gerontology and Ageing
• Health, Illness, and Medicine
• Marriage and the Family
• Migration Studies
• Occupations, Professions, and Work
• Organizations
• Population and Demography
• Race and Ethnicity
• Social Theory
• Social Movements and Social Change
• Social Research and Statistics
• Social Stratification, Inequality, and Mobility
• Sociology of Religion
• Sociology of Education
• Sport and Leisure
• Urban and Rural Studies
• Browse content in Warfare and Defence
• Defence Strategy, Planning, and Research
• Land Forces and Warfare
• Military Administration
• Military Life and Institutions
• Naval Forces and Warfare
• Other Warfare and Defence Issues
• Peace Studies and Conflict Resolution
• Weapons and Equipment

• < Previous chapter
• Next chapter >

5 Farewell to ‘Legal Positivism’: The Separation Thesis Unravelling

• Published: June 1999
• Cite Icon Cite
• Permissions Icon Permissions

H. L. A Hart complained about the ambiguity of legal positivism, and proposed a definition that refers to particular explications of the concept of law, to certain theories of legal interpretation, to particular views on the moral problem of a duty to obey the law, and to a sceptical position with regard to the meta-ethical issue of the possibility of moral knowledge. It is said to be restricted to the Thesis of Separation — the contention that there is no necessary connection between law and morals. In this chapter, the Separation Thesis is discussed even further, and has three shortcomings identified: first, that it has been vacillating between object-level contentions about moral qualities of the law; that the precise logical relation between both levels has never been properly accounted for; and that the question of necessary relations between morality and law hinges crucially on the presupposition that the very concept of law itself does not unravel into different sets of convenient stipulations from different epistemological angles, each of which renders the question of such necessary relations trivial. The Separation Thesis is also identified as having two versions: the Fallibility Law and the Neutrality Law.

Signed in as

Institutional accounts.

• Google Scholar Indexing
• GoogleCrawler [DO NOT DELETE]

Personal account

• Sign in with email/username & password
• Get email alerts
• Save searches
• Purchase content
• Activate your purchase/trial code

Institutional access

• Sign in with a library card Sign in with username/password Recommend to your librarian
• Institutional account management
• Get help with access

Access to content on Oxford Academic is often provided through institutional subscriptions and purchases. If you are a member of an institution with an active account, you may be able to access content in one of the following ways:

IP based access

Typically, access is provided across an institutional network to a range of IP addresses. This authentication occurs automatically, and it is not possible to sign out of an IP authenticated account.

Sign in through your institution

Choose this option to get remote access when outside your institution. Shibboleth/Open Athens technology is used to provide single sign-on between your institution’s website and Oxford Academic.

• Click Sign in through your institution.
• Select your institution from the list provided, which will take you to your institution's website to sign in.
• When on the institution site, please use the credentials provided by your institution. Do not use an Oxford Academic personal account.
• Following successful sign in, you will be returned to Oxford Academic.

If your institution is not listed or you cannot sign in to your institution’s website, please contact your librarian or administrator.

Sign in with a library card

Enter your library card number to sign in. If you cannot sign in, please contact your librarian.

Society Members

Society member access to a journal is achieved in one of the following ways:

Sign in through society site

Many societies offer single sign-on between the society website and Oxford Academic. If you see ‘Sign in through society site’ in the sign in pane within a journal:

• Click Sign in through society site.
• When on the society site, please use the credentials provided by that society. Do not use an Oxford Academic personal account.

If you do not have a society account or have forgotten your username or password, please contact your society.

Sign in using a personal account

Some societies use Oxford Academic personal accounts to provide access to their members. See below.

A personal account can be used to get email alerts, save searches, purchase content, and activate subscriptions.

Some societies use Oxford Academic personal accounts to provide access to their members.

Viewing your signed in accounts

Click the account icon in the top right to:

• View your signed in personal account and access account management features.
• View the institutional accounts that are providing access.

Signed in but can't access content

Oxford Academic is home to a wide variety of products. The institutional subscription may not cover the content that you are trying to access. If you believe you should have access to that content, please contact your librarian.

For librarians and administrators, your personal account also provides access to institutional account management. Here you will find options to view and activate subscriptions, manage institutional settings and access options, access usage statistics, and more.

Our books are available by subscription or purchase to libraries and institutions.

• About Oxford Academic
• Publish journals with us
• University press partners
• What we publish
• New features  
• Open access
• Rights and permissions
• Accessibility
• Advertising
• Media enquiries
• Oxford University Press
• Oxford Languages
• University of Oxford

Oxford University Press is a department of the University of Oxford. It furthers the University's objective of excellence in research, scholarship, and education by publishing worldwide

• Copyright © 2024 Oxford University Press
• Cookie settings
• Cookie policy
• Privacy policy
• Legal notice

This Feature Is Available To Subscribers Only

Sign In or Create an Account

This PDF is available to Subscribers Only

For full access to this pdf, sign in to an existing account, or purchase an annual subscription.

• Table of Contents
• Random Entry
• Chronological
• Editorial Information
• About the SEP
• Editorial Board
• How to Cite the SEP
• Special Characters
• Advanced Tools
• Support the SEP
• PDFs for SEP Friends
• Make a Donation
• SEPIA for Libraries
• Entry Contents

Bibliography

Academic tools.

• Friends PDF Preview
• Author and Citation Info
• Back to Top

Legal Positivism

Legal positivism is the thesis that the existence and content of law depends on social facts and not on its merits. The English jurist John Austin (1790–1859) formulated it thus:

The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry. (1832 [1995: 157])

The positivist thesis does not say that law’s merits are unintelligible, unimportant, or peripheral to the philosophy of law. It says that they do not determine whether laws or legal systems exist . Whether a society has a legal system depends on the presence of certain structures of governance, not on the extent to which it satisfies ideals of justice, democracy, or the rule of law. What laws are in force in that system depends on what social standards its officials recognize as authoritative; for example, legislative enactments, judicial decisions, or social customs. The fact that a policy would be just, wise, efficient, or prudent is never sufficient reason for thinking that it is actually the law, and the fact that it is unjust, unwise, inefficient or imprudent is never sufficient reason for doubting it. According to positivism, law is a matter of what has been posited (ordered, decided, practiced, tolerated, etc.). Austin thought the thesis “simple and glaring”. While it is probably the dominant view among analytically inclined philosophers of law, it is also the subject of competing interpretations together with persistent criticisms and misunderstandings.

1. Development and Influence

2. the existence and sources of law, 3. moral principles and the boundaries of law, 4.1 the fallibility thesis, 4.2 the separability thesis, 4.3 the neutrality thesis, other internet resources, related entries.

Legal positivism has a long history and a broad influence. It has antecedents in ancient political philosophy and is discussed, and the term itself introduced, in mediaeval legal and political thought (see Finnis 1996). The modern doctrine, however, owes little to these forbears. Its most important roots lie in the political philosophies of Hobbes and Hume, and its first full elaboration is due to Jeremy Bentham (1748–1832) whose account Austin adopted, modified, and popularized. For much of the next century an amalgam of their views, according to which law is the command of a sovereign backed by force, dominated English philosophical reflection about law. By the mid-twentieth century, however, this account had lost its influence among working legal philosophers. Its emphasis on legislative institutions was replaced by a focus on law-applying institutions such as courts, and its insistence of the role of coercive force gave way to theories emphasizing the systematic and normative character of law. The most important architects of contemporary legal positivism are the Austrian jurist Hans Kelsen (1881–1973) and the two dominating figures in the analytic philosophy of law, H.L.A. Hart (1907–92) and Joseph Raz, among whom there are clear lines of influence, but also important contrasts. Legal positivism’s importance, however, is not confined to the philosophy of law. It can be seen throughout social theory, particularly in the works of Marx, Weber, and Durkheim, and also among many lawyers, including the American “legal realists” and most contemporary feminist scholars. Although they disagree on many other points, these writers all acknowledge that law is essentially a matter of social fact. Some of them are, it is true, uncomfortable with the label “legal positivism” and therefore hope to escape it. Their discomfort is sometimes the product of confusion. Lawyers often use “positivist” abusively, to condemn a formalistic doctrine according to which law is always clear and, however pointless or wrong, is to be rigorously applied by officials and obeyed by subjects. It is doubtful that anyone ever held this view, but it is in any case false and has nothing to do with legal positivism. Among the philosophically literate another, more intelligible, misunderstanding may interfere. Legal positivism is here sometimes associated with the homonymic but independent doctrines of logical positivism (the meaning of a sentence is its mode of verification) or sociological positivism (social phenomena can be studied only through the methods of natural science). While there are historical connections and commonalities of temper among these ideas, they are essentially different. The view that the existence and content of law depends ultimately on social facts does not rest on a particular semantic thesis, and it is compatible with a range of theories about how one investigates the social world, including non-naturalistic accounts. To say that the existence of law depends on facts and not on its merits is a thesis about the relation among laws, facts, and merits, and not otherwise a thesis about the individual relata. Hence, many traditional “natural law” moral doctrines—including the belief in a universal, objective morality grounded in human nature—do not contradict legal positivism. The only influential positivist moral theories are the views that moral norms are valid only if they have a source in divine commands or in social conventions. Such theists and relativists apply to morality the constraints that legal positivists think hold for law.

Every human society has some form of social order, some way of marking and encouraging approved behavior, deterring disapproved behavior, and resolving disputes about that behavior. What then is distinctive of societies with legal systems and, within those societies, of their law? Before exploring some positivist answers, it bears emphasizing that these are not the only questions worth asking about law. While an understanding of the nature of law requires an account of what makes law distinctive, it also requires an understanding of what it has in common with other forms of social control. Some Marxists are positivists about the nature of law while insisting that its distinguishing characteristics matter less than its role in replicating and facilitating other forms of domination. (Though other Marxists disagree: see Pashukanis 1924). They think that the specific nature of law casts little light on their primary concerns. But one can hardly know that in advance; it depends on what the nature of law is.

For Bentham and Austin, law is a phenomenon of societies with a sovereign : a determinate person or group who have supreme and absolute de facto power—they are obeyed by all or most others but do not themselves similarly obey anyone else. The laws in that society are a subset of the sovereign’s commands : general orders that apply to classes of actions and people and that are backed up by threat of force or “sanction”. This imperatival theory is positivist, for it identifies the existence of law with patterns of command and obedience that can be ascertained without considering whether the sovereign has a moral right to rule or whether their commands are meritorious. It has two other distinctive features. The theory is monistic : it represents all laws as having a single form, imposing obligations on their subjects, though not on the sovereign itself. The imperativalist acknowledges that ultimate legislative power may be self-limiting, or limited externally by what public opinion will tolerate, and also that legal systems contain provisions that are not imperatives (for example, permissions, definitions, and so on). But they regard these as part of the non-legal material that is necessary for every legal system. (Austin is a bit more liberal on this point). The theory is also reductivist , for it maintains that the normative language used in describing and stating the law—talk of authority, rights, obligations, and so on—can all be analyzed without remainder in factual terms, typically as concatenations of statements about power and obedience.

Imperatival theories are now without influence in legal philosophy (but see Ladenson 1980 and Morison 1982). What survives of their outlook is the idea that legal theory must ultimately be rooted in some account of the political system, an insight that came to be shared by all major positivists save Kelsen. Their particular conception of a society under a sovereign commander, however, is friendless (except among Foucauldians, who strangely take this relic as the ideal-type of what they call “juridical” power). It is clear that in complex societies there may be no one who has all the attributes of sovereignty, for ultimate authority may be divided among organs and may itself be limited by law. Moreover, sovereignty is a normative concept. A legislator is one who has authority to make laws, and not merely someone with great social power, and it is doubtful that “habits of obedience” is a candidate reduction for explaining authority. To distinguish genuine obedience from coincidental compliance we need something like the idea of subjects being oriented to, or guided by, the commands. Explicating this will carry us far from the power-based notions with which classical positivism hoped to work. The imperativalists’ account of the character of individual laws is also subject to decisive objections (Hart 1961 [2012: 26–78]; and Hacker 1973). Treating all laws as commands conceals important differences in their social functions, in the ways they operate in practical reasoning, and in the sort of justifications to which they are liable. For instance, laws conferring the power to marry command nothing; they do not obligate people to marry, or even to marry according to the prescribed formalities. Nor is reductivism any more plausible here: we speak of legal obligations when there is no probability of sanctions being applied and when there is no provision for sanctions (as in the duty of courts to apply the law). Moreover, we take the existence of legal obligations to be a reason for imposing sanctions, not a consequence or constituent of it.

Hans Kelsen retains the imperativalists’ monism but abandons their reductivism. On his view, law is characterized by a singular form and basic norm . The form of every law is that of a conditional order, directed at the courts, to apply sanctions if a certain behavior (the “delict”) is performed. On this view, law is an indirect system of guidance: it does not tell subjects what to do; it tells officials what to do to its subjects under certain conditions. Thus, what we ordinarily regard as the legal duty not to steal is for Kelsen merely a logical correlate of the primary norm which stipulates a sanction for stealing (1945 [1961: 61]). The objections to imperatival monism apply also to this more sophisticated version: the reduction misses important facts, such as the point of having a prohibition on theft; the law is not indifferent between, on the one hand, people not stealing and, on the other, stealing and suffering the sanctions. But in one respect the conditional sanction theory is in worse shape than is imperativalism, for it has no way to fix on the delict as the duty-defining condition of the sanction—that is but one of a large number of relevant antecedent conditions, including the legal capacity of the offender, the jurisdiction of the judge, the constitutionality of the offense, and so forth. Which among all these is the content of a legal duty?

Kelsen’s most important contribution lies in his attack on reductivism and his doctrine of the “basic norm”. He maintains that law is a normative domain and must understood as such. Might does not make right—not even legal right—so the philosophy of law must explain the fact that law imposes obligations on its subjects. Moreover, law is a normative system : “Law is not, as it is sometimes said, a rule. It is a set of rules having the kind of unity we understand by a system” (1945 [1961: 3]). For the imperativalists, the unity of a legal system consists in the fact that all its laws are commanded by one sovereign. For Kelsen, it consists in the fact that they are all links in one chain of authority. For example, a by-law is legally valid because it is created by a corporation lawfully exercising the powers conferred on it by the legislature, which confers those powers in a manner provided by the constitution, which was itself created in a way provided by an earlier constitution. But what about the very first constitution, historically speaking? Its authority, says Kelsen, is “presupposed”. The condition for interpreting any legal norm as binding is that the first constitution is validated by the following “basic norm:” “ the original constitution is to be obeyed ”. Now, the basic norm cannot be a legal norm—we cannot explain the bindingness of law by reference to more law without an infinite regress. Nor can it be a social fact, for Kelsen maintains that the reason for the validity of a norm must always be another norm—no ought from is. It follows, then, that a legal system must consist of norms all the way down. It bottoms in a hypothetical, transcendental norm that is the condition of the intelligibility of any (and all) other norms as binding. To “presuppose” this basic norm is not to endorse it as good or just—presupposition is a cognitive stance only—but it is, Kelsen thinks, the necessary precondition for a non-reductivist account of law as a normative system.

There are many difficulties with this, not least of which is the fact that if we are going to accept the basic norm as the solution it is not clear what we thought was the problem in the first place. One cannot say both that presupposing the basic norm is what validates all inferior norms and also that an inferior norm is part of the legal system only if it is connected by a chain of validity to the basic norm. We need a way into the circle. Moreover, it draws the boundaries of legal systems incorrectly. The Canadian Constitution of 1982 was lawfully created by an Act of the U.K. Parliament, and on that basis Canadian law and English law should be parts of a single legal system, rooted in one basic norm: “The (first) U.K. constitution is to be obeyed”. Yet English law is not binding in Canada, and a purported repeal of the Constitution Act by the U.K. would be without legal effect there.

If law cannot ultimately be grounded in force, or in a presupposed norm, on what does its authority rest? The most influential solution is perhaps H.L.A. Hart’s. His solution resembles Kelsen’s in its emphasis on the normative foundations of legal systems, but Hart rejects Kelsen’s transcendentalist, Kantian view of authority in favor of an empirical, Weberian one. For Hart, the authority of law is social. The ultimate criterion of validity in a legal system is neither a legal norm nor a presupposed norm, but a social rule that exists only because it is actually practiced, that is, used to guide conduct. Law ultimately rests on custom: customs about who shall have the authority to decide disputes, what they shall treat as binding reasons for decision, i.e., as sources of law, and how laws may be changed. Of these three “secondary rules”, as Hart calls them, the source-determining rule of recognition is most important, for it specifies the ultimate criteria of validity in the legal system. It exists only because it is practiced by officials, and it is not only that the recognition rule best explains their practice, it is the rule to which they actually appeal in arguments about what standards they are bound to apply. Hart’s account is therefore in one sense conventionalist (see Marmor 1998 and Coleman 2001): ultimate legal rules are social norms, although they are neither the product of express agreement nor conventions in the Schelling-Lewis sense (see Green 1999). Thus for Hart too the legal system is rule-based all the way down, but at its root is a social norm that has the kind of normative force that customs have. It is a regularity of behavior regarding which officials take “the internal point of view:” they use it as a standard for guiding and evaluating their own and others’ behavior, and this use is displayed in their conduct and speech, including the resort to various forms of social pressure to support the rule and the ready application of normative terms such as “duty” and “obligation” when invoking it.

Law, then, has its ultimate basis in the behaviors and attitudes of its officials. In the eyes of some this still seems to imply a mystifying reduction: how can we generate the oughts of the legal world from the is of official consensus? Concerns of this type part motivate Scott Shapiro’s understanding of law and his attempt to break with Hart’s theory: laws, he suggests, should be conceived of as “generalized plans, or planlike norms, issued by those who are authorized to plan for others” (2011: 155). Understanding law on the model of social planning, Shapiro suggests, frees us from misplaced concerns about its metaphysical basis. Just as you or I can adopt a plan for our day just by willing it, so a legal system’s officials can create or recognize plans for its subjects. To the extent there remains an issue, however, it is not clear that the notion of planning itself offers any deeper explanation. To begin with, planning, whether by an individual or a group, involves setting rules with the aim of achieving certain ends. So the ontology of plans folds into and becomes part of the more general ontology of rules on which Hart was rightly focused. Second, it is unclear whether the mechanics of law are accurately captured under the label of planning (is the law against theft, for example, to be thought of as a plan that people not deprive others of their property?—a somewhat implausible reading of the relevant injunction—or is the planning element exhausted by the decision to create the prohibition, in which case the law is not the plan). Nonetheless, Shapiro’s account helpfully reminds us that the theoretical complexity of law as a social kind does not render implausible an understanding of its foundation based in the everyday actions of its agents. In this he joins Hart.

It is an important feature of Hart’s account that the rule of recognition is an official custom, and not a standard necessarily shared by the broader community. If the imperativalists’ picture of the political system was pyramidal power, Hart’s is more like Weber’s rational bureaucracy. Law is normally a technical enterprise, characterized by a division of labor. Ordinary subjects’ contribution to the existence of law may therefore amount to no more than passive compliance, and in an extreme case perhaps less than this. Thus, Hart’s necessary and sufficient conditions for the existence of a legal system are that

those rules of behavior which are valid according to the system’s ultimate criteria of validity must be generally obeyed, and…its rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behavior by its officials. (1961 [2012: 116])

And this division of labor is not a normatively neutral fact about law; it is politically charged, for it sets up the possibility of law becoming remote from the life of a society, a hazard to which Hart is acutely alert (1961 [2012: 117]; cf. Waldron 1999 and Green 2008).

Although Hart introduces the rule of recognition through a speculative anthropology of how it might emerge in response to deficiencies in a customary social order, he is not committed to the view that law is a cultural achievement. To the contrary, the idea that legal order is always a good thing, and that societies without it are deficient, is a familiar element of many anti -positivist views, beginning with Henry Maine’s criticism of Austin on the ground that his theory would not apply to certain Indian villages. The objection embraces the error it seeks to avoid. It imperialistically assumes that it is always a bad thing to lack law, and then makes a dazzling inference from ought to is: if it is good to have law, then each society must have it, and the concept of law must be adjusted to show that it does. If one thinks that law is a many splendored thing, one will be tempted by a very wide understanding of law, for it would seem improper to charge others with missing out. Positivism releases the harness. Law is a distinctive form of political order, not a moral achievement, and whether it is necessary or even useful depends entirely on its content and context. Societies without law may be perfectly adapted to their environments, missing nothing.

A positivist account of the existence and content of law, along any of the above lines, offers a theory of the validity of law in one of the two main senses of that term (see Harris 1979: 107–111). Kelsen says that validity is the specific mode of existence of a norm. In this sense a valid law is one that is systemically valid in the jurisdiction—it is part of the legal system, and identified as such by virtue of its dependence on the system’s social sources. The idea is distinct from that of validity as moral propriety, i.e., a sound justification for respecting the norm. For the legal positivist, this depends on the norm’s merits. One indication that these senses differ is that one may know that a society has a legal system, and know what its laws are, without having any idea whether they are morally justified. For example, one may know that the law of ancient Athens included the punishment of ostracism without knowing whether it was justified, because one does not know enough about its effects, about the social context, and so forth.

No legal positivist argues that the systemic validity of law establishes its moral validity , i.e., that it should be obeyed by subjects or applied by judges. Even Hobbes, to whom this view is sometimes ascribed, required that law actually be able to keep the peace, failing which we owe it nothing. Bentham and Austin, as utilitarians, hold that such questions always turn on the consequences, and both acknowledge that disobedience is therefore sometimes fully justified. Kelsen insists that “The science of law does not prescribe that one ought to obey the commands of the creator of the constitution” (1960 [1967: 204]). Hart believes that law may generate a prima facie duty to obey, grounded in but also limited by fairness—so there is no obligation to unfair or pointless laws (Hart 1955: 185–186). Raz goes further still, arguing that there isn’t even a prima facie duty to obey the law, not even in a just state (Raz 1979 [2009: 233–249]). The peculiar accusation that positivists believe the law is always to be obeyed is without foundation. Indeed, Hart’s own view is that an overweening deference to law consorts more easily with theories that imbue it with moral ideals, permitting

an enormous overvaluation of the importance of the bare fact that a rule may be said to be a valid rule of law, as if this, once declared, was conclusive of the final moral question: “Ought this law to be obeyed?” (Hart 1958: 75)

The most influential criticisms of legal positivism all flow, in one way or another, from the suspicion that it fails to give morality its due. A theory that insists on the facticity of law seems to contribute little to our understanding that law has important functions in making human life go well, that the rule of law is a prized ideal, and that the language and practice of law is highly moralized. Accordingly, positivism’s critics maintain that the most important features of law are not to be found in its source-based character, but in law’s capacity to advance the common good, to secure human rights, or to govern with integrity.

It is beyond doubt that moral and political considerations bear on legal philosophy. As Finnis says, the reasons we have for establishing, maintaining or reforming law include moral reasons, and these reasons therefore shape our legal concepts (1980 [2011: 266–273] and 1996: 204). But which concepts? If one accepts, as Finnis does, that the existence and content of law can be identified without recourse to moral argument, and that “human law is artefact and artifice; and not a conclusion from moral premises” (1996: 205), it becomes hard to see how the natural law theory he develops rivals rather than accommodates the truth of legal positivism (see Gardner 2001, 225–227). This vitiates also Lon Fuller’s criticisms of Hart (Fuller 1958 and 1964). Fuller has two main points. First, he thinks that it isn’t enough for a legal system to rest on customary social rules, since law could not guide behavior without also being at least minimally clear, consistent, public, prospective and so on—that is, without exhibiting to some degree those virtues collectively called “the rule of law”. It suffices to note that this is consistent with law being source-based. Even if moral properties were identical with, or supervened upon, these rule-of-law properties, they do so in virtue of their rule-like character. Whatever virtues inhere in or follow from clear, consistent, prospective, and open practices can be found not only in law but in all other social practices with those features, including custom and positive morality. And such virtues, if they exist, are minor: there is little, if anything, to be said in favor of a clear, consistent, prospective, public and impartially administered system of racial segregation, for example. Fuller’s second worry is that if law is a matter of fact, then we are without an explanation of the duty to obey. He asks how “an amoral datum called law could have the peculiar quality of creating an obligation to obey it” (Fuller 1958: 656). One possibility he neglects is that it doesn’t. But even if Fuller is right in his unargued assumption, the “peculiar quality” whose existence he doubts is a familiar feature of many practices. Compare promises: whether a society has a practice of promising, and what someone has promised to do, are matters of social fact. Yet promising creates moral obligations of performance or compensation. An “amoral datum” may indeed figure, together with other premises, in a sound argument to moral conclusions.

While Finnis and Fuller’s views are thus compatible with the positivist thesis, the same cannot be said of Ronald Dworkin’s important works (Dworkin 1978, 1986 and 2011). Positivism’s most influential critic rejects the theory on every conceivable level. He denies that there can be any general theory of the existence and content of law; he denies that local theories of particular legal systems can identify law without recourse to its merits, and he rejects the whole institutional focus of positivism. A theory of law is for Dworkin a theory of how cases ought to be decided and it begins, not with an account of political organization, but with an abstract ideal regulating the conditions under which governments may use coercive force over their subjects. Coercion must not be deployed, he claims,

except as licensed or required by individual rights and responsibilities flowing from past political decisions about when collective force is justified. (Dworkin 1986: 93)

A society has a legal system only when, and to the extent that, it honors this ideal, and its law is the set of all considerations that the courts of such a society would be morally justified in applying, whether or not those considerations are determined by any source. To identify the law of a given society we must always engage in moral and political argument, for the law is whatever requirements are consistent with an interpretation of its legal practices that shows them to be best justified in light of this animating ideal. In addition to these philosophical considerations, Dworkin invokes two features of the phenomenology of judging, as he sees it. He finds deep controversy among lawyers and judges about how important cases should be decided, and he finds diversity in the considerations that they hold relevant to deciding them. The controversy suggests to him that law cannot rest on an official consensus, and the diversity suggests that there is no single social rule that validates all relevant reasons, moral and non-moral, for judicial decisions.

Dworkin’s rich and complex arguments attracted various lines of reply from positivists. One response denies the relevance of the phenomenological claims. Controversy is a matter of degree, and a consensus-defeating amount of it is not proved by the existence of adversarial argument in the high courts, or indeed in any courts. As important is the broad range of settled law that gives rise to few doubts and which guides social life outside the courtroom (see Leiter 2009). As for the diversity argument, so far from being a refutation of positivism, this is an entailment of it. Positivism identifies law, not with all valid reasons for decision, but only with the source-based subset of them. It is no part of the positivist claim that the rule of recognition tells us how to decide cases, or even identifies all relevant reasons for a decision. Positivists accept that moral, political or economic considerations are properly operative in legal decisions, just as linguistic or logical ones are. Modus ponens holds in court as much as outside, but not because it was enacted by the legislature or decided by the judges, and the fact that there is no social rule that validates both modus ponens and also the Municipalities Act is true but irrelevant. The authority of principles of logic (or morality) is not something to be explained by legal philosophy; the authority of acts of Parliament must be; and accounting for the difference is a central task of the philosophy of law.

Other positivists respond differently to Dworkin’s phenomenological points, accepting their relevance but modifying the theory to accommodate them. So-called “inclusive positivists” (e.g., Soper, Lyons, Coleman, Waluchow (to whom the term is due), Kramer and Himma) argue that the merit-based considerations may indeed be part of the law, if they are explicitly or implicitly made so by source-based considerations. For example, Canada’s constitution explicitly authorizes for breach of Charter rights, “such remedy as the court considers appropriate and just in the circumstances”. In determining which remedies might be legally valid, judges are thus expressly told to take into account their morality. And judges may develop a settled practice of doing this whether or not it is required by any enactment; it may become customary practice in certain types of cases. Reference to moral principles may be implicit in the web of judge-made law, for instance in the common law principle that no one should profit from his own wrongdoing. Such moral considerations, inclusivists claim, are part of the law because the sources make them so , and thus Dworkin is right that the existence and content of law might turn on its merits, and wrong only in his explanation of this fact. Legal validity depends on morality, not because of the interpretative consequences of some ideal about how the government may use force, but because that is one of the things that may be customarily recognized as an ultimate determinant of legal validity. It is the sources that make the merits relevant.

To understand and assess this response some clarifications are needed. First, it is not plausible to hold that the merits are relevant to a judicial decision only when the sources make them so. It would be odd to think that justice is a reason for decision only because some source directs an official to decide justly. It is of the nature of justice that it properly bears on certain controversies. In legal decisions, especially important ones, moral and political considerations are present of their own authority; they do not need sources to propel them into action. On the contrary, we expect to see a source—a statute, a decision, or a convention—when judges are constrained not to appeal directly to the merits (see Raz 2004a). Second, the fact that there is moral language in judicial decisions does not establish the presence of moral tests for law, for sources come in various guises. What sounds like moral reasoning in the courts is sometimes really source-based reasoning. For example, when the Supreme Court of Canada says that a publication is criminally “obscene” only if it is harmful, it is not applying J.S. Mill’s harm principle, for what that court means by “harmful” is that which is regarded by the community as degrading or intolerable. That is a source-based test, not a moral one. This is just one of many appeals to positive morality, i.e., to the moral customs actually practiced by a given society, and no positivist denies that positive morality may be a source of law. Moreover, it is important to remember that law is dynamic and that even a decision that does apply morality itself becomes a source of law, in the first instance for the parties and possibly for others as well. Over time, by the doctrine of precedent where it exists or through the gradual emergence of an interpretative convention where it does not, this gives a factual edge to normative terms. Thus, if a court decides that money damages are in some instances not a “just remedy” then this fact will join with others in fixing what “justice” means for these purposes. This process may ultimately detach legal concepts from their moral analogs (thus, legal “murder” may require no intention to kill, legal “fault” no moral blameworthiness, an “equitable” remedy may be manifestly unfair, etc.). Bearing in mind these complications, however, there undeniably remains a great deal of moral reasoning in adjudication. Courts are often called on to decide what would reasonable, fair, just, cruel, etc. by explicit or implicit requirement of statute or common law, or because this is the only proper or intelligible way to decide. When the law itself licenses such reasoning should we understand it, with the inclusive positivist, to incorporate moral standards, or, as per the views of their rival, the exclusive positivist, only to make reference to moral principles?

Exclusive positivists offer two main arguments for stopping at social sources. The first is due to Raz (1994: 201–37) and has to do with law’s role in practical reasoning (for criticism see Perry 1989, Waluchow 1994, Coleman 2001, Dworkin 2002, Kramer 2004 and Himma 2019). Although law does not necessarily have legitimate authority, Raz suggests it lays claim to it, and can intelligibly do so only if it is the kind of thing that could have legitimate authority. It may fail, therefore, in certain ways only, for example, by being unjust, pointless, or ineffective. But law cannot fail to be a candidate authority, for it is constituted in that role by our political practices. According to Raz, practical authorities mediate between subjects and the ultimate reasons for which they should act. Authorities’ directives should be based on such reasons, and they are justified only when compliance with the directives makes it more likely that people will comply with the underlying reasons that apply to them. But they can do that , he suggests, only if is possible to know what the directives require independent of appeal to those underlying reasons. If law were to incorporate the moral standards to which it refers it would no longer be able to play this mediating role; identifying the law would require identifying the reasons underlying it. Because the nature of law is partly determined by its role in giving practical guidance, Raz concludes, there is theoretical reason for stopping at source-based considerations.

The second argument challenges an underlying idea of inclusive positivism, what we might call the Midas Principle. “Just as everything King Midas touched turned into gold, everything to which law refers becomes law …” (Kelsen 1945 [1961: 161]). Kelsen thought that it followed from this principle that

It is…possible for the legal order, 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 sources of law. (Kelsen 1945 [1961: 132])

(Though he regarded this transformation as effected by a sort of tacit legislation.) If sound, the Midas Principle holds in general and not only with respect to morality, as Kelsen makes clear. Suppose then that the Income Tax Act penalizes overdue accounts at 8% per annum. In a relevant case, an official can determine the content of a legal obligation only by calculating compound interest. Does this make mathematics part of the law? A contrary indication is that it is not subject to the rules of change in a legal system—neither courts nor legislators can repeal or amend the law of commutativity. The same holds of other social norms, including the norms of foreign legal systems. A conflict-of-laws rule may direct a Canadian judge to apply Mexican law in a Canadian case. The conflicts rule is obviously part of the Canadian legal system. But the rule of Mexican law is not, for although Canadian officials can decide whether or not to apply it, they can neither change it nor repeal it, and the best explanation for its existence and content makes no reference to Canadian society or its political system. In like manner, moral standards, logic, mathematics, principles of statistical inference, or English grammar, though all properly applied in cases, are not themselves the law, for legal organs have applicative but not creative power over them. The inclusivist thesis is actually groping towards an important, but different, truth. Law is an open normative system (Raz 1975 [1990: 152–154]): it adopts and enforces many other standards, including moral norms and the rules of social groups. There is no warrant for adopting the Midas Principle to explain how or why it does this.

As noted above, Dworkin’s arguments against positivism depend upon claims about the phenomenology of adjudication and about the constraints imposed on jurisprudence by legal disagreement. Mark Greenberg’s recent work takes as its starting point many of Dworkin’s claims, but his conclusions are in several ways more radical (see Greenberg 2004 and 2014). Greenberg’s central argument against positivism is methodological: no one, he suggests, would deny that the content of the law depends at least in part upon social facts. However, the question of which facts—the semantic content or intended effect of legislation, for example—cannot be answered by reference to further of the same: “law practices…cannot determine their own relevance” (2004: 185). Appeal must therefore be made to other kinds of considerations—for Greenberg, considerations about the moral import of our social practices. It is positivism’s error to suggest that law could be practice-based all the way down. That the content of law depends upon social sources, however, is a truth borne out by law in general, as opposed to being established within local legal practices. There is a categorical difference between the validity of the sources thesis—a truth about law as a kind of social practice—and the claim that in the UK, for example, statute renders it is illegal to drive above 70 miles an hour on the motorway. In this way the former explains the latter without circularity, and without the need for appeal to morality.

4. Law and Its Merits

It may clarify the philosophical stakes in legal positivism by comparing it to a number of other theses with which it is sometimes wrongly identified, and not only by its opponents (see also Hart 1958, Füßer 1996, and Schauer 1996).

Law does not necessarily satisfy the conditions by which it is appropriately assessed (Lyons 1984: 63; Hart 1961 [2012: 185–186)]. Law should be just, but it may not be; it should promote the common good, but sometimes it doesn’t; it should protect moral rights, but it may fail miserably. This we may call the moral fallibility thesis. The thesis is correct, but it is not the exclusive property of positivism. Aquinas accepts it, Fuller accepts it, Finnis accepts it, and Dworkin accepts it. Only a crude misunderstanding of ideas like Aquinas’s claim that “an unjust law seems to be no law at all” might suggest the contrary. Law may have an essentially moral character and yet be morally deficient. Even if every law always does one kind of justice (formal justice; justice according to law), this does not entail that it does every kind of justice. Even if every law has a prima facie claim to be applied or obeyed, it does not follow that it has such a claim all things considered. The gap between these partial and conclusive judgments is all a natural law theory needs to accommodate the fallibility thesis. It is sometimes said that positivism gives a more secure grasp on the fallibility of law, for once we see that it is a social construction we will be less likely to accord it inappropriate deference and better prepared to engage in a clear-headed moral appraisal of the law. This claim appealed to several positivists, including Bentham and Hart. But while this might follow from the truth of positivism, it cannot provide an independent argument for it. If law has an essentially moral character then it is obfuscating, not clarifying, to describe it as a source-based structure of governance.

At one point, Hart identifies legal positivism with

the simple contention that it is no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have often done so. (1961 [2012: 185–186])

Many other philosophers, encouraged also by the title of Hart’s famous essay, “Positivism and the Separation of Law and Morals”, (1958) treat the theory as the denial that there is a necessary connection between law and morality—they must be in some sense “separable” even if not in fact separate (Coleman 1982). The separability thesis is generally construed so as to tolerate any contingent connection between morality and law, provided only that it is conceivable that the connection might fail. Thus, the separability thesis is consistent with all of the following: (i) moral principles may be part of the law; (ii) law is usually, or even always in fact, valuable; (iii) the best explanation for the content of a society’s laws includes reference to the moral ideals current in that society; and (iv) a legal system cannot survive unless it is seen to be, and thus in some measure actually is, just. All four claims are counted by the separability thesis as contingent connections only; they do not hold of all possible legal systems—they probably don’t even hold of all historical legal systems. As merely contingent truths, it is said that they do not affect the concept of law itself. If we think of the positivist thesis this way, we might interpret the difference between exclusive and inclusive positivism in terms of the scope of the modal operator:

• (EP) It is necessarily the case that there is no connection between law and morality.
• (IP) It is not necessarily the case that there is a connection between law and morality.

In reality, however, legal positivism is not to be identified with either thesis: both are false. There are many necessary “connections”, trivial and non-trivial, between law and morality. As John Gardner notes, legal positivism takes a position on only one of them; it rejects any dependence of the existence of law on its merits (Gardner 2001). And with respect to this dependency relation, legal positivists are concerned with much more than the relationship between law and morality , for in the only sense in which they insist on a separation of law and morals they must insist also—and for the same reasons—on a separation of law and economics.

To exclude this dependency relation, however, is to leave intact many other interesting possibilities. For instance, it is possible that moral value derives from the existence of law (Raz 1975 [1990: 165–170]). If Hobbes is right, any order is better than chaos and in some circumstances order may be achievable only through positive law. Or perhaps in a Hegelian way every existing legal system expresses deliberate governance in a world otherwise dominated by chance; law is the spirit of the community come to self-consciousness. Notice that these claims are consistent with the fallibility thesis, for they do not deny that these supposedly good things might also bring evils, such as too much order or the will to power. Perhaps such derivative connections between law and morality are thought innocuous on the ground that they show more about human nature than they do about the nature of law. The same cannot be said of the following necessary connections between law and morality, each of which goes to the heart of our concept of law (on which see further Green 2008):

• (1) Necessarily, law deals with moral matters.

Kelsen writes,

Just as natural and positive law govern the same subject-matter, and relate, therefore, to the same norm-object, namely the mutual relationships of men—so both also have in common the universal form of this governance, namely obligation . (Kelsen 1928 [1973: 34])

This is a matter of the content of all legal systems. Where there is law there is also morality, and they regulate the same matters by analogous techniques. Of course to say that law deals with morality’s subject matter is not to say that it does so well, and to say that all legal systems create obligations is not to endorse the duties so created. This notion is distinct from Hart’s “minimum content” thesis according to which there are basic rules governing violence, property, fidelity, and kinship that any legal system must encompass if it aims at the survival of social creatures like ourselves (Hart 1961 [2012: 193–200]). Hart regards this as a matter of “natural necessity” and in that measure is willing to qualify his endorsement of the separability thesis. But even a society that prefers national glory or the worship of gods to survival will charge its legal system with the same tasks its morality pursues. Unlike the rules of a health club, law has broad scope and reaches to the most important things in any society, whatever they may be. Indeed, our most urgent political worries about law and its claims flow from just this capacity to regulate our most vital interests, and law’s wide reach must figure in any argument about its legitimacy. (A distinct argument, developed most fully by Raz (1994) and Gardner (2012a), is that law not only occupies itself with moral matters but makes moral claims over us. For criticism see Kramer 1999: 83–9; Duarte d’Almeida and Edwards 2014.)

• (2) Necessarily, law is justice-apt.

In view of the normative function of law in creating and enforcing obligations and rights, it always makes sense to ask whether law is just, and where it is found deficient to demand reform. Legal systems are therefore the kind of thing that is apt for appraisal as just or unjust. This is a significant feature of law. Not all human practices are justice-apt. It makes no sense to ask whether a certain fugue is just or to demand that it become so. The musical standards of fugal excellence are pre-eminently internal—a good fugue is a good example of its genre; it should be melodic, interesting, inventive etc.—and the further we get from these internal standards of excellence the more diverse evaluative judgments about it become. While some formalists flirt with similar ideas about law, this seems inconsistent with law’s place amongst human practices. Even if law has internal standards of merit—virtues uniquely its own that inhere in its law-like character—these cannot preclude or displace its assessment on independent criteria of justice. A fugue may be at its best when it has all the virtues of fugacity; but law is not best when it excels in legality; law must also be just. A society may therefore suffer not only from too little of the rule of law, but also from too much of it. This does not presuppose that justice is the only, or even the first, virtue of a legal system. It means that our concern for its justice as one of its virtues cannot be side lined by any claim of the sort that law’s purpose is to be law, to its most excellent degree. Law stands continuously exposed to demands for justification, and that too shapes its nature and role in our lives and culture.

• (3) Necessarily, law is morally risky.

It is a curious fact that almost all theories that insist on the essentially moral character of law take law’s character to be essentially good. The gravamen of Fuller’s philosophy is that law is essentially a moral enterprise, made possible only by a robust adherence to its own inner morality. The thought that the law might have an inner immorality never occurred to him. But, as Hart recognized, where there is “a union of primary and secondary rules”—that is to say, wherever there is law—moral risks emerge as a matter of necessity. There are not only newly efficient forms of oppression, unavailable in communities with more diffuse forms of social organization, there are also new vices: the possible alienation of community and value, the loss of transparency, the rise of a new hierarchy, and the possibility that some who should resist injustice may be bought off by the goods that legal order brings. Although law has its virtues, it also necessarily risks certain vices, and this marks a connection between law and morality of a reverse kind.

These three theses establish connections between law and morality that are both necessary and highly significant. Each of them is consistent with the positivist thesis that the existence and content of law depends on social facts, not on the law’s merits. Each of them contributes to an understanding of the nature of law. The once-popular idea that legal positivism insists on the separability of law and morality is therefore significantly mistaken.

The preceding theses together establish that law is not value-neutral. Although some lawyers regard this idea as a revelation (and others as provocation) it is in fact banal. The thought that law could be value neutral does not even rise to falsity—it is incoherent. Law is a normative system, promoting certain values and repressing others. Law is not neutral between victim and murderer or between owner and thief. When people complain of the law’s lack of neutrality, they are in fact voicing very different aspirations, such as the demand that it be fair, just, impartial, and so forth. A condition of law’s achieving any of these ideals is that it is not neutral in either its aims or its effects.

Positivism is however sometimes more credibly associated with the idea that legal philosophy is or should be value-neutral. Kelsen, for example, says, “the function of the science of law is not the evaluation of its subject, but its value-free description” (1960 [1967: 68]) and Hart at one point described his work as “descriptive sociology” (1961 [2012: v]). But a description of what? “Law” is an anthropocentric subject, dependent not merely on our sensory embodiment but also, as its necessary connections to morality show, on our moral sense and capacities. Legal kinds such as courts, decisions, and rules will not appear in a purely physical description of the universe and may not even appear in every social description. (This may limit the prospects for a “naturalized” jurisprudence; though for a defense of the contrary view, see Leiter 1997). Legal positivism, to be sure, is not an “evaluation of its subject”, i.e., an evaluation of the law . And to say that the existence of law depends on social facts does not commit one to thinking that it is a good thing that this is so (nor does it preclude it: see MacCormick 1985 and Campbell 1996). But it does not follow that legal philosophy therefore offers a “value-free description” of its subject. There is a sense, of course, in which every description is value-laden. It selects and systematizes only a subset of the infinite number of facts about its subject. To describe law as resting on customary social rules is to omit many other truths about it including, for example, truths about its connection to the demand for paper or silk. What forms the warrant for our prioritizing the former over the latter? Finnis (1980 [2011: 3–19]) thinks that the only possibility here has to do with the moral reasons we might have for wanting law (that we answer “what?” by answering “why?”) and that the failure of methodological positivism, the failure to achieve a value-free description of the subject, results in the failure of legal positivism. But the question of social significance is not exhausted by our moral register, and especially not only by its positive valence (on which see Dickson 2001). Others point to the notion of conceptual or metaphysical truth as setting the bounds of the question that positivism seeks to answer (for discussion see Raz 2004b). But however these difficult issues are to be resolved, we should not expect legal positivism itself to contribute much. A thesis about the nature of law is not at the same time a thesis about how to understand the nature of law.

It may seem, however, that legal positivism at least requires a stand on the so-called “fact-value” problem. There is no doubt that certain positivists, especially Kelsen, believe this to be so. In reality, positivism may cohabit with a range of views here—value statements may be entailed by factual statements; values may supervene on facts; values may be kinds of fact. Legal positivism requires only that it be in virtue of its facticity rather than its meritoriousness that something is law, and that we can describe that facticity without assessing its merits.

Evaluative argument is, of course, central to the philosophy of law more generally. No legal philosopher can be only a legal positivist. A complete understanding of law requires also an account of what kinds of things could possibly count as the merits of law (must law be efficient or elegant as well as just?); of what role law should play in adjudication (should valid law always be applied?); of what claim law has on our obedience (is there a duty to obey?); and also the more practical questions of what laws we should have and whether we should have law at all. Legal positivism does not aspire to answer these questions (although cf. Murphy 2014: 88–108 for the argument that the theory has important first-order implications for legal practice). Nonetheless, positivism’s claim that the existence and content of law depends only on social facts does give them shape.

• Austin, John, 1832 [1995], Austin: The Province of Jurisprudence Determined , Wilfrid E. Rumble (ed.), Cambridge: Cambridge University Press. doi:10.1017/CBO9780511521546
• Bentham, Jeremy, 1782 [1970], Of Laws in General , unpublished manuscript. Printed H.L.A. Hart (ed.), London: Athlone Press, 1970.
• Campbell, Tom, 1996, The Legal Theory of Ethical Positivism , Brookfield, VT: Dartmouth Pub. Co.
• Coleman, Jules L., 1982, “Negative and Positive Positivism”, The Journal of Legal Studies , 11(1): 139–164. doi:10.1086/467696
• –––, 2001, The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory , Oxford: Oxford University Press. doi:10.1093/acprof:oso/9780199264124.001.0001
• Dickson, Julie, 2001, Evaluation and Legal Theory , Oxford: Hart Publishing.
• Duarte d’Almeida, Luís and James Edwards, 2014, “Some Claims About Law’s Claims”, Law and Philosophy , 33(6): 725–746. doi:10.1007/s10982-013-9202-5
• Dworkin, Ronald, 1978, Taking Rights Seriously , Cambridge MA: Harvard University Press.
• –––, 1986, Law’s Empire , Cambridge MA: Harvard University Press.
• –––, 2002 [2006], “Thirty Years on: Review of The Practice of Principle: In Defense of a Pragmatist Approach to Legal Theory by Jules Coleman”, Harvard Law Review , 115(6): 1655–1687; reprinted in his Justice in Robes , Cambridge, MA: Harvard University Press, 2006. doi:10.2307/1342563
• –––, 2011, Justice for Hedgehogs , Cambridge MA: Harvard University Press.
• Finnis, John, 1980 [2011], Natural Law and Natural Rights , Oxford: Oxford University Press. Second edition, 2011.
• –––, 1996, “The Truth in Legal Positivism”, in George 1996: 195–214.
• Füßer, Klaus, 1996, “Farewell to ‘Legal Positivism’: The Separation Thesis Unravelling”, in George 1996: 119–162.
• Fuller, Lon L., 1958, “Positivism and Fidelity to Law: a Reply to Professor Hart”, Harvard Law Review , 71(4): 630–672. doi:10.2307/1338226
• –––, 1964, The Morality of Law , revised edition, New Haven, CT: Yale University Press.
• Gardner, John, 2001, “Legal Positivism: 5½ Myths”, The American Journal of Jurisprudence , 46(1): 199–227, doi:10.1093/ajj/46.1.199; reprinted in Gardner 2012b, 19–53.
• –––, 2012a, “How Law Claims, What Law Claims”, in Institutionalized Reason: The Jurisprudence of Robert Alexy , Matthias Klatt (ed.), Oxford: Oxford University Press; reprinted in Gardner 2012b, 125–148.
• –––, 2012b, Law as a Leap of Faith: Essays on Law in General , Oxford: Oxford University Press.
• George, Robert P. (ed.), 1996, The Autonomy of Law: Essays on Legal Positivism , Oxford: Clarendon Press. doi:10.1093/acprof:oso/9780198267904.001.0001
• Green, Leslie, 1999, “Positivism and Conventionalism”, Canadian Journal of Law & Jurisprudence , 12(1): 35–52. doi:10.1017/S0841820900002137
• –––, 2008, “Positivism and the Inseparability of Law and Morals”, New York University Law Review , 83(4): 1035–1058.
• Greenberg, Mark, 2004, “How Facts Make Law”, Legal Theory , 10(3): 157–198. doi:10.1017/S1352325204040212
• –––, 2014, “The Moral Impact Theory of Law”, Yale Law Journal , 123(5): 1288–1342.
• Hacker, P.M.S., 1973, “Sanction Theories of Duty”, in Oxford Essays in Jurisprudence: Second Series , A.W.B. Simpson (ed.), Oxford: Clarendon Press.
• Harris, J.W., 1979, Law and Legal Science. An Inquiry into the Concepts: “Legal Rule” and “Legal System” , Oxford: Clarendon Press.
• Hart, H. L. A., 1955, “Are There Any Natural Rights?”, The Philosophical Review , 64(2): 175–191. doi:10.2307/2182586
• –––, 1958, “Positivism and the Separation of Law and Morals”, Harvard Law Review , 71(4): 593–629; reprinted in his Essays in Jurisprudence and Philosophy , Oxford: Clarendon Press, 1983. doi:10.2307/1338225
• –––, 1961 [2012], The Concept of Law , Oxford: Clarendon Press. Third edition, 2012.
• Himma, Kenneth Einar, 2019, Morality and the Nature of Law , Oxford: Oxford University Press. doi:10.1093/oso/9780198723479.001.0001
• Kelsen, Hans, 1928 [1973], “The Idea of Natural Law”, Zeitschrift fü offentliches Recht , 7: 221–250; reprinted in his Essays in Legal and Moral Philosophy , Ota Weinberger (ed.), Peter Heath(trans.), Dordrecht: D. Reidel, 1973, 27–60. doi:10.1007/978-94-010-2653-6_2
• –––, 1945 [1961], General Theory of Law and State , Anders Wedberg (trans.), Cambridge, MA: Harvard University Press; reprinted, New York: Russell and Russell, 1961.
• –––, 1960 [1967], Reine Rechtslehre , Vienna: F. Deuticke; translated as Pure Theory of Law , Max Knight (trans.), Berkeley, CA: University of California Press.
• Kramer, Matthew H., 1999, In Defense of Legal Positivism: Law Without Trimmings , Oxford: Clarendon Press. doi:10.1093/acprof:oso/9780199264834.001.0001
• –––, 2004, Where Law and Morality Meet , Oxford: Oxford University Press. doi:10.1093/acprof:oso/9780199546138.001.0001
• Ladenson, Robert, 1980, “In Defense of a Hobbesian Conception of Law”, Philosophy & Public Affairs , 9(2): 134–159.
• Leiter, Brian, 1997 [2007], “Rethinking Legal Realism: Toward a Naturalized Jurisprudence”, Texas Law Review , 76: 267–315; reprinted in his Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy , Oxford: Oxford University Press, 2007.
• –––, 2009, “Explaining Theoretical Disagreement”, University of Chicago Law Review , 76: 1215–1250.
• Lyons, David, 1982, “Moral Aspects of Legal Theory”, Midwest Studies in Philosophy , 7: 223–254. doi:10.1111/j.1475-4975.1982.tb00093.x
• –––, 1984, Ethics and the Rule of Law , Cambridge: Cambridge University Press. doi:10.1017/CBO9780511608933
• MacCormick, Neil, 1985, “A Moralistic Case for A-Moralistic Law”, Valparaiso University Law Review , 20(1): 1–41.
• Marmor, Andrei, 1998, “Legal Conventionalism”, Legal Theory , 4(4): 509–531. doi:10.1017/S1352325200001129
• Morison, W. L., 1982, John Austin , Stanford, CA: Stanford University Press.
• Murphy, Liam, 2014, What Makes Law: An Introduction to the Philosophy of Law , Cambridge: Cambridge University Press. doi:10.1017/CBO9780511808425
• Pashukanis, Evgeny, 1924, Obshchaȋa teoriȋa prava i marksizm , translated, 1928, into German as Allgemeine Rechtslehre und Marxismus , Edith Hajós (trans.), Vienna: Verlag für Literatur und Politik; translated from the German as Law and Marxism: A General Theory , Barbara Einhorn (trans.), London: Pluto Press, 1983.
• Perry, Stephen, 1989, “Second Order Reasons, Uncertainty, and Legal Theory”, Southern California Law Review , 62: 913–994.
• Raz, Joseph, 1975 [1990], Practical Reason and Norms , London: Hutchinson. Second edition, Oxford: Oxford University Press, 1990.
• –––,1979 [2009], The Authority of Law , Oxford: Clarendon Press; second edition, 2009.
• –––, 1994, Ethics in the Public Domain: Essays in the Morality of Law and Politics , Oxford: Clarendon Press.
• –––, 2004a [2009], “Incorporation by Law”, Legal Theory , 10(1): 1–17; reprinted in Raz 2009: 182–202. doi:10.1017/S135232520400014X
• –––, 2004b [2009], “Can There Be a Theory of Law?”, in The Blackwell Guide to the Philosophy of Law and Legal Theory , Martin P. Golding and William A. Edmundson (eds.), Oxford, UK: Blackwell Publishing Ltd, 324–342; reprinted in Raz 2009: 17–46. doi:10.1002/9780470690116.ch23
• –––, 2009, Between Authority and Interpretation: On the Theory of Law and Practical Reason , Oxford: Oxford University Press. doi:10.1093/acprof:oso/9780199562688.001.0001
• Schauer, Fred, 1996, “Positivism as Pariah”, in George 1996: 31–55.
• Shapiro, Scott J., 1998, “On Hart’s Way Out”, Legal Theory , 4(4): 469–507. doi:10.1017/S1352325200001117
• –––, 2011, Legality , Cambridge MA: Harvard University Press.
• Soper, E. Philip, 1977, “Legal Theory and the Obligation of a Judge: The Hart/Dworkin Dispute”, Michigan Law Review , 75(3): 473–519. doi:10.2307/1287980
• Waldron, Jeremy, 1999, “All We Like Sheep”, Canadian Journal of Law & Jurisprudence , 12(1): 169–188. doi:10.1017/S0841820900002198
• Waluchow, Wilfrid J., 1994, Inclusive Legal Positivism , Oxford: Clarendon Press.

How to cite this entry . Preview the PDF version of this entry at the Friends of the SEP Society . Look up topics and thinkers related to this entry at the Internet Philosophy Ontology Project (InPhO). Enhanced bibliography for this entry at PhilPapers , with links to its database.

• The Bentham Project , University College London.

Austin, John | Bentham, Jeremy | law: and language | legal obligation and authority | naturalism: in legal philosophy | nature of law | nature of law: pure theory of law

Copyright © 2019 by Leslie Green < leslie . green @ law . ox . ac . uk > Thomas Adams < thomas . adams @ law . ox . ac . uk >

• Accessibility

Support SEP

Mirror sites.

View this site from another server:

• Info about mirror sites

The Stanford Encyclopedia of Philosophy is copyright © 2023 by The Metaphysics Research Lab , Department of Philosophy, Stanford University

Library of Congress Catalog Data: ISSN 1095-5054

Advertisement

Standing and Pre-trial Misconduct: Hypocrisy, ‘Separation’, Inconsistent Blame, and Frustration

• Original Paper
• Open access
• Published: 07 July 2023

Cite this article

You have full access to this open access article

• Findlay Stark   ORCID: orcid.org/0000-0001-9589-9845 1  

1041 Accesses

8 Altmetric

Explore all metrics

Existing justifications for exclusionary rules and stays of proceedings in response to pre-trial wrongdoing by police officers and prosecutors are often thought to be counter-productive or disproportionate in their consequences. This article begins to explore whether the concept of standing to blame can provide a fresh justification for such responses. It focuses on a vice related to standing—hypocrisy—and a related vice concerning inconsistent blame. It takes seriously the point that criminal justice agencies, although all part of the State, are in real terms separated from each other, and analyses the so-called separation thesis (or theses). It concludes that hypocrisy and inconsistent blame arguments could plausibly justify exclusion and stays only in relation to lower-level offending, and even there only indirectly. This is in the sense that exclusion and stays are expressions of judicial frustration with other bodies for their failure to take pre-trial wrongdoing seriously.

Similar content being viewed by others

What About the Victim? Neglected Dimensions of the Standing to Blame

Alexander Edlich

Can the Law Do Without Retributivism? Comments on Erin Kelly’s The Limits of Blame

Adina L. Roskies

President Donald J. Trump and the Clemency Power: Is Claiming “Unfair” Treatment for Pardon Recipients the New “Fake News”?

Avoid common mistakes on your manuscript.

1 Introduction

Christopher Halliwell was suspected of having abducted Sian O’Callaghan. Footnote 1 The police, fearing that Halliwell was a suicide risk, and thinking O’Callaghan was still alive, conducted an ‘urgent’, ‘safety’ interview. This is, in essence, an interview restricted to establishing if a person is in danger of harm, and to which the normal procedural safeguards do not apply. Footnote 2 Halliwell refused to answer the officers’ questions. Procedure required the police, if they wished to detain him further, to transport Halliwell to a police station so that he could be questioned with the normal legal protections—a reminder of his rights, access to legal advice, (tape or video) recording of interviews, breaks in questioning, etc. Footnote 3 A senior police officer, Detective Superintendent Fulcher, nevertheless instructed the officers who were with Halliwell to take him to a remote location. There, Halliwell was ‘interviewed’ by Fulcher without any of the normal legal protections, including the police caution. This process was later described accurately by the initial Footnote 4 trial judge as an attempt to persuade Halliwell to talk to the police before he had the benefit of his solicitor’s advice, which would likely have been to remain silent.

Fulcher pressurised Halliwell to do the ‘right thing’ by talking to the police, and made references to the then-recent ‘vilification’ of Christopher Jeffries by the media. Footnote 5 The thinly veiled threat was clear: if he did not cooperate, Halliwell would similarly be named publicly as a suspect and ‘vilified’. Otherwise, however, Fulcher’s questioning of Halliwell was, by all accounts, relatively gentle. Eventually, Halliwell admitted killing O’Callaghan, and took the police to her body. He then admitted, unexpectedly, to having killed a second person, Becky Godden-Edwards, 5 years earlier. Godden-Edwards, who had become estranged from her family, had never been reported missing. In consequence, the police were hitherto unaware of this crime. Halliwell took them to where Godden-Edwards’ body was buried. Over four hours after his initial arrest and the ‘urgent’, ‘safety’ interview, and over four hours after procedure required, Halliwell arrived at a police station and was cautioned and given access to legal advice.

At Halliwell’s trial for O’Callaghan and Godden-Edwards’ murders, the trial judge excluded the confession evidence mentioned in the previous paragraph, on the basis that, given the circumstances, it may have been obtained via ‘oppression’. Footnote 6 She also excluded the evidence that Halliwell had led the police to the bodies, on the basis that, given its clear connection with the disavowed ‘interview’, its admission would render the proceedings ‘unfair’. Footnote 7 Given the paucity of other evidence available at the time, this meant that Halliwell was convicted only of O’Callaghan’s murder. There was other evidence linking him to that crime, and he pleaded guilty to it. The case relating to Godden-Edwards’ murder could not proceed because of the exclusion of evidence, although Halliwell was not formally acquitted of it, which had consequences described later in this paper.

Most criminal justice theorists agree Footnote 8 that criminal courts should not completely ignore pre-trial misconduct/wrongdoing of the type that occurred in Halliwell . Footnote 9 On such views, the courts cannot say ‘Nothing to do with us…’, and proceed to convict the defendant regardless. These cases create a dilemma. In the USA, this is reflected in the remedies that courts can adopt in relation to such misconduct: for instance, such misconduct can lead to the exclusion of evidence, and in certain cases its fruits. Footnote 10 In England and Wales, Footnote 11 the courts also subject allegations of pre-trial misconduct/wrongdoing by such State officials (and those acting at their behest) to searching scrutiny and will sometimes Footnote 12 exclude prosecution evidence, Footnote 13 or stay (cease permanently) proceedings as an abuse of process, Footnote 14 against the defendant. Footnote 15

Even if these responses seem in line with intuitions about fairness, something of a dilemma remains. Halliwell does not seem like an ‘easy’ case, where exclusion is the obviously correct answer. Stays, and to a lesser extent exclusion of evidence, compromise some of the main aims of the criminal justice system: most prominently the conviction of the factually guilty, and the protection of the public. Footnote 16 They accordingly require strong justification, or risk being castigated as mechanisms that permit the guilty to go free ‘because the constable has blundered’, Footnote 17 perhaps threatening the system’s legitimacy.

Sometimes, the proffered justification is that such responses deter repetitions of pre-trial wrongdoing. This is now the prevailing judicial theory of the US Supreme Court regarding the exclusion of evidence obtained in violation of Constitutional protections Footnote 18 : if the ‘benefits of deterrence… outweigh the costs’, the evidence is excluded; otherwise, it is not. Footnote 19 There is, however, good reason to doubt the practical efficacy of exclusion as a deterrent, especially as compared to measures such as direct discipline and personal legal liability of officials. Footnote 20 This is, in part, why the exclusionary rule at a federal level in the US is becoming increasingly narrow. Furthermore, Fulcher later indicated that he still believed that he had acted rightly in the circumstances. Footnote 21 In other words, if deterrence of repetitions of pre-trial wrongdoing is why we allow stays and exclusions of evidence, our existing rules are perhaps indulgent. Deterrence, then, might lead to a radical narrowing of judicial responses to pre-trial misconduct.

Other theorists adopt a rights-based approach to the exclusionary rule – one that would exclude evidence obtained in violation of certain rights, to put the defendant back in the position he would have been in but for the violation. Footnote 22 Such an approach might Footnote 23 support the trial judge’s decision in Halliwell . The denial of the right to access to legal advice, for instance, is rightly taken particularly seriously by the courts domestically and internationally, Footnote 24 and this whole affair was a calculated attempt to deny the effective exercise of that right, as well as the right to silence/privilege against self-incrimination. But this theory is rightly viewed with scepticism by those who point out the huge costs involved in its application, in terms of pursuing the factually guilty. Footnote 25 Arguably, such costs are typically disproportionate responses to the relevant rights violation in cases like Halliwell . If deterrence justifies too few stays and exclusions, rights-based approaches arguably justify too many.

If deterrence and rights-based arguments cannot justify something like existing exclusionary rules, at least without costs which appear disproportionate, other justifications should be explored, or the current rules should be changed. This article begins an exploration of whether the literature on standing to blame, which has attracted the interest of criminal theorists in a range of contexts, Footnote 26 can provide novel arguments in support of exclusion and stays, even where deterrent effects are debatable and proportionality with a rights violation might be doubted.

It is useful to start by defending the consulting of this literature in the context of exclusions and stays.

2 Why Look at Standing?

This wider literature on standing to blame or condemn Footnote 27 is a plausible source of theoretical justifications for exclusion and stays if—as is often thought—criminal trials are at least in part about the sending of moral messages, most prominently about condemnation. Footnote 28 If such messages can be problematised on grounds of (lack of) standing due to pre-trial wrongdoing, rules permitting (or necessitating) exclusion and/or staying proceedings might be justified, even if their deterrent effect is unclear and/or the result seems ‘disproportionate’.

(To clarify, the term ‘problematised’ describes cases where, without more, the would-be blamer is disabled from blaming. It thus captures theories of standing that view standing as a binary matter (one has standing, or one does not), and theories of standing that view standing as existing on a spectrum (one can have more or less standing, and this might have implications for their attempts at blaming others, and eventually one will be disabled from blaming others). My hope is that nothing vital turns on this point for present purposes.) Footnote 29

In philosophical writing, two vices are frequently taken to be particularly relevant to compromised or lost standing: hypocrisy and complicity. This article tests whether the first of these ideas—hypocrisy, and ultimately a related vice concerned with inconsistent blame—can provide a fresh and compelling basis for excluding evidence and staying proceedings based on pre-trial misconduct/wrongdoing, particularly in the light of the fact that the State’s criminal courts are plausibly ‘separated’ from State actors such as the police and the prosecution service. Footnote 30 Such ‘separation’ might be thought to provide a justification for the courts to overlook the wrongdoing of others when considering whether they have the standing to blame defendants.

It will be suggested that arguments emerging from considerations of hypocrisy, or inconsistent blame more generally, could only ever justify exclusionary rules and stays of proceedings in relation to lower-level offending. Furthermore, even where hypocrisy- and inconsistent-blame-based considerations of standing bite, they seem to provide support for the creation and application of robust, parallel systems of discipline and prosecution to respond to pre-trial wrongs, rather than incurring the huge cost of the acquittal of a defendant who could be proved to be factually guilty or admits guilt. It will be seen that exclusion and stays may just be expressions of judicial frustration at the failure of other State agencies to deploy these parallel systems effectively. The point of expressing such frustration through stays and exclusion is to encourage those other agencies to do better; to address their inconsistent blaming practices, which threaten their standing to blame. This conclusion does not, of course, exclude the potential significance of other ‘standing’ arguments, but those arguments need to be probed separately.

One important point should be made before continuing. This paper proceeds on the basis that the criminal trial is concerned with moral condemnation, and particularly by the State and on behalf of the polity. One response is to deny that this is always (or, indeed, ever) the case. If moral condemnation is not in issue, then concerns of standing are less pertinent, or even irrelevant.

A system that allows for non-condemnatory convictions is readily imaginable. Footnote 31 Alternatively, one might contend that in such cases the State’s courts speak on behalf of the victim(s) (who will presumably retain standing), rather than the State or the polity. Footnote 32 I cannot, however, flesh out such models, let alone test their workability, here. The arguments in this paper nevertheless provide some evidence for the conclusion that such alternatives may sometimes be required by those who are committed to condemnation’s role in standard trials.

With these defences presented, the next section of the paper explores hypocrisy, and why it problematises standing. It then considers the ‘separation thesis’, arguing that there are in fact separation theses . It will then be argued that ‘separation’ might not be fatal to a lack of (sufficient) standing by developing hypocrisy into a related vice—inconsistent blame. Inconsistent blame is not accurately ascribed to the courts , but instead to other criminal justice actors. Courts might stay proceedings or exclude evidence to encourage those other actors to react more appropriately to pre-trial misconduct; to address their inconsistent blaming practices and resulting problematised standing.

3 Defining Hypocrisy

There is no agreement in philosophy regarding what hypocrisy consists of Footnote 33 —hence it can simultaneously be thought to be ‘ubiquitous and multifarious’ Footnote 34 and rare. Footnote 35

Many philosophical accounts of hypocrisy focus on the tu quoque (‘you too’) argument, which standardly takes the form of ‘ ad hominem arguments wherein a speaker… charges another… with inconsistency on an issue of dispute’. Footnote 36 Such accounts of hypocrisy seem to require that the hypocrite has engaged in the very same misconduct as the would-be target of blame. This renders hypocrisy a narrow vice, and does not seem to reflect standard usage. It might, accordingly, be suggested that hypocrisy requires only that the hypocrite has engaged in wrongdoing that is similar to the would-be target of blame’s wrongdoing. Perhaps the thought is that the reasons underlying the identification of conduct as wrongful are similar or the same. For instance, on this view, it is hypocritical for someone who never undertakes exercise to criticise another person’s poor diet.

Some theorists hold that hypocrisy, and thus problematised standing, can exist where the would-be blamer has engaged in entirely different wrongdoing from the would-be target of blame, focused on different reasons, just so long as that wrongdoing is of comparable or greater severity to the would-be target’s. Footnote 37 On this view, the mafia boss who condemns his son’s laziness is being hypocritical even (particularly?) if the mafia boss is a real go-getter . Footnote 38

This widest conception of hypocrisy will (my experience suggests) strike many readers as counter-intuitive. For instance, if I am a serial arsonist and I suffer a minor assault, a charge of hypocrisy seems misplaced if I seek to blame the assailant. Similarly, many parents would be prevented from blaming their children for minor transgressions because, presumably, they will have done something worse in the past (and not have responded adequately to that wrongdoing). Ultimately, this is a point about one’s intuitions about what hypocrisy is (and what it is not), and I am not sure it can be resolved by philosophical argument.

Despite this fact, this particularly wide view of hypocrisy can illuminate the kind of standing argument that is most relevant to stays and exclusions. More formally, the widest view of hypocrisy looks like this:

Hypocrisy : An agent, A, acts hypocritically when she blames another agent, B, for Ф-ing, when A has herself Ф-ed, or A has engaged in wrongful behaviour that is of comparable seriousness to, or more serious than, Ф-ing (and has not taken responsibility for that wrongdoing). Footnote 39

The bracketed part of this definition concerns regaining standing after it has been lost; a topic to be returned to below.

4 Standing and Hypocrisy

Hypocrisy might be too broad as a definition of the concept of hypocrisy, but its comparative aspect reveals something important about the idea of standing. If standing were compromised by any wrongdoing on the would-be blamer’s part, this would make blaming a difficult, if not impossible, enterprise. Footnote 40 ‘“Judge not” disempowers me as a critic as long as I am not entirely sinless’. Footnote 41 And loss of standing ought to concern us, because legitimate blame possesses significant beneficial consequences, in terms of moral education and reaffirmation of normative commitments. It is, on either the binary or the scalar view, rash to suggest that standing evaporates whenever one exhibits any fault, and we had better push on with blaming wrongdoers regardless in the hope of getting some form of result. The better view is that there is no requirement in morality that would-be blamers be ‘without sin’, and that standing can accommodate some faults on the part of the would-be blamer. Footnote 42

These points transpose to the criminal justice system. If that system were to aim ‘to be beyond moral criticism’, Footnote 43 or ‘beyond reproach’, Footnote 44 it would (ignoring considerations of the ‘separation’ of criminal justice agents, for the moment) very likely be barred from legitimately Footnote 45 condemning defendants in a range of cases, given the frequency with which legal procedures designed to protect citizens and defend their rights are not followed to the letter. The system would plausibly be disabled from appropriately condemning factually guilty offenders in circumstances that might even threaten its legitimacy and the extent to which citizens will cooperate with it. Footnote 46 This is similar to the problem with rights-based accounts, if they are applied in such a way that the result is seemingly disproportionate stays and exclusions. But this kind of standing-based account could be much wider and more severe than that, because human rights violations are a mere subset of the wrongs that could be perpetrated by State agents pre-trial that might problematise standing to blame. Justice would not be done for the victims of the relevant wrongdoing in such problematic cases, Footnote 47 and factually guilty offenders would be free to offend again. In the context of modern liberal democracies, the only way in which serious wrongs are going to be addressed in an appropriate, practical manner is (where these are criminalised) through the criminal justice system. The absence of the courts’ standing might, then, mean the absence of adequate responses to serious wrongs. These costs should not be ignored. Footnote 48

The preferable view, then, is that standing accommodates some faults, namely those of a lower degree of severity than the target’s. Once an equivalent level of severity is reached, however, it is plausible to view blame as being barred (at least until something is done about the problem of standing). Footnote 49 As Gerald Dworkin suggests, this is because hypocrisy can make an attempt at blaming lack ‘resonance’—that is, hypocrite’s attempts to blame lack authority and are likely to be taken less seriously than those attempts by persons with unproblematic moral standing. Footnote 50 As many accounts of hypocrisy recognise, this response latches onto an inconsistency in one’s judgements about blame in issue. Consider R Jay Wallace’s explanation of the vice of hypocrisy Footnote 51 : ‘hypocrites have failed to live up to the commitment that they have undertaken through the attitudes that constitute their blame… we fail to live up to the commitment to self-scrutiny that we have undertaken in virtue of our having emotions of this kind that are not repudiated’. Footnote 52 What is distinctively wrongful about this failure, Wallace contends, is that it elevates the blamer above the target of her blame—she holds them to standards she is not willing to hold herself to. Footnote 53 The answer, for Wallace, is clear: one must account for one’s own equally or more serious wrongs before one regains the ability to legitimately call others to account for equally or less serious wrongs. There is a close connection between such self-reflection about one’s value judgements and openness, integrity, and the standing to blame. Footnote 54

In a similar vein, Kyle Fritz and Daniel Miller identify the nub of hypocrisy as the possession of a ‘differential blaming disposition’: ‘The hypocrite is disposed to blame others for violations of [a norm,] N , but she is not disposed to blame herself for violations of N , and she has no justifiable reason for this difference’. Footnote 55 Again, the solution is that, if one wants to blame others legitimately, one must take seriously one’s own violations, Footnote 56 removing the inconsistency and the problem with standing. Footnote 57

Appeals to judicial ‘purity’, Footnote 58 ‘ideals of governmental rectitude’, Footnote 59 and avoidance of ‘contamination’ Footnote 60 and ‘pollution’, Footnote 61 are thus misleading unless implicitly they are concerned with roughly comparative levels of wrongdoing, such as those relevant to Hypocrisy . Although ‘The publicity of authority, at once, intensifies scrutiny, [and] also consequently intensifies expectations of consistency’, Footnote 62 and the courts hold themselves out to be supreme arbiters of blame in vital contexts, those involved with the criminal process need not be utterly without their faults to keep their standing in view. It is this concern with comparative levels of wrongdoing that nevertheless makes a Hypocrisy -based account of exclusionary rules and rules about staying proceedings suspect, even before concerns of judicial ‘separation’ are introduced.

A Hypocrisy -based argument would, for instance, seem to point against a stay or the exclusion of impugned evidence in Halliwell . It seems hard to reach the conclusion that the pre-trial misconduct at issue there was comparable in its severity to a murder, let alone two murders. Even if it were credibly the case that proceeding with the case against Halliwell increases the likelihood of repetitions of such police misconduct, those repetitions too are unlikely to be equivalent in severity (though this may raise concerns more aptly concerned with complicity, a separate argument related to one’s standing to blame others).

As noted above, Halliwell was never formally acquitted of Godden-Edwards’ murder, and so the rule against double jeopardy did not bar a second prosecution. Years later, Halliwell was indeed prosecuted again for Godden-Edwards’ murder, using a combination of the original confession evidence—which was admitted, that time around—and fresh evidence about Godden-Edwards’ killing obtained after the first, collapsed trial. Halliwell was, at the second attempt, convicted of Godden-Edwards’ murder. The second court did not—on any of the views sketched above—act hypocritically in condemning Halliwell because, simply, the wrongdoing that the court sought to blame Halliwell for vastly outstripped the pre-trial wrongdoing that Fulcher and his subordinates had engaged in; it was nothing like the same kind of wrongdoing. This is not meant as a suggestion that ‘the ends justify the means’—a proposition that the criminal courts are keen to deny. Footnote 63 It is instead a recognition that a charge of Hypocrisy and loss of standing to condemn because of that is misplaced here, even ignoring considerations of ‘separation’.

It has been argued that a Hypocrisy -based account of loss of standing to blame and condemn applies only where the investigatory misconduct is as serious as, or more serious than, the defendant’s wrongdoing, which makes it unlikely that Hypocrisy could operate to prevent the courts from acting except in relation to minor crimes. This is not to say that a Hypocrisy -based account would be irrelevant for this reason: minor crimes make up by far and away the huge majority of offences that are committed. Footnote 64 They raise a number of concerns with regard to police misconduct and discriminatory conduct. But it is not in relation to such crimes that arguments like Hypocrisy are usually thought to be most urgent. Cases like Halliwell strike most people as genuinely hard, not easy.

The next question is whether one should go further than pointing out that this comparative dimension of wrongfulness is unlikely to be satisfied in relation to more serious offences like those in Halliwell . Until now, the core question of who is seeking to blame a defendant has been left largely unaddressed. If the assumption is that the would-be blamer is ‘the State’, as it seems often to be in the ‘standing’ literature on criminal justice, then comparative wrongdoing seems the sole relevant criterion when assessing hypocrisy. But can it be said that Fulcher’s wrongdoing did not threaten the court’s standing to condemn Halliwell, simply because Fulcher was acting independently, without the court’s authority or support (or, indeed, anybody else’s authority or support)? In other words, should we challenge the idea that the would-be blamer is ‘the State’, rather than a specific part of it, independent of the other parts?

5 The Separation Theses

As noted above, the literature on standing is thought relevant because of the idea that the criminal conviction sends a moral message about blame. It has become more common to look for lessons for the criminal process in such literature. There is, despite this point, an obvious tension between an attempt to rely on the wider philosophical literature on standing, and particularly that based on ideas of hypocrisy, and the realities of the criminal process in systems like England and Wales (the system under which Halliwell was tried). The courts are not in direct control of the police, or the prosecution service, let alone non-State agents. Footnote 65 Nobody is alleging that the courts themselves have done anything wrong in the kinds of cases under consideration here, disabling them directly from legitimately blaming factually guilty defendants. And if this direct link is broken, then might it be thought that the courts have no standing problem, at least of the type under discussion in this article?

There are reasons to think that this direct link can indeed be broken. Although one could adopt the position that all agencies involved are State agencies (and it is the State that loses its standing, which filters down to the courts), Footnote 66 this view ignores the fact that the police, prosecution service and courts are distinct parts of the State in important senses, and for good reasons about controlling power. This has given rise to what is referred to in the criminal justice literature as the ‘separation thesis’; Andrew Ashworth’s phrase, Footnote 67 though the idea is sometimes found under a different label. Footnote 68 In fact, the separation thesis is not one idea, but instead a bundle of related ideas, which is why it can be at once alleged to be ‘remarkably resilient’ Footnote 69 and ‘discredited’. Footnote 70

The various versions of the separation thesis fall into two camps, ignoring hopefully irrelevant details. The first make ‘simplistic’ Footnote 71 arguments about the stages of criminal proceedings: the investigatory stage is ‘separate’ from the trial stage, and accordingly wrongdoing in one stage can be ignored at the other stage. Footnote 72 Call this the ‘Separate Stages Thesis’. English and Welsh judges used to make something like this argument, Footnote 73 but it appears to have fallen out of judicial favour. Rightly so: there is an intimate linkage between the investigation and the trial. The trial is the anticipated Footnote 74 culmination of that investigatory stage; it is part of the same conveyor belt. Footnote 75 It is what the investigation is in aid of, not a thing apart from it. Footnote 76 This Separate Stages Thesis does not get far.

There nevertheless exists a second, broad type of separation thesis, based on the identity and agential independence of the person who is alleged to have engaged in wrongdoing. For example, it might be pointed out that the police are ‘separate’ from the courts Footnote 77 : although they are both parts of the State (the apparently easy answer), the doctrine of separation of powers sees the police as part of the executive, and the courts as part of the judiciary. Footnote 78 And this is important to ensure that the judiciary has adequate independence from the police, preserving judicial integrity. Under this model, the courts can exercise at best indirect control over police activities, and only after the fact. A judge cannot instruct the police to investigate an offence, or mandate that disciplinary measures be taken against police officers. Although prosecutors are ‘officers of the court’, the same is true of them. Footnote 79 They are part of the executive, and, in the ‘adversarial’ tradition, independent of the judiciary’s direct control. Pre-trial wrongdoing by these ‘separate’ actors does not, an advocate of this type of argument would suggest, have automatic, direct implications for the standing of the others. Accordingly, those ‘separated’ from the pre-trial wrongdoers—typically, the prosecution service and the courts—can proceed in the same way as they would have without the wrongdoing having occurred. Call this the ‘Separate Identities Thesis’.

The Separate Identities Thesis has proved more resilient than the Separate Stages Thesis. It might be countered that it will not convince many defendants, who will see the mighty machinery of ‘the State’ deployed against them, rather than separate actors. Footnote 80 But such a perspective is , in important respects, insufficiently nuanced. My suggestion is that defendants could be brought to see the important distinctions between different State actors, the limits of their powers, and the good reasons for those distinctions and limits. This explanation would not be a sham, for it reflects the reality that is pertinent when considering who is seeking to blame the defendant, and their relationship with those who have wronged the defendant.

If this point is accepted, another problem arises: hypocrisy is understood typically as a vice inherent in a bilateral relationship. The would-be target of blame challenges the would-be blamer’s standing on the basis of something that the would-be blamer has herself done. The Separate Identities Thesis points out that criminal proceedings involve, plausibly, a tripartite or quadripartite relationship of independent actors (the defendant, the police and/or prosecution, and the courts), and that these divisions are important for preserving legitimacy. This apparently allows the courts to evade any concerns of Hypocrisy , and thus any concerns about standing that flow directly from that vice. The consequence of this would be that, even in relation to less serious crimes, Hypocrisy would play no justificatory role in respect of rules about stays and exclusion of evidence.

One potential way around this difficulty is to move away from a focus on inconsistency in one’s approach to one's own prior wrongdoing, and look instead at the consistency of one’s judgements about blame.

6 Blaming Inconsistently

In the canonical formulations of hypocrisy engaged with above, it remains the case that the would-be blamer herself has engaged in wrongdoing. Footnote 81 The question is whether hypocrisy can legitimately go further than this. Consider a non-legal case.

Bullying : Allan is presented with compelling evidence that his teenage children, Bastian and Carrie, have both bullied other students after school. Allan has more in common with Carrie, and does not want to threaten their good relationship by blaming her. He thus decides to blame Bastian for his wrongful behaviour but takes no similar action against Carrie.

Can Bastian accuse Allan of hypocrisy, and say that Allan has no standing to blame him for bullying? Allan has, Bastian might argue, demonstrated a failure to interrogate the relationship between his values regarding wrongdoing and his conduct, qua blamer, sufficiently. Allan has—as a result—deployed what looks like a ‘differential blaming disposition’: it merely points to two independent agents, rather than to himself and an independent agent. Allan’s reasons for blaming Bastian, and not blaming Carrie, are—the argument would run—insufficient to overcome the suspicion that he does not really believe that bullying is a serious wrong, which is what he aims to communicate by blaming Bastian. Footnote 82 It does not seem fatal to this attack that Allan himself has never bullied anybody.

Bullying suggests that the Separate Identities Thesis might not have the bite that it sometimes appears to have in relation to other justifications for exclusion and stays. The Separate Identities Thesis does not seem to lead to the conclusion that, so long as one wrongdoer is ‘separate’ from the would-be blamer (largely in terms of control), the would-be blamer can proceed to blame another wrongdoer without questions of standing arising. The criminal courts are roughly in Allan’s position, the argument would run, and their standing can be problematised even if (as is virtually certain) they had no personal involvement in wrongdoing against the defendant. Footnote 83

These points might lead to the development of a second sense of hypocrisy:

Hypocrisy 2 : An agent, A, acts hypocritically when she seeks to blame another agent, B, for Ф-ing, whilst, for insufficient reasons, A fails to seek to blame another agent, C, when A is aware that: (i) C has (a) Ф-ed, or (b) engaged in wrongful behaviour that is equally as serious as/more serious than Ф-ing, and (ii) C has not already been blamed for that wrongdoing and A has no intention of blaming C. Footnote 84

As noted above, Hypocrisy will already have struck many readers as stretching that concept too far, insofar as the blamer’s wrongdoing need not be similar to the would-be target’s, except in terms of relative seriousness. Readers now have another reason to reject the idea that what is being defined here is hypocrisy , on the basis that it is essential to that vice that it necessarily involves one’s own wrongdoing, which Hypocrisy 2 denies. For this reason, and in the interests of avoiding a purely semantic dispute about what hypocrisy really means (which, as noted above, seems mainly to be a question of intuition), the type of inconsistency at issue in these cases could also be captured by an alternative vice Footnote 85 :

Inconsistent Blame : An agent, A, blames inconsistently when she seeks to blame another agent, B, for Ф-ing, whilst, for insufficient reasons, A fails to seek to blame another agent, C, when A is aware that: (i) C has (a) Ф-ed, or (b) engaged in wrongful behaviour that is equally serious as/more serious than Ф-ing, and (ii) C has not already been blamed for that wrongdoing and A has no plans to blame C. Footnote 86

The suggestion here is that Inconsistent Blame compromises standing to blame because of the inconsistency regarding blaming judgements that lies at its heart. Footnote 87 To resolve this inconsistency, and ensure standing, it appears that A must seek to blame both B and C (or neither). In other words, standing is not only problematised by just hypocrisy and complicity. It is also problematised by Inconsistent Blame .

It is, of course, a separate question whether this vice can plausibly explain exclusion of evidence and stays of criminal proceedings. For one thing, Inconsistent Blame seems to focus on the very enterprise of blaming, rather than the evidence one uses to found one’s blaming judgements. Footnote 88 Consider the following example:

Stolen Note : Ariana, a university lecturer, is called upon to consider whether to punish Bob for plagiarism. The evidence against Bob consists of: Bob’s summative essay; the report of a similarity-detecting software that indicates that Bob’s essay contains a high number of similar blocks of text without quotation marks or citations to the original author’s work; the absence of any explanation by Bob when asked by Ariana to provide one; and a note in which Bob confesses to plagiarising Prof Chokra’s article. The note was stolen by Deborah, Bob’s flatmate.

A minor theft and plagiarism are, for the sake of argument, roughly equivalent wrongs. This would render Deborah a hypocrite if she attempted to blame Bob. If Ariana has no intention to blame Deborah for the theft (let us further assume that thefts from university flats can be adjudicated under the same sort of process), we might also doubt the consistency of Ariana’s blaming judgements.

Can Ariana avoid this difficulty by simply refusing to allow Deborah’s evidence to influence her decision about Bob’s wrongdoing? No: she would still be seeking to blame Bob for his misconduct, whilst being aware of Deborah’s having engaged in wrongful behaviour that is equally serious to that misconduct, and the fact that Deborah has not been blamed for her wrongdoing, and additionally whilst having no intention to blame Deborah. It seems that Inconsistent Blame can assist us in understanding only stays. Exclusion of evidence must be explicable, if it is to be explicable, either on a different standing-based argument (concerning a wrongdoer’s standing to benefit from their wrongdoing, the court’s potential complicity in that wrongdoing, etc.), or a different argument entirely (for instance, deterring future repetitions of the relevant wrongdoing).

Even if, thus far, it seems to offer some support for staying proceedings, courts might not be thought to take Inconsistent Blame very seriously. For instance, the English courts have had no problem in rejecting arguments to the effect that it is abusive to try D1 for offence X , whilst declining to prosecute D2, D3, etc. for offence X , or for less serious offence Y . But the reasoning behind such decisions seems in fact to deny that there is a differential blaming disposition: for instance, by pointing out the different strength of the evidence available in relation to each defendant, and other practical and tactical considerations. Footnote 89

This gist of Inconsistent Blame has, moreover, positively been grasped in discussions of pre-trial wrongdoing Footnote 90 :

If judges routinely winked at rights violations by state investigators and prosecutors, criminal proceedings would be tainted by the appearance of double standards, and the public would probably quickly lose respect for a system of law apparently announcing, ‘do as we say, not as we do’. More to the (moral) point, a system of law predicated on such double standards would not merit public confidence and respect.

Similarly, in Maxwell , Footnote 91 the United Kingdom Supreme Court had to decide whether it was in the ‘interests of justice’ to allow a retrial following the quashing of a conviction on the basis of flagrant police misconduct. For whatever reason, the police officers involved had not been disciplined or prosecuted for what they had done. Lord Brown was outraged: ‘Scarcely less remarkable and deplorable than this catalogue of misconduct, moreover, is the fact that… not a single one of the many police officers involved has since been disciplined or prosecuted for what he did.’ Footnote 92 Although similar expressions of strong judicial dissatisfaction are found in other judgments in Maxwell , other Justices did not seem to find the lack of alternative steps to address the police wrongdoing to even be relevant when deciding whether a retrial should take place: ‘the question of whether [a retrial should be granted should not] depend on the fortuity of whether the offending police officers were disciplined and/or prosecuted for their appalling misconduct’. Footnote 93 By a majority, Maxwell’s retrial was allowed to proceed.

It might be thought that there is something inconsistent in opening the door to (fresh) condemnation of Maxwell, whilst—despite the judges’ harsh words—recognising the irrelevance of the failure to act against the police officers involved, even if fortuitously the ‘fruit’ of their wrongdoing gave sufficient warrant to think Maxwell guilty. The better analysis is that the State misconduct was relevant , but that it paled into insignificance next to the wrongdoing that Maxwell was accused of (multiple robberies, and a murder).

Even ignoring that point, concerns of ‘separation’ arise. One may point out that in Maxwell it was the police disciplinary body—the Independent Office for Police Conduct—and the Crown Prosecution Service that seem to have a putative differential blaming disposition, for it was they who decided not to proceed against the police officers, whilst seeking fresh condemnation of Maxwell through the courts. Again, the courts cannot, in practice, compel disciplinary action or a prosecution, and this is—again—for sound reasons about limiting power (reasons that, as suggested above, defendants could sensibly come to appreciate). In this respect, the courts are not in a position analogous to that of Ariana in Stolen Note or Allan in Bullying : Ariana and Allan are in charge of who is open to being blamed, and who is shielded from such reactions, and so their inconsistency in blaming is readily apparent. Footnote 94 The courts can only deal with those brought by others—principally the prosecution service—before them, and it is difficult to see, in this practical context, how someone else ’s compromised standing infects the court’s standing such that they appear hypocritical or inconsistent. Once again, pointing out that they are all State agencies underplays the significance of how these agencies function and interact.

Even Inconsistent Blame seems not, then, to threaten the courts’ standing to condemn defendants in circumstances where there was pre-trial misconduct. This means that, even leaving exclusion of evidence to the side, stays of proceedings are not plausibly reactions to, or recognitions of, the court’s lack of standing based on its inconsistent approach to blame. Instead, as the next section explains, exclusion and stays are ways of expressing judicial frustration with the inconsistent blaming dispositions of other parts of the State’s criminal justice apparatus. They are their way of encouraging those other State agencies to address a problem with their standing.

7 Encouraging Others to Address Their Compromised Standing

As noted above, adequate standing to blame is not best viewed as something that one forfeits easily. For similar reasons, it is best not to view standing as something that one loses permanently. Footnote 95 For instance, if I stole a chocolate bar from a shop at age 15, it would be beyond harsh, and contrary to our blaming practices, to conclude that I am forever barred from blaming others for their minor thefts. Rather, standing ought to be recoverable. Footnote 96

Indeed, the fact that standing can be recovered gives us reason to try to regain standing, resulting in adequate responses to wrongdoing. It is worth noting that there is something counter-intuitive in hypocrisy – and the related vice of Inconsistent Blame – leading to a loss of standing. In bilateral forms of hypocrisy, not only does the hypocrite’s own wrongdoing go unaddressed, but the target’s wrongdoing is, due to the lack of standing, incapable of being addressed, at least by the would-be blamer until she does what is required to regain standing. Footnote 97 Inconsistent Blame seems merely to expand the category of those who cannot, without more, blame an acknowledged wrongdoer.

This might be thought to underplay the potential consequential benefits of hypocritical/inconsistent blame. Footnote 98 Why not, then, view the avoidance of hypocrisy and related vices to do with inconsistent blame as ‘a matter of intellectual book-keeping or mental hygiene rather than something with independent moral weight’, Footnote 99 let alone institutional weight? Why care, in other words, if the police or the prosecution service are acting hypocritically/inconsistently, and they lack standing, just so long as we can be sure that the defendant is factually guilty of wrongdoing and the court can record this fact authoritatively?

One reason to think that hypocritical and inconsistent blame might have fewer benefits than their non-hypocritical and consistent counterparts concerns the reactions of others to the relevant judgements about wrongdoing. As noted above, hypocrisy problematises standing because of an apparent inconsistency in one’s blaming judgements.

There is, again, something deeply counter-intuitive about this point. Hypocrisy problematises standing because of the would-be blamer’s previous wrongdoing, with the result that now two instances of wrongdoing ought to go unaddressed. What purpose does this serve? James Edwards has proposed tentatively that the loss of standing attendant upon a charge of hypocrisy is, in fact, morality’s way of encouraging action in relation to both instances of wrongdoing; it encourages ‘levelling up’, morally Footnote 100 ; at least if people want standing and the ability to unproblematically call others to account for their wrongs. Similar points can be made about inconsistent blame: the hope is that problematising the would-be blamers’ deployment of her standing to blame will, because she desires to blame others for their wrongdoing, motivate her to respond to the matter that compromises her standing. If the aim is to ensure that the greatest number of wrongs is responded to and, if Dworkin is right, in the most ‘authoritative’ manner, with the most ‘resonance’, then problematising standing makes sense, even if its immediate consequence is to temporarily bar some persons from responding adequately to others’ wrongs.

Transposing this to the criminal justice context, what could be done to ‘level up’ and ensure that both the pre-trial wrongs and the wrongs perpetrated by the defendant are dealt with? As noted above, the impetus for ‘levelling up’ cannot, at least without changing fundamentally the constitutional relationship of the parties (a relationship justified on the basis of limiting power) come directly from the courts – it is going to have to come from the police disciplinary body or the prosecution service.

What could these disciplinary and prosecutorial bodies do? They could say that the pre-trial misconduct is unacceptable. Footnote 101 This is unlikely to be a sufficient reaction to the relevant wrongdoing, however, and will seem insincere, at least without some form of action. What is required is not mere public recognition of a wrong, but some public indication of what can and should be done about it. Footnote 102 The more obvious form of action in relation to police misconduct, for example, is to seek to condemn, discipline and/or punish both the investigator and the defendant. Footnote 103 After all, two wrongs have been perpetrated, and should be dealt with; and not just through words that ring hollow in the absence of action. Lord Dyson noted this point in Maxwell : ‘I cannot help but think that, if the offending police officers had been disciplined and indeed prosecuted, the argument that a retrial based on the appellant’s admissions would have been offensive to the court’s sense of justice and propriety would have lost much of its force’. Footnote 104 In a similar vein, the Australian Federal Evidence Act 1995 directs courts to take into account, when deciding whether to exclude evidence, ‘whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention’. Footnote 105

The thought is, then, that alternative methods of dealing with investigatory misconduct might remove the need to react in the courtroom itself, and allow the courts to condemn the factually guilty defendant for her proven wrongdoing without anybody relevant’s standing being in question. The staying of proceedings would be unnecessary, at least on grounds related to Inconsistent Blame .

As noted above, however, the courts cannot guarantee the discipline or punishment of errant State actors. The courts can assume that, often, no action will be taken by the relevant independent actors. Presumably, in the case of criminal prosecutions in relation to pre-trial wrongdoing, there is a strong desire for prosecutors not to antagonise people they rely on to bring them evidence. Footnote 106

The defendant’s own ability to hold State officials to account civilly for pre-trial misconduct is limited. Civil actions against the police are problematic in terms of their legal availability (not all pre-trial misconduct is legally actionable) and their effectiveness (in terms of deterrence and personal hardship for the wrongdoers, as opposed to employers/insurers), and they are often difficult to ‘win’ (particularly in jurisdictions where an unsympathetic jury would be involved). These facets of civil claims are combined with the stress, expense and loss of privacy they typically involve. Footnote 107

Furthermore, even when alternative steps are taken to respond to pre-trial wrongdoing, they can appear plainly inadequate. Some further details about Halliwell : after the first trial, DSupt Fulcher was found by a disciplinary tribunal to have engaged in ‘gross misconduct’ in relation to his actions. He was nevertheless allowed to keep his job. He resigned in protest at the tribunal’s conclusion, and indicated that he would again engage in the kinds of misconduct he had perpetrated if the opportunity arose. He remains unrepentant, and has now written a book defending his actions, Footnote 108 and his story has been the subject of a TV drama, celebrating his efforts to bring a multiple murderer to justice. Footnote 109 Given Fulcher’s disregard for Halliwell’s rights as a suspect, there is some warrant for thinking that – even when disciplinary action is taken – it is likely to be inadequate relative to the wrongdoing involved; errant actors will still think that the ends justify the means. Another officer in Fulcher’s position might take the view that a ‘gross misconduct’ finding, and a final written warning, is worth it to potentially save a life. Most viewers of the television drama will no doubt agree.

The sum of all of this is that the courts cannot be sure that others will ensure that any, or at least adequate, repercussions will follow pre-trial wrongdoing, including wrongdoing that might be roughly equivalent to that perpetrated by the defendant. Indeed, they can be confident that these things probably will not happen. Perhaps the problem is one of judicial imagination, though it is difficult to imagine what else they may do. Footnote 110 The problem accordingly remains visible in practice.

Although there are repeated references in cases to the powers of exclusion and staying of proceedings as not being disciplinary in nature, Footnote 111 the exclusion of evidence, or staying of proceedings, may be the only effective measure the courts have at their disposal to ensure that anything happens in response to pre-trial misconduct. Footnote 112 If ‘something’ sincere must be done to redress the wrongs against defendants before a charge of Inconsistent Blame is met, then the courts may conclude that they have to act to encourage others to act, Footnote 113 even if the courts are not the ones who possess the relevant vice and have compromised standing, and even if the measures they take jeopardise the ends of criminal justice. Ultimately, then, it is not a concern with their own vice of Inconsistent Blame that explains why the courts are justified in acting; it is their frustration with other agents’ refusal to take their vice of Inconsistent Blame seriously that explains why the courts are moved to action. And presumably the aim is that other agencies will respond appropriately to this judicial frustration, which seems to collapse into a deterrence-based rationale for stays and exclusions, or perhaps one based on considerations of complicity in future pre-trial misconduct. The question would then be whether stays and exclusions in fact prompt such an alteration in the approach to pre-trial misconduct, hopefully reducing the chances of its repetition in the future. In other words, the rather lofty concept of standing, at least insofar as the vices of Hypocrisy and Inconsistent Blame impact upon it, gives significant way to empirical data about what will provoke action elsewhere within the criminal justice system. And that must, of course, be balanced against the costs of exclusion and stays for the pursuit of criminal justice.

8 Conclusion

It is now possible to reach a conclusion regarding the prospects of hypocrisy, and the related vice of Inconsistent Blame , providing a novel justification for exclusion of evidence or the staying of proceedings. The relevant vice will only be present where the pre-trial misconduct is equivalent in severity to, or more serious than, the defendant’s clear wrongdoing. Realistically, this means that exclusion and stays could only be justified, in principle, in relation to less serious offences. Such responses could not, even in principle, be convincingly justified on this basis in relation to the most serious offending. Yet these more serious crimes are most often where exclusion and stays strike people, intuitively, as most urgent.

Even in cases where this standard of pre-trial wrongdoing is met or exceeded, excluding evidence seems to do nothing to meet concerns of Inconsistent Blame , as this is about inconsistent responses to wrongdoing, not the evidence upon which such responses are based. Once concerns of ‘separation’ enter the frame, it becomes plain that it is not the courts that are the ones being inconsistent. This led to the conclusion that exclusion and stays are best conceptualised as frustrated judicial responses to the failure of other bodies to hold those liable for pre-trial misconduct to account, whilst those other bodies seek condemnation of the defendant. Footnote 114 In other words, exclusion and stays are measures designed to prompt another party to respond adequately to its hypocrisy and/or inconsistent blaming practice. The worth of doing this seems, ultimately, to be a question about practical efficacy, which is largely where theories of exclusion and stays based on deterrence lead.

This conclusion gives us one reason to doubt that the literature on standing to blame can do much to help justify exclusion and stays based on pre-trial misconduct. Other aspects of standing (perhaps based on complicity in wrongdoing, or condonation of it) should be interrogated in similar terms, to see if they can offer a better justification for exclusion and stays than the current literature offers.

Bristol Crown Court, May 2012. The relevant rulings can be found at: https://www.judiciary.uk/wp-content/uploads/JCO/Documents/Judgments/halliwell-ruling.pdf .

See Police and Criminal Evidence Act 1984, Code C, para. 11.1.

See PACE, Code C.

As explained below, Halliwell was subsequently retried before a different trial judge.

Jeffries was wrongly suspected of murdering his tenant, Joanna Yeates, and was the subject of extremely prejudicial press coverage.

The prosecution failed to prove beyond reasonable doubt that there had been no oppression, as required by PACE s 76(2). The trial judge concentrated on the fact that Halliwell seemed shocked by his initial arrest, and that the whole process was an attempt to make a suspect, who was clearly not going to talk unless and until he had a solicitor present, incriminate himself.

See PACE, s 78. The ‘fruits’ of inadmissible confessions are not automatically excluded under English law: ibid ., s 76(4)(a).

Some scholars are sceptical of exclusionary rules: e.g., Larry Laudan, Truth, Error and Criminal Law: An Essay in Legal Epistemology (Cambridge: Cambridge University Press, 2006).

‘Misconduct’ and ‘wrongdoing’ include the violation of the rules of evidence and procedure, assuming these rules generally track wrongs against citizens/suspects.

But not always: e.g., Hudson v Michigan , 547 US 586 (2006). Entrapment can, of course, operate as a defence in some jurisdictions, e.g. Sorrels v US , 287 US 435 (1932).

My examples are largely from England and Wales, but I will mention judicial statements from various jurisdictions.

Evidence obtained by torture must be excluded in England and Wales: A v Secretary of State for the Home Department (No 2) [2006] 2 AC 221; Cwik v Poland (2021) 72 EHRR 19.

On confessions, see PACE, s 76. Additionally, ibid. , s 78 allows courts to exclude prosecution evidence where, ‘having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of proceedings that the court ought not to admit it’.

See, generally, Patrick O’Connor, ‘“Abuse of Process” after Warren and Maxwell ’ [2012] Criminal Law Review 672–686.

If the misconduct is discovered after conviction, the question is whether it renders the defendant’s conviction ‘unsafe’: Criminal Appeal Act 1968, s 2(1).

On the various purposes of criminal justice, see Lucia Zedner, Criminal Justice (Oxford: Oxford University Press, 2004), ch 1.

People v Defore , 150 NE 585, 587 (NY 1926).

Indeed, it was described as the exclusionary rule’s ‘primary purpose’ as long ago as US v Calandra , 414 US 338, 348 (cf 356) (1974).

Herring v US , 555 US 135, 141, 144 (2008).

The empirical data on this topic remains inconclusive, but there are sound reasons to nevertheless doubt the efficacy of the exclusionary rule: see Christopher Slobogin, ‘Why Liberals Should Chuck the Exclusionary Rule’ [1999] University of Illinois Law Review 363–446.

‘I did these things because they were the right things to do in the circumstances. In fact, they were the only things to do’: https://www.theguardian.com/global/2017/jun/25/catching-a-serial-killer-stephen-fulcher-police .

This approach was defended in multiple editions of Andrew Ashworth’s The Criminal Process (including those co-authored by Mike Redmayne), but the relevant section has been removed from the most recent edition.

This would depend, naturally, on the precise form of the rights-based view proposed. See RA Duff et al., The Trial on Trial , Vol 3: Towards and Normative Account of the Criminal Trial (Oxford: Hart, 2007), 229–234.

See, e.g., Salduz v Turkey (2009) 49 EHRR 19; Cadder v HM Advocate [2010] 1 WLR 2601. Cf. Ibrahim v UK (App No 50541/08, 2016).

Paul Roberts, Roberts and Zuckerman’s Criminal Evidence (Oxford: Oxford University Press, 3rd ed, 2022), 198–201.

E.g. Gary Watson, ‘A Moral Predicament in the Criminal Law’ (2015) 58 Inquiry 168–188; Andrew E Taslitz, ‘Hypocrisy, Corruption and Illegitimacy: Why Judicial Integrity Justifies the Exclusionary Rule’ [2013] Ohio State Journal of Criminal Law 419–475. Not all authors are optimistic about the usefulness of ‘standing’ arguments in criminal law: Matt Matravers, ‘Who’s Still Standing? A Comment on Antony Duff’s Preconditions of Criminal Liability’ (2006) 3 Journal of Moral Philosophy 320–330; Jules Holroyd, ‘Punishment and Justice’ (2010) 36 Social Theory and Practice 78–111; Malcolm Thorburn, ‘Criminal Law as Public Law’ in RA Duff and Stuart Green (eds), Philosophical Foundations of Criminal Law (Oxford: Oxford University Press, 2011). For doubts going in the legal-to-moral direction, see Macalester Bell, ‘The Standing to Blame: A Critique’ in D Justin Coates and Neal A Tognazzini (eds), Blame: Its Nature and Norms (Oxford: Oxford University Press, 2013); Marilyn Friedman, ‘How to Blame People Responsibly’ (2013) 47 Journal of Value Inquiry 271–284, 277–278.

I employ the terms ‘blame’ and ‘condemn’ interchangeably.

See, further: RA Duff, Trials and Punishments (Cambridge: Cambridge University Press, 1986), ch 4; RA Duff, Answering for Crime: Responsibility and Liability in the Criminal Law (Oxford: Hart, 2007); RA Duff, Lindsay Farmer, SE Marshall and Victor Tadros, The Trial on Trial: Vol 3 – Towards a Normative Theory of the Criminal Trial (Oxford: Hart, 2007).

I am grateful to an anonymous reviewer for encouraging me to clarify this point.

For an existing discussion of hypocrisy and exclusion, see Taslitz, ‘Hypocrisy, Corruption and Illegitimacy’. Taslitz does not engage with the philosophical material discussed below.

See, further, Hochan Kim, ‘Entrapment, Culpability and Legality’ (2020) 39 Law & Philosophy 67–91, 85–86.

I am grateful to Andrew Halpin for raising this point.

Indeed, it is doubtful that one universal account could be given—the conclusion reached in Béla Szabados and Eldon Soifer, Hypocrisy: Ethical Investigations (Toronto: Broadview Press, 2004).

RJ Wallace, ‘Hypocrisy, Moral Address and the Equal Standing of Persons’ (2010) 38 Philosophy and Public Affairs 307–341, 307.

Daniel Statman, ‘Hypocrisy and Self-Deception’ (1997) 10 Philosophical Psychology 57–75, 57. See, also, Judith Shklar, Ordinary Vices (Cambridge, MA: Harvard University Press, 1984), ch 2.

Scott F Aikin, ‘ Tu Quoque Arguments and the Significance of Hypocrisy’ (2008) 28 Informal Logic 155–169, 155. See, too: Gerald Dworkin, ‘Morally Speaking’ in Edna Ullmann-Margalit (ed), Reasoning Practically (New York: Oxford University Press, 2000); Friedman, ‘How to Blame’, 282.

Aikin, ‘ Tu Quoque ’, 162. Cf. Jessica Isserow and Colin Klein, ‘Hypocrisy and Moral Authority’ (2017) 12 Journal of Ethics and Social Philosophy 191–222, 203.

Roger Crisp and Christopher Cowton ‘Hypocrisy and Moral Seriousness’ (1994) 31 American Philosophical Quarterly 343-349, 344. See, too, Victor Tadros, ‘Poverty and Criminal Responsibility’ (2009) 43 Journal of Value Inquiry 391–413, 396.

I do not have space here to resolve the matter of whether charges of hypocrisy lose their traction as time passes. See, however: Patrick Todd, ‘A Unified Account of the Moral Standing to Blame’ (2019) 53 Noûs 347–374, 357–358; Kyle G Fritz and Daniel J Miller, ‘Hypocrisy and the Standing to Blame’ (2018) 99 Pacific Philosophical Quarterly 118–139, 129–130.

Matt King, ‘Manipulation Arguments and the Moral Standing to Blame’ (2015) 9 Journal of Ethics and Social Philosophy 1–20, 7.

GA Cohen, ‘Casting the First Stone: Who Can, and Who Can’t, Condemn the Terrorists?’ (2006) 58 Royal Institute of Philosophy Supplement 113–136, 123.

RA Duff, ‘Blame, Moral Standing and the Legitimacy of the Criminal Trial’ (2010) 23 Ratio 123–140, 127; Dworkin, ‘Morally Speaking’, 185; King, ‘Manipulation Arguments’, 7. I leave to one side the question of whether it may sometimes be justified for one without standing to engage in blame to pursue a consequential end.

Roberts, Roberts and Zuckerman’s Criminal Evidence , p. 205.

R v Grant [2009] 2 SCR 353, [84]. Cf. ibid. , [220].

I use ‘legitimately’ here, and later on in the paper, as a shorthand for ‘without problematised standing’.

See, further: Paul H Robinson, ‘The Moral Vigilante and Her Cousins in the Shadows’ [2015] University of Illinois Law Review 401–478; Paul H Robinson and Sarah M Robinson, Shadow Vigilantes: How Distrust in the Justice System Breeds a New Kind of Lawlessness (New York, NY: Prometheus Books, 2018); Antony Bottoms and Justice Tankebe, ‘Beyond Procedural Justice: A Dialogic Approach to Legitimacy in Criminal Justice’ (2012) 102 Journal of Criminal Law and Criminology 119–170, 148.

Tadros, ‘Poverty and Criminal Responsibility’, 410–413.

Cf. TRS Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford: Oxford University Press, 2003), 274.

An anonymous referee suggested an alternative account: the would-be blamer’s standing to blame is problematised until their own wrongdoing is addressed, but an adequate response is to point out that the would-be target’s wrongdoing is more serious (and thus must be dealt with more urgently). Either way, an equivalence in severity of wrongdoing is required before the would-be blamer is disabled from blaming.

Dworkin, ‘Morally Speaking’, 187. See, too, Ori Herstein, ‘A Normative Theory of the Clean Hands Defense’ (2011) 17 Legal Theory 171–208, 193.

See, too, Cristina Roadevin, ‘Hypocritical Blame, Fairness, and Standing’ (2018) 49 Metaphilosophy 137–152.

Wallace, ‘Hypocrisy’, 326–327.

See, also, Gustavo A Beade, ‘Who Can Blame Whom? Moral Standing to Blame and Punish Deprived Citizens’ (2019) 13 Criminal Law and Philosophy 271–281.

See Denise M Dudzinski, ‘Integrity: Principled Coherence, Virtue, or Both?’ (2004) 38 Journal of Value Inquiry 299–313, 303.

Fritz and Miller, ‘Hypocrisy’, 122. See, also: Kyle G Fritz, ‘Hypocrisy, Inconsistency, and the Moral Standing of the State’ (2019) 13 Criminal Law and Philosophy 309–327; Wallace, ‘Hypocrisy’, 338.

The scope of the violations that will be relevant depends on one’s views on the breath of ‘hypocrisy’.

A Hypocrisy -based account would thus (ignoring concerns of ‘separation’ for now) justify consideration of the seriousness of the defendant’s alleged crime when assessing whether to exclude evidence or stay proceedings, a matter which is controversial in the context of other theories of exclusion/stays. See Andrew Ashworth, ‘Exploring the Integrity Principle in Evidence and Procedure’ in Peter Mirfield and Roger Smith (eds), Essays for Colin Tapper (London: Butterworths, 2003).

E.g. Sorrells v US , 287 US 435, 446 (1932). See, also, ibid. , 455, 457.

US v Payner , 447 US 727, 734 (1980).

Olmstead v US , 277 US 438, 484 (1928).

Payner , 748.

Aikin, ‘ Tu Quoque ’, 161.

E.g. R v Mack [1988] 2 SCR 903, 938.

I am grateful to Patrick Tomlin for this point.

One might contrast jurisdictions where a judge oversees the police investigation. Even here, ‘separation’ potentially remains an issue unless the instructing judge orders investigatory wrongdoing.

The argument can also be put in terms of the polity on whose behalf these institutions act: Duff, ‘Estoppel and Other Bars to Trial’, 253.

See Ashworth, ‘Exploring the Integrity Principle’, 112.

See, e.g., the ‘fragmentary model’ discussed in: Ruth W Grant, ‘The Exclusionary Rule and the Meaning of Separation of Powers’ (1991) 14 Harvard Journal of Law and Public Policy 173–204; Thomas S Schrock and Robert C Welsh, ‘Up from Calandra : The Exclusionary Rule as a Constitutional Requirement’ (1974) 59 Minnesota Law Review 251–383; Hock L Ho ‘The Criminal Trial, The Rule of Law and the Exclusion of Unlawfully Obtained Evidence’ (2016) 10 Criminal Law and Philosophy 109–131, 115–117; Hock L Ho, ‘Liberalism and the Criminal Trial’ (2010) 32 Sydney Law Review 269–287, 244–247.

Mike Redmayne, ‘Theorizing the Criminal Trial’ (2009) 12 New Criminal Law Review 287–313, 309.

John Jackson, ‘Human Rights, Constitutional Law and Exclusionary Safeguards in Ireland’ in Paul Roberts and Julie Hunter (eds), Criminal Evidence and Human Rights: Reimagining Common Law Procedural Traditions (Oxford: Hart, 2012), 138.

Paul Roberts, ‘Normative Evolution in Evidence Exclusion: Coercion, Deception and the Right to a Fair Trial’ in Paul Roberts and Julie Hunter (eds), Criminal Evidence and Human Rights: Reimagining Common Law Procedural Traditions (Oxford: Hart, 2012), 177.

See: Ashworth, ‘Exploring the Integrity Principle’, p. 112 (though note that Ashworth recognises this as only one form of the separation thesis); Duff et al., The Trial on Trial , p. 226. Often, this argument is rendered less ‘simplistic’ by requiring that pre-trial wrongdoing is dealt with adequately before evidence can be admitted: ibid. , 236; James Chalmers and Fiona Leverick, ‘When Should a Retrial be Permitted After a Conviction is Quashed on Appeal?’ (2011) 74 Modern Law Review 721–749, 735; Alejandro Chehtman, The Philosophical Foundations of Extra-Territorial Punishment (Oxford: Oxford University Press, 2010), 149.

E.g. R v Sang [1980] AC 402, 436, 454–455; R v Horseferry Road Magistrates’ Court, ex parte Bennett [1994] AC 42, 70–71. See, also, Gäfgen v Germany (2011) 52 EHRR 1.

Of course, in the real-world criminal justice system found in UK and USA jurisdictions, the more empirically likely outcome is a guilty plea.

Herbert L Packer, ‘Two Models of the Criminal Process’ (1964) 113 University of Pennsylvania Law Review 1–68, 11.

Ashworth, ‘Exploring the Integrity Principle’; Allan, Constitutional Justice , 272; Ho, ‘Unlawfully Obtained Evidence’, 117.

Redmayne, ‘Theorizing the Criminal Trial’, 305; John D Jackson and Sarah J Summers, ‘ I ntroduction’ in John D Jackson and Sarah J Summers (eds), Obstacles to Fairness in Criminal Proceedings: Individual Freedoms and Institutional Forms (Oxford: Hart, 2018), 16; Hock L Ho, ‘Exclusion of Wrongfully Obtained Evidence: A Comparative Analysis’ in Darryl K Brown, Jenia I Turner and Bettina Weißer (eds), The Oxford Handbook of Criminal Process (Oxford: Oxford University Press, 2019), 827.

Tony Ward and Clare Leon, ‘Excluding Evidence (or Staying Proceedings) to Vindicate Rights in Irish and English Law’ (2015) 35 Legal Studies 571–589, 581.

R v Ridgeway (1995) 184 CLR 19, [18]; R v Humphrys [1977] AC 1, 26.

I am grateful to an anonymous reviewer for suggesting this response.

Fritz and Miller nevertheless recognise that their account can conceivably cover third party cases: see Fritz and Miller, ‘Hypocrisy’, 132–133.

See, further, Todd, ‘Moral Standing to Blame’, 362.

The analogy is imperfect, as will be demonstrated below: the courts cannot, at least at present, punish the police on their own initiative.

I assume that the other conditions of standing are present – e.g. it is A’s ‘business’ to seek to condemn B and C. The awareness condition is important: A is not a hypocrite in seeking to blame B without first actively uncovering every other person who has Ф-ed. (or worse)

See, similarly, Fritz, ‘The Moral Standing of the State’, 318–20; Todd, ‘Moral Standing to Blame’, 368.

The caveats in n. 84 apply, mutatis mutandis, to Inconsistent Blame .

I do not have space here to explore how far this vice might be stretched. It seems relevant to abuse of process arguments based on prosecutorial decision-making more generally.

I am not convinced that this is true of all standing arguments, for instance those premised on complicity in the wrongs of another. If the police steal evidence from a suspect, excluding that evidence prevents complicity in that wrongdoing, and might remove a potential problem of judicial standing.

Petch and Coleman [2005] 2 Cr App R 40, [47].

Roberts, Roberts and Zuckerman’s Criminal Evidence , pp. 204–205.

[2011] 1 WLR 1837.

Ibid ., [84].

Ibid ., [37]. See, similarly, ibid. , [53]. Lord Rodger thought that, if the disciplinary regime had been applied properly , the absence of action against the police was not a relevant factor: ibid. , [43].

An anonymous reviewer prompted me to think about how the courts can bring it about that there is consistency in treatment by granting a stay of proceedings. But this does not really address the underlying problem of standing: it merely brings it about that the party with compromised standing cannot profit from its wrongdoing. The underlying inconsistency remains.

See, e.g., Todd, ‘Moral Standing to Blame’, 357.

Duff, ‘Blame’, 128; Tadros, ‘Poverty and Criminal Responsibility’, 401.

Angela M Smith, ‘On Being Responsible and Holding Responsible’ (2007) 11 Ethics 465–484, 480; James Edwards, ‘Standing to Hold Responsible’ (2019) 16 Journal of Moral Philosophy 437–462, 460. See, similarly, People v Cahan , 282 P2d 905, 910 (CA, 1955).

Therefore consequentialists are thought to struggle to explain hypocrisy’s problematic nature: see Soifer and Szabados, Hypocrisy , ch 5.

Wallace, ‘Hypocrisy’, 310.

Edwards, ‘Standing to Hold Responsible’, 460–461.

TM Scanlon, Moral Dimensions: Permissibility, Meaning, Blame (Cambridge, MA: Harvard University Press, 2008), 176. Cf. Warren v Attorney-General of Jersey [2012] 1 AC 22, [45], [61], [71], [78], [81]–[83].

RA Duff, ‘Moral and Criminal Responsibility: Answering and Refusing to Answer’ in DJ Coates and NA Tognazzini (eds), Oxford Studies in Agency and Responsibility: Vol 5 (Oxford: Oxford University Press, 2019), 187.

Indeed, prosecution of errant officials might in some cases be mandated by human rights law (see, e.g., Gäfgen ).

Maxwell , [37].

Evidence Act 1995, s 138(3)(g). See, too, New Zealand’s Evidence Act 2006, s 30(3)(f).

See Michael Gorr, ‘Entrapment, Due Process and the Perils of “Pro-active” Law Enforcement’ (1999) 13 Public Affairs Quarterly 1–25, 16–17.

See: Adrian Zuckerman, ‘Illegally-obtained Evidence – Discipline as a Guardian’ (1987) 40 Current Legal Problems 55–70, 58; Steven Penney, ‘Taking Deference Seriously: Excluding Unconstitutionally Obtained Evidence under s 24(2) of the Charter’ (2004) 49 McGill Law Journal 105–144, 120–124; Taslitz, ‘Hypocrisy, Corruption and Illegitimacy’, 426–429. Cf. Laudan, Truth, Error and Criminal Law , 229–230.

Stephen Fulcher, Catching a Serial Killer: My Hunt for Murderer Christopher Halliwell (London: Ebury Press, 2017).

A Confession (ITV, 2019).

One suggestion, made to me by Mark Reiff, is to grant injunctions against giving evidence against police officers/departments who have engaged in wrongdoing. If this applies in relation to the offence the misconduct is connected to, its effect is indistinguishable from exclusion, although it may be less dramatic than a stay. If it concerns future cases, it is arguably overkill: if those cases do not involve wrongdoing by officials, then there is no clear reason (based on ‘standing’, or otherwise) to exclude evidence or stay the proceedings.

E.g. Mack , 942. This is a fine line: Warren v Attorney-General for Jersey [2012] 1 AC 22, [37].

Cf. Model Penal Code and Commentaries: Official Draft and Revised Comments , Pt 1, Vol 1 (Philadelphia, PA: American Law Institute, 1980), 407.

It has been argued that the English courts’ rejection of the Separation Thesis (in both guises) in the 1980s followed growing disillusionment with the police’s ability to regulate themselves: David Feldman, ‘Regulating Treatment of Suspects in Police Stations’ [1990] Criminal Law Review 452–471, 468.

Hudson v Michigan , 547 US 586, 598–599 (cf. 609–610) (2006).

Acknowledgements

I am grateful for feedback from audiences at the Universities of Cambridge, Edinburgh and Glasgow, and the LSE. I am further grateful to James Chalmers, James Edwards, Fiona Leverick, Matt Matravers, Federico Picinali, Hannah Quirk, Jonathan Rogers, Alex Sarch, and Danny Statman for separate written criticisms of earlier drafts.

Author information

Authors and affiliations.

University of Cambridge, Cambridge, UK

Findlay Stark

You can also search for this author in PubMed   Google Scholar

Corresponding author

Correspondence to Findlay Stark .

Additional information

Publisher's note.

Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.

Rights and permissions

Open Access This article is licensed under a Creative Commons Attribution 4.0 International License, which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons licence, and indicate if changes were made. The images or other third party material in this article are included in the article's Creative Commons licence, unless indicated otherwise in a credit line to the material. If material is not included in the article's Creative Commons licence and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder. To view a copy of this licence, visit http://creativecommons.org/licenses/by/4.0/ .

Reprints and permissions

About this article

Stark, F. Standing and Pre-trial Misconduct: Hypocrisy, ‘Separation’, Inconsistent Blame, and Frustration. Criminal Law, Philosophy (2023). https://doi.org/10.1007/s11572-023-09688-2

Download citation

Accepted : 23 June 2023

Published : 07 July 2023

DOI : https://doi.org/10.1007/s11572-023-09688-2

Share this article

Anyone you share the following link with will be able to read this content:

Sorry, a shareable link is not currently available for this article.

Provided by the Springer Nature SharedIt content-sharing initiative

• Exclusionary rules
• Stays of proceedings
• Find a journal
• Publish with us
• Track your research