{"id":81049,"date":"2024-12-31T05:19:37","date_gmt":"2024-12-31T05:19:37","guid":{"rendered":"https:\/\/essays.homeworkacetutors.com\/hla-hart-and-the-concept-of-law-philosophy-essay\/"},"modified":"2024-12-31T05:19:37","modified_gmt":"2024-12-31T05:19:37","slug":"hla-hart-and-the-concept-of-law-philosophy-essay","status":"publish","type":"post","link":"https:\/\/www.colapapers.com\/us\/hla-hart-and-the-concept-of-law-philosophy-essay\/","title":{"rendered":"Hla Hart And The Concept Of Law Philosophy Essay"},"content":{"rendered":"
\n

In the preface of The Concept of Law, Hart wrote \u201cthat the aim of this book has been to further the understanding of law, coercion, and morality as different but related social phenomena\u201d. In this paper however, I would be focusing only on Hart\u2019s views of the relationship between law and morality and support my opinion in agreement or disagreement with several other views in this area.\u00a0[2<\/a>]<\/span>\u00a0<\/p>\n

Hart\u2019s general account of law is not to evaluate or justify on moral or other grounds\u00a0[3<\/a>]<\/span>\u00a0: he is involved in analytical jurisprudence and descriptive sociology where his central assignment is to recognize the nature of a legal system at anywhere and any time in history.\u00a0[4<\/a>]<\/span>\u00a0As a positivist, he treats law as morally neutral.\u00a0[5<\/a>]<\/span>\u00a0Could something so nasty that there could be no moral justification be valid law? Could provisions that promote discrimination be valid law? Hart provided the answer yes.\u00a0[6<\/a>]<\/span>\u00a0<\/p>\n

Thus, the main issue of this paper would be whether Hart\u2019s account on law and morality survive other opinions\u2019 attack.<\/p>\n

Hart\u2019s most prominent critic, Dworkin\u00a0[7<\/a>]<\/span>\u00a0<\/h2>\n

Dworkin criticized Hart based on two issues: rights and duties and the identification of the law. In relation to rights and duties, Dworkin holds the view \u201cthat there must be prima-facie moral grounds for assertions of the existence of legal rights and duties\u201d and that \u201clegal rights must be understood as a species of moral rights\u201d\u00a0[8<\/a>]<\/span>\u00a0while Hart maintains that there could be legal rights and duties that have no moral justification whatsoever due to their supreme importance to human beings.\u00a0[9<\/a>]<\/span>\u00a0<\/p>\n

With regards to the identification of the law, Hart concedes that laws may be identified without any reference to morality.\u00a0[10<\/a>]<\/span>\u00a0So long as rules are accepted and enforced by authorities, those rules are valid law.\u00a0[11<\/a>]<\/span>\u00a0Dworkin however, drew a distinction between interpretive and preinterpretive law\u00a0[12<\/a>]<\/span>\u00a0: there are possibilities of existence of evil legal systems without moral justifications but when this is so, we may resort to \u201cinternal skepticism\u201d and deny such systems as laws.\u00a0[13<\/a>]<\/span>\u00a0<\/p>\n

Hart replies to this: \u201c\u00e2\u20ac\u00a6the distinction between interpretive and preinterpretive law concedes rather than weakens the positivist\u2019s case\u00e2\u20ac\u00a6in a descriptive jurisprudence the law may be identified without reference to morality\u2026Dworkin\u2019s message gives no reason for the positivist to abandon his descriptive enterprise, nor is it intended to do so\u00e2\u20ac\u00a6for the law may be so evil that \u2018internal skepticism\u2019 is in order, in which case the interpretation of the law involves no moral judgment and the interpretation as Dworkin understands it must be given up.\u201d\u00a0[14<\/a>]<\/span>\u00a0<\/p>\n

Natural law<\/h2>\n

Natural lawyers now claim: \u201ccontemporary voices tell us we must recognize something obscured by the legal \u201cpositivists\u201d whose day is now over\u00e2\u20ac\u00a6there is a \u2018point of intersection between law and morals\u2019\u00e2\u20ac\u00a6\u201d\u00a0[15<\/a>]<\/span>\u00a0<\/p>\n

This is the sharpest distinction between Hart and natural lawyers. The Thomist classical explanation of natural law is said to be of twofold contention: existence of principles of true morality or justice, discoverable by human reason without aid of revelation although they have a divine origin and that man made laws which conflict with these principles are not valid law.\u00a0[16<\/a>]<\/span>\u00a0If this is correct, Hart\u2019s famous essay Positivism and the Separation of Law and Morals would be bizarre.<\/p>\n

Taking Finnis\u2019s view (as he expressed natural law in fresh terms) as example, running in parallel with the Thomist\u2019s tradition but more elaborately worked out,\u00a0[17<\/a>]<\/span>\u00a0he considers that natural law theory need not be of the view that unjust laws are not law but believes that sound laws are to be derived from their principles gain from the force of reasonableness and not circumstances.\u00a0[18<\/a>]<\/span>\u00a0He does not consider the validity of unjust laws as an important matter, rather concludes that a ruler\u2019s authority to make laws rests on the needs of the common good and if his authority is applied against this, then his laws lack the authority they would otherwise have and thus creates no obligation to obey them, so might render ineffective the just parts of the legal system.\u00a0[19<\/a>]<\/span>\u00a0The ruler is still under an obligation to repeal those unjust laws.\u00a0[20<\/a>]<\/span>\u00a0<\/p>\n

If we turn to consider Hart\u2019s view, we may see that his is rather different. In the chapter of Laws and Morals,\u00a0[21<\/a>]<\/span>\u00a0Hart speaks about the issue of natural law and legal positivism where he identifies legal positivism with \u201cthe 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.\u201d\u00a0[22<\/a>]<\/span>\u00a0Although from this we could see that Hart has no reason deny the influence of morality in the content of law, but legal validity of a rule is dependent on the rule\u2019s derivability from some basic conventional criterion of legal validity accepted in a particular legal system.\u00a0[23<\/a>]<\/span>\u00a0Hence, \u201cthe mere fact that a rule is just or reasonable will not make it a law; nor does the injustice of a rule demonstrate that it is not a law.\u201d\u00a0[24<\/a>]<\/span>\u00a0Even if law and morals are closely bound up in a system, it will always be possible to separate them in some conceivable legal system.\u00a0[25<\/a>]<\/span>\u00a0<\/p>\n

Law would still be valid even if it is morally heinous; it is not an issue of the intention of private citizens in accepting the law.\u00a0[26<\/a>]<\/span>\u00a0Hart would ask: \u201cIs is worth going through punishments and coercion due to disobedience just because a law is evil in the eyes of morality?\u201d Even if the answer to this question is yes and leads to a corrupted and failed legal system does not mean that the legal system has never existed or has never been valid.\u00a0[27<\/a>]<\/span>\u00a0<\/p>\n

The minimum content of natural law<\/h2>\n

Although Hart does agree with Austin\u2019s formulated doctrine that \u201cthe existence of law is one thing; its merit or demerit is another\u201d\u00a0[28<\/a>]<\/span>\u00a0(the separability thesis) which has been claimed to be false by the traditional natural law doctrine because moral considerations form a necessary condition of legal validity\u00a0[29<\/a>]<\/span>\u00a0, Hart also talked about something called the \u201cminimum content of natural law\u201d or in other words as we call him \u201cthe soft positivist\u201d. He tells us: \u201ctheories that approach law in purely formal terms, without reference to specific content or social needs\u201d have been proved to be inadequate.\u00a0[30<\/a>]<\/span>\u00a0<\/p>\n

There is a high concurrence in rules of which a legal system contains where there are rules prohibiting or regulating acts of human behaviour and daily transactions.\u00a0[31<\/a>]<\/span>\u00a0It is not coincidence that a legal system contains these rules but they are \u201cdictated by fundamental features of human nature and circumstance that they are said to be necessary\u201d.\u00a0[32<\/a>]<\/span>\u00a0They are \u201cnatural necessities\u201d.\u00a0[33<\/a>]<\/span>\u00a0It may then be the case that every legal system, immoral and evil it may be, would have to have some morally acceptable content, promoting some moral goods.\u00a0[34<\/a>]<\/span>\u00a0<\/p>\n

On the surface, we might find that Hart\u2019s argument seems to be rather similar to arguments of natural lawyers such as that of Finnis. Hart justifies the existence of his minimum content of natural law with the term of the value of \u201csurvival\u201d, although minimal, it is presupposed to be our inquiry to law because our concern is with continued existence and that as we live in a \u201cworld with each other\u201d, we understand the general value of survival.\u00a0[35<\/a>]<\/span>\u00a0We might relate this value with the status of an objective good, as Finnis seeks to demonstrate that this good is presupposed by our practical reasoning, providing us with \u201cintellectual access to the world of human life and action\u201d.\u00a0[36<\/a>]<\/span>\u00a0<\/p>\n

Hart\u2019s view on the other hand would most probably be criticized by hard positivist such as Austin, Kelsen and Bentham. Both Bentham and Austin insisted the need to distinguish with maximum clarity that, law as it is from law as it ought to be.\u00a0[37<\/a>]<\/span>\u00a0Bentham insisted on this distinction by reference to principles of utility only without characterizing morality.\u00a0[38<\/a>]<\/span>\u00a0Kelsen on the other hand had also insists that validity of the law has in no way concerned with its content but the law (a norm for Kelsen) is valid due to its creation in certain way.\u00a0[39<\/a>]<\/span>\u00a0His theory of \u201cdouble purity\u201d has been so pure that he ignored alien elements such as sociology and morality from the question of legal validity.\u00a0[40<\/a>]<\/span>\u00a0<\/p>\n

Hart\u2019s reply to Bentham and Austin might be that it is not because there is no distinction between what law is and what it ought to be but the word \u201cought\u201d reflects some standard of criticism and one of these is a moral standard, not all of them.\u00a0[41<\/a>]<\/span>\u00a0In relation to Kelsen\u2019s approach, he describes it as \u201cpurchasing analytical uniformity at the price of distorting the law\u2019s diverse social functions\u201d and that his purely formal analysis of the structure of the law obscures the difference between \u201ca law imposing a tax and a law creating a crime with a financial penalty\u201d.\u00a0[42<\/a>]<\/span>\u00a0<\/p>\n

Lon L. Fuller, a natural lawyer or a positivist?<\/h2>\n

Most readers of The Concept of Law might be in agreement with Fuller when he says: \u201cI must confess when I first encountered the thoughts of Professor Hart\u2019s essay, his argument seemed to me to suffer from a deep inner contradiction\u2026At times he seemed to be saying that the distinction between law and morality is something that exists, and will continue to exists\u2026other times, he seemed to be warning us that the reality of the distinction is itself in danger and if we do not mend our ways of thinking and talking we may lose a \u2018precious moral ideal\u2019, that of fidelity to law.\u201d\u00a0[43<\/a>]<\/span>\u00a0<\/p>\n

Fuller thinks that when Hart speaks of morality, he seems to have in mind all sorts of legal notions about \u201cwhat ought to be\u201d, without regards to their \u201csources, pretensions and intrinsic worth\u201d. He seems to assume that nasty aims have as much coherence as good ones.\u00a0[44<\/a>]<\/span>\u00a0Fuller refuses to accept this assumption and claims that coherence and goodness have more affinity than coherence and evil. Thus when men are compelled to justify their actions, the effect would be to pull those decisions towards goodness.\u00a0[45<\/a>]<\/span>\u00a0<\/p>\n

Fuller talked about external and internal morality as requirements in order for something to be called law as law itself is powerless in bringing this morality into existence.\u00a0[46<\/a>]<\/span>\u00a0The external sense is that the authority that makes law must be supported by moral attitudes while the internal sense is that the monarch has to accept the internal morality of law itself.\u00a0[47<\/a>]<\/span>\u00a0Fuller concentrates on his concept of \u201cinner morality of law\u201d that a legal system should provide for coherence, logic and order in order to command the fidelity of a right-thinking person.\u00a0[48<\/a>]<\/span>\u00a0A legal system that lacks this \u201cinner morality of law\u201d cannot constitute a legal system.\u00a0[49<\/a>]<\/span>\u00a0This theory however seems to be completely neglected by Hart although he made brief mention to the \u201cjustice in the administration of the law\u201d but dismisses it quickly as being irrelevant to his main work.\u00a0[50<\/a>]<\/span>\u00a0<\/p>\n

What then happens to Fuller\u2019s \u201cfidelity of law\u201d if some people, such as petty criminals or revolutionaries do not have feelings to this kind of fidelity?\u00a0[51<\/a>]<\/span>\u00a0\u201cPeople who claim that a posited law is not valid because it fails to meet certain external criteria muddy the water\u201d says Hart.\u00a0[52<\/a>]<\/span>\u00a0Hart argues that although Fuller\u2019s point would help in providing a separation between \u201cends\u201d (in working non-rationally only) and \u201cmeans\u201d (discussion of rational arguments), but the relevance of his argument has little to do with the separation between law and morals.\u00a0[53<\/a>]<\/span>\u00a0However, if we are to consider all evil things as not law, it would raise a bulk of philosophical issues before it could be accepted as valid law.\u00a0[54<\/a>]<\/span>\u00a0This would be troublesome because the right way to criticise the law should be by facing reality and not only base it on propositions of philosophy.\u00a0[55<\/a>]<\/span>\u00a0<\/p>\n

Moreover, in order for there to be a fusion between is and ought, two criteria must be fulfilled: \u201cought\u201d need not have to do with morals and that most importantly, it is only exceptional that \u201cone way of deciding a case is imposed upon us as the only natural or rational elaboration of some rule\u2026for most cases of interpretation, the language of choice between alternatives, \u2018judicial legislation\u2019 or even \u2018fiat\u2019\u2026better conveys the realities of the situation.\u201d\u00a0[56<\/a>]<\/span>\u00a0<\/p>\n

It is on the other hand, truly a paradox of the Hart-Fuller debate that both actually agree on the matter of deciding \u201cgrudge informers\u201d cases after the Nazi era that retroactive statute should be the answer although their reasons differ from each other.\u00a0[57<\/a>]<\/span>\u00a0Fuller was of the opinion that \u201c\u2026a statute as a way of symbolizing a sharp break with the past\u2026isolating a kind of cleanup operation from the normal functioning of the judicial process\u2026would become possible for the judiciary to return more rapidly to a condition in which the demands of legal morality could be given proper respect.\u201d\u00a0[58<\/a>]<\/span>\u00a0To a natural lawyer, laws that are in conflict with higher codes than decrees of man-made are void, while laws (for Fuller), as long as they fulfil the requirements of his inner morality of law would presumably be valid. In this case, Fuller poise as a positivist yet the tinge of natural law surrounds him.\u00a0[59<\/a>]<\/span>\u00a0<\/p>\n

Conclusion<\/h2>\n

Where then does Hart\u2019s concept stand? Although to the end of his life, Hart remained acknowledged about the possibility of similar objectivity in matters of morality, but he holds that one can be reasonably certain about law even when morality is being open to argument.\u00a0[60<\/a>]<\/span>\u00a0Dworkin\u2019s theory on the other hand seems to be illustrating in between positivism and natural law but it should be reminded that natural and positivism are best looked as independent views for different issues.\u00a0[61<\/a>]<\/span>\u00a0Neither Hart nor Dworkin wins this debate because they have been talking past each other, both about separate things.\u00a0[62<\/a>]<\/span>\u00a0<\/p>\n

Next is the confusion between the opinion of natural lawyers and Hart as Hart would agree with the classical natural theory where he does not think that \u201cpositive laws that are contrary to justice should be obeyed as a matter of conscience.\u00a0[63<\/a>]<\/span>\u00a0Although this is so, Hart would still not qualify as a natural lawyer because he is against the compulsion that human law has to be subordinated to natural law.\u00a0[64<\/a>]<\/span>\u00a0However, natural lawyers, such as Finnis would think that Hart is confused or even misunderstood the classical theory and that albeit Hart has presented himself as a supporter of legal positivism, he is aware that there is a fragment of truth in natural law thinking which he had attempted to single out.\u00a0[65<\/a>]<\/span>\u00a0<\/p>\n

On account of the \u201cminimum content of natural law\u201d, Epstein is of the opinion that \u201cthe function of any legal order is not just to minimize the risks to survival, but to maximize some overall measure of social happiness or welfare\u201d to which is far wider and complete than Hart knew about it.\u00a0[66<\/a>]<\/span>\u00a0He thinks that Hart\u2019s theory should instead be \u201cThe not so minimum content of natural law\u201d.\u00a0[67<\/a>]<\/span>\u00a0<\/p>\n

On his debate with Fuller, Hart uses his \u201cminimum content\u201d theory again to balance the perpetual tension between legal positivism and natural law.\u00a0[68<\/a>]<\/span>\u00a0If the question before us is what counts as valid law, Hart would have in one sense won the debate. \u201cWhether a given proposition would count as law is not decided solely by parsing its text to determine its meaning or moral worth\u2026content and form are quite beside the point. There is no method of visual or analytical inspection that separates those law-like statements that count as law from those statements that are bills that have yet to be enacted\u2026for the grand jurisprudential inquiry, institutional variations between countries do not matter\u201d.\u00a0[69<\/a>]<\/span>\u00a0<\/p>\n

In my opinion, I would agree with Hart on his concept of law and morality. Absolute separation of law and morality does not exist. Man-made laws that are good in the eyes of morality do not come into existence by coincidence because by nature, men do apply morality in their daily walk of life.\u00a0[70<\/a>]<\/span>\u00a0Despite this fact, Hart is telling us that in any legal system \u201claw is\u201d and this should be true because he is talking about the validity of the law and the existence of a legal system. Even if the law fails to be what it \u201cought\u201d to be, we could not deny its existence.\u00a0[71<\/a>]<\/span>\u00a0<\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

In the preface of The Concept of Law, Hart wrote \u201cthat the aim of this book has been to further the understanding of law, coercion, and morality as different but related social phenomena\u201d. In this paper however, I would be focusing only on Hart\u2019s views of the relationship between law and morality and support my […]<\/p>\n","protected":false},"author":8,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[10509,2048,3630,9887,10770,5853,3714,10768,9878,9815,6862,10757,1176,10769],"class_list":["post-81049","post","type-post","status-publish","format-standard","hentry","tag-academic-writing-bureau","tag-assessment-task-assignment-help","tag-australia-essays","tag-cn","tag-dissertation-uk-writings","tag-free-essay-samples","tag-i-need-help","tag-i-need-homework-help","tag-i-need-my-essay-completed-in-300-400-words","tag-masters-essay-service","tag-online-homework-help","tag-research-study-bay","tag-uae-essay-writers","tag-10769"],"_links":{"self":[{"href":"https:\/\/www.colapapers.com\/us\/wp-json\/wp\/v2\/posts\/81049","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.colapapers.com\/us\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.colapapers.com\/us\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.colapapers.com\/us\/wp-json\/wp\/v2\/users\/8"}],"replies":[{"embeddable":true,"href":"https:\/\/www.colapapers.com\/us\/wp-json\/wp\/v2\/comments?post=81049"}],"version-history":[{"count":0,"href":"https:\/\/www.colapapers.com\/us\/wp-json\/wp\/v2\/posts\/81049\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.colapapers.com\/us\/wp-json\/wp\/v2\/media?parent=81049"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.colapapers.com\/us\/wp-json\/wp\/v2\/categories?post=81049"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.colapapers.com\/us\/wp-json\/wp\/v2\/tags?post=81049"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}