Separation Thesis and Connection Thesis

The separation thesis and the connection thesis tell us how the concept of law is to be defined. They formulate the result of a line of reasoning without giving voice to the arguments behind it.

·“’ One might think of a third group of arguments, namely, empirical arguments. On closer inspection, however, one sees that, where the concept of law is being defined in terms of either the separation thesis or the connection thesis, empirical arguments become components of analytical or normative arguments, h is an empirical thesis that a legal system that

The most important analytical argument for the positivistic separation thesis is that there is no conceptually necessary connection between law and morality. Every positivist must defend this thesis, for if it is granted that a conceptually necessary connection between law and morality docs exist, then it can no longer be said that the definition of law is to exclude moral elements. By contrast, the non-positivist is free in arguing at the analytical level. He can either claim a con­ceptually necessary connection or not. If he succeeds in spell­ing out a conceptually necessary connection, he has settled the debate in his favour. If he fails in spelling out or does not claim a conceptually necessary connection, he has not yet lost the debate. He can appeal to normative arguments in attempting to support his thesis that the definition of the concept of law is to incorporate moral elements.

It is a normative argument that supports the separation thesis or the connection thesis when it is stated that, to attain a certain goal or to comply with a certain norm, it is necessary to exclude or to include moral elements in the concept of law. A separation or a connection justified in this way may be called ‘normatively necessary'.⁴⁰ Il is a normative argument, for example, when it is stated that only the separation thesis protects neither the life nor the liberty nor the property of any legal subject has no prospect of long-term validity.

¹⁰ Normative necessity is strictly to be distinguished from conceptual necessity. That something is normatively necessary means nothing other than that it is commanded. One can. without contradicting oneself, chal­lenge the validity of a command but not the existence of a conceptual necessity. It is clear that only in a broader sense, then, is normative necessity a necessity.

leads to linguistic and conceptual clarity or guarantees legal certainty, or when it is established that the problems of statu­tory injustice can best be resolved with the help of the connec­tion thesis.

In recent debates about the concept of law, the prevailing view has been that the expression ‘law’ is so ambiguous, so vague, (hat nothing in the debate about legal positivism can be settled by means of conceptual analysis.⁴¹ that what is at stake here is simply ‘a normative determination, a definitional postulate’.⁴² This kind of concept formation can, by defin­ition. only be justified by normative arguments or consider­ations of expediency, a thesis presupposing the thesis that a connection between law and morality is neither conceptually impossible nor conceptually necessary.

¹¹ Sec Oil. Der Rechtspositivismus (n. 4 above), at 142-53.

¹² Hocrstcr, PT? 2481.

The thesis runs: first, there is a conceptually necessary con­nection between law and morality, and, second, there are normative arguments for including moral elements in the concept of law, arguments that in part strengthen and in part go beyond the conceptually necessary connection. In short, there are conceptually necessary as well as normatively necessary connections between law and morality.

B.