Alright, this post will help you understand Chapter 9 of the Concept of Law. I’ll try to make Jurisprudence interesting but the success of this subject is contingent upon your readings. Keep this as a backup summary. Also I’ve added a question from the past paper towards the end. Any questions, just post them as comments and I’ll get back to you. Toodles!
So here it goes, in his preface, Hart discusses three elements:
2. Coercion &
He says that one of his aims is to show that these three elements are different but related social phenomena.
Hint: Try to always draw connections between different chapters of Hart’s Concept of Law. See we are on chapter 9, but we drew a reference from the Preface. You have to show the examiner that you know your stuff. Plus your analysis will get you the most marks.
We have already covered the connection between Law and Coercion (when we did Hart v Austin). In this chapter we will focus on the relationship between Law and Morality.
Hart is a legal positivist. Now positivists work with descriptive jurisprudence and they assert that law should be considered independent of what morality is. Because if we include moral values in law then law will lose its essential characteristic of being objective and it will then be reduced to something that is subjective (Alright, this is important and we’ve already covered this when we did Natural Law).
Therefore, Hart in his Preface resolutely asserts his stance on legal positivism claiming that laws should be divorced from morals and both law and morals exist in two separate realms further claiming that this separation must be maintained.
And Hart like his predecessors, both Bentham and Austin believes in maintaining this separation ( Do you remember the Separation thesis?) as Austin has formulated a positivist stance, where he asserted that ‘the existence of law is one thing, its merit or demerit another’.
Hint: Please refer to Hart’s predecessors. Whatever you’ve covered earlier MUST NOT go to waste.
But there’s another thing, although the aforementioned positivist stance is about separating ‘is’ from ‘ought’, Hart unlike his predecessors did tilt towards morality as being not an integral part of law but at the same time he believed that morality had an influence on law and he called this ‘the minimum content of natural law’ and he discussed this in detail in Chapter 9 of the Concept of Law.
“Hart unlike his predecessors did tilt towards morality as being not an integral part of law but at the same time he believed that morality had an influence on law and he called this ‘the minimum content of natural law”’
Now, it is an interesting observation that where on the one hand, Hart’s predecessors (i.e legal positivists) criticized natural lawyers because they had blurred this apparently simple and vital distinction of law as it ‘is’ from law as it ‘ought’ to be, Hart on the other hand got himself labelled as a ‘soft-positive’ (since he included a bare minimum part of natural law in his work) when he effectively balanced his positivist perspective with an insight into the way in which morality influences the development of modern law.
Now its important to discuss his predecessors further as this will highlight Hart’s stance further on the Minimum Content of Natural Law as he has been criticized not just by Naturalists but also by Positivists on this stance of his. Dealing with Austin on this subject matter, Hart claims in his paper titled ‘Positivism & Separation of Law and Morals’, that for Austin, the fundamental principles of morality were God’s commands, to which utility was an index and besides this, there was the actual accepted morality of a social group or ‘positive’ morality.
Hint: Please note the importance of an academic writing. I have included here an article of Hart’s and this is impressive to the examiner since this question deals directly with Harts view on this particular area. You’ve honestly hit the jackpot by adding in Hart as a primary source through his book (i.e. chapter 9 of the Concept of Law) and now you’re adding in Hart as a secondary source as well.
Dealing with Bentham, Hart, in the same paper says that Utilitarians accept many of the things that might be called “the intersection of law and morals”. He further claims that they never deny that as a matter of historical fact, the development of legal systems had been powerfully influenced by moral opinion, and conversely that moral standards had been profoundly influenced by law. Discussing those two, Hart added that an essential connection between law and morals emerged, if we examined how laws, the meanings of which are in dispute, are interpreted and applied in concrete cases.
William C. Starr in his paper titled ‘Law and Morality in H.L.A Hart’s Legal Philosophy’ writes that for natural law there is a necessary and a contingent relationship between law and morality. Also, he states that according to the natural law theory, when there is a conflict between natural law and human law, natural law must take precedence. When he moves on to Hart, he says that Hart believes that certain principles of justice are required for a legal system; and that Hart takes the relationship between law and morality extremely seriously and that Hart finds that there is much in natural law theory which any philosophically defensible theory of law must include. The writer sums it up by adding that Hart is:
1. An analytical legal philosopher as well as
2. A critical moral philosopher
Hint: Its always advised to add in the view of other jurists as well as other academics as we’ve done above. This leaves the examiner with an impression that you have done your readings well.
Why Hart is an analytical philosopher is because he believes that the combination of two different types of rules make up a legal system. Hart calls these two rules as primary and secondary rules, and asserts their distinction and existence when he says…”their union (i.e. the union of primary and secondary rules) may be justly regarded as the “essence” of law, though they may not always be found together whenever the word “law” is correctly used.” Hart, furthermore called the ‘union’ of these two rules as the ‘heart’ of the legal system. For him, the Primary Rules are the ‘duty imposing rules’ and they can also be classified as the ‘basic rules’. The Secondary Rules on the other hand are ‘power conferring rules’. They state the manner in which primary rules may be recognized, changed and adjudicated. These two rules exist in a parasitical relationship with each other as they are the edifice of the legal system.
Why Hart is a soft positivist and a critical moral philosopher is because in his formation of what a legal system constitutes, he adds in the element of morality and calls it ‘the Minimum content of Natural Law’. By doing so, positivists believe that his view has contaminated legal positivism and naturalists like Fuller find him as an easy bait to criticize.
Hart believed that the ‘minimum content of natural law’ is a part of the legal system.
Hint: From the aforementioned statement ^ (i.e Hart believed that the ‘minimum content of natural law’ is a part of the legal system) we have to realize that Hart doesn’t say that the minimum content ‘must’ be a part of the legal system but rather it ‘actually’ is. Otherwise, Hart would himself have committed the is/ought fallacy.
Where Hart talks about the union of the primary and secondary rules as an edifice of the legal system, Hart adds in the same legal system five truisms and labels them as those crucial elements in any legal legal system which it cannot do without. Professor Morrison says that according to Hart, there is a ‘core indisputable truth’ in the doctrines of natural law, and compares Hart with Hobbes when he identifies what minimum sorts of rules are required by the basic elements of the human condition.
The minimum content of natural law is thus satisfied through certain truisms. There are five truisms in Harts minimum content of natural law and they are the following:
Limited Altruism &
Limited Understanding and Strength of Will
Now elucidating further on the aforementioned five truisms; one of Hart’s five truisms is called ‘Human Vulnerability’. By this he means that human beings are (as it is already self-evident) susceptible to harm and therefore they need protection.
Another truism is called ‘Approximate Equality’ which surrounds itself with equality of human beings. To naroow it down, as Morrison says ‘We are equally at risk from each from each other. The law understands that there may be some giants among pygmies and that one of the purposes of the legal system is to protect those who are weak from the unlawful use of force used by the strong. What is important is to understand the existence of a legal system to cater to such situations, but it must at the same time be appreciated that at certain times it may be ‘difficult to persuade the strong to accept the limitation of the law.
A third truism is called ‘Limited Resources’. Hart here means that wants are unlimited and the resources to fulfill those wants are scarce. Morrison defines this as ‘the need for mechanisms to ensure that competition does not trigger reactions which result in social chaos. In short, the concept of limited resources governs our actions and through law, a sense of security will be provided to safeguard ones personal resources.
The fourth truism is called ‘Limited Altruism’. William C. Starr brings in what James Madison said with regards to altruism (meaning of altruism: disinterested and selfless concern for the well-being of others) – “If men were angels, there would be no need for government’ and he adds that Hart’s addition could easily be that ‘If men were devils, there would be no need for government either’. Thus both law and morality force us to look beyond ourselves and help us coexist peacefully with others in society.
The fifth and last truism is called ‘Limited Understanding and Strength of Will’. Hart here allows some degree of paternalism. William C. Starr in the aforementioned paper adds that examples of paternalistic laws are statutes which require one to wear a helmet while riding a motor bike or a seat belt while driving etc.
Therefore Hart maintains that there is a ‘minimum content of natural law’ in all legal systems. For him, a legal system should subscribe to these truisms. Where on the one hand positivists are adamant to the adherence of separation thesis, Hart takes a semi-neutral stance and is thus called a soft-positivist.
p.s Please remember that these are notes on Chapter 9 which have been created by me. They might have mistakes and I apologize for that in advance and since I’m the only proof reader Ive got, my proof reader is going to sleep. These just give the defence of Hart being a soft positivist. Now please read the other side. Answers should have greater depth of course. Please also give me some feedback so I can work on the quality of my writings.
A question that can be attempted on this chapter is: “In The Concept of Law, Hart effectively balances his positivist perspective with an insight into the way in which morality can influence the development of modern law”. Discuss.