With the last post of the series we will revise Hart’s understanding of the relationship between law and morality, positivism and naturalism.
For the previous posts refer to:
Jurisprudence: key authors in legal theory and political theory (a nutshell)
H.L.A. Hart and The Concept of Law (VERY briefly)
HLA Hart and The Concept of Law [Part 1 of 3]
HLA Hart and The Concept of Law [Part 2 of 3]
HLA Hart and The Concept of Law [Part 3 of 3]
The relationship between law and morality
The relationship between law and justice
Hart notes that there is long-standing distinction between various types of justice: distributive vs. corrective justice. Distributive justice is concerned with the background framework for transactions, while corrective justice focuses on specific occurrences. Distributive justice focuses on the individual vs. the collective, while corrective justice focuses on individual vs. individual.
In other words, distributive justice is about how we should allocate the burdens and benefits of social cooperation, while corrective justice is about how we should regulate and maintain the relations between individuals.
Substantive vs. formal or procedural or administrative justice. Substantive justice focuses on the outcome of particular cases, e.g. whether the outcome of the case is just under applicable moral standards. Formal justice focuses on principles of implementation, e.g. principles such as like cases should be treated alike.
The relationship between law and morality
Hart begins by noting some characteristics of morality and how these sometimes differ from the characteristics of law
a) moral requirements always relate to important matters (moral standards restrict strong passions; social pressure is applied not only to comply with moral standards but also to teach them to others; without compliance far-reaching and distasteful changes would occur in the lives of individuals)
b) moral rules evolve gradually, through slow decay or organic growth, they cannot be changed deliberately or abruptly by human fiat. In other words, unlike law, there are no rules of change associated with morality
c) honourable intentions (including reasonable care) are always an excuse in the realm of morality, and moral blame attaches only to voluntary acts
d) exhortation rather than force is the typical means of enforcing moral norms
e) conformance is encouraged by appeal to the intrinsic value of compliance rather than the consequences of breach (e.g. punishment)
f) there is no generally accepted rule of recognition for determining what the moral rules are
g) unlike law, morality consists solely of primary rules that are either accepted by each individual or they are not
Positivism and the minimum content of natural law
Legal Positivism is the simple contention that it is not necessary that laws reproduce or satisfy certain demands of morality, though in fact they have often done so.
No Legal Positivist claims that law cannot have moral content or that there is no moral significance to compliance with the rule of law but Legal Positivists deny that this must always be true.
Hart is an Inclusive Legal Positivist.
There are four possible ways that the word “moral” can be used:
a) to distinguish the moral from the immoral—i.e. evil. Legal positivists would say that law does not have to be morally commendable and can be wicked, whereas a natural law theorist would say that a wicked law is not law
b) to distinguish moral from factual. This is the point of debate between Hart and Dworkin. Dworkin says the inquiry into what the law is a moral inquiry but Legal Positivists say that the process of law ascertainment can be purely factual as well as partially or wholly moral
c) to distinguish moral from prudential: a moral decision is one that focuses on the interests of persons other than the decision-maker. A prudential decision focuses on the interests of the decision-maker. Positivists say that legal systems can be either prudential or moral, even though prudential systems might be pernicious
d) to distinguish moral from amoral or non-moral. Something is non-moral if it is not subject to moral evaluation. A decision can be non-moral if it has no non-trivial impact on someone other than the decision-maker
While legal positivists deny any necessary connection between law and morality in the three ways set forth above, no legal positivist contends that law is non-moral.
The minimum content of natural law can be derived from these basic facts about human beings and their nature:
1. approximate physical equality
2. human vulnerability
3. limited altruism and limited aggression
4. limited resources
5. limited understanding and strength of will
Given these basic facts about human beings and their nature, certain basic prohibitions are necessary for society to be viable:
a) rules restricting physical violence
b) rules requiring mutual forbearance and compromise
c) rules protecting property and enforcing contracts
d) rules imposing sanctions to ensure that those who voluntarily comply shall not be sacrificed to those who do not
These basic prohibitions coincide with moral prohibitions, so the two do converge and therefore any viable legal system will also have a basic moral core.
The minimum requirements of procedural law
The minimum requirements of procedural law (sometimes called principles of legality) include:
5. consistency in application
Because there is a high degree of correlation between these procedural requirements and the principles of justice, this leads some people to contend law also has a procedural as well as a substantive moral core. But Hart says these procedural principles are not principles of morality, but principles of efficiency, needed to make any effort at social control effective.
The moral obligation to obey the law
Another potential front on which to find a connection between law and morality is with regard to the moral obligation to obey the law. There are two types of moral reasons for acting: a) obligatory—i.e. binding in the sense that in the absence of more weighty counter-veiling moral reason a failure to act is morally wrong; b) supererogatory—i.e. action is morally desirable but not morally required.
Law and morality in adjudication
Positivism is also attacked on the grounds that it fails to accurately describe what judges do when they decide cases in the penumbra. I.e. rather than simply mechanically apply the law, judges create the law as they think it ought to be, and this shows there is no separation between law and morals.
This is the primary argument made against Hart by Ronald Dworkin. But deciding penumbral cases according to what the law ought to be does not mean that a judge must apply a moral standard even though he may do so, for there are other criteria beside moral criteria the judge may apply in deciding what the law “ought” to be. So once again, while judges may apply moral criteria in exercising their discretion there is no conceptual reason why they must do so, so Hart denies that that there is any necessary connection between law and morality here either.
Hart’s positive argument for separating law and morals
The goal of legal positivism is to distinguish between what the law is and what it ought to be. Confusing these two separate questions creates two separate problems: a) it leads to anarchy in the sense that it encourages people to believe that a law which is not what it ought to be is not law and therefore may be disregarded; b) it stifles criticism of the law because it suggests that if something is the law than it is what it ought to be by definition.
Thus if the question of law and morals is not separated, there is the danger on the one hand that law will lose its authority because of a divergence of opinion on what the law ought to be and on the other hand escape criticism because the question of what is moral will be supplanted by the question of what is law.