Law & Morality
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jienleeLaw & Morality
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jienleeReport: Law & Morality
This report focuses on analysing the internal coherence of H.L.A. Harts position that the concept of law does not include morality.
As a positivist, Hart wanted a concept of law that is a description of what law is and free from moral evaluations. He defined law as a system of rules which the participants can endorse without making any moral judgments. The key to his concept is the rule of recognition, a set of requirements that officials has to follow to determine which rules should be part of the legal system. Once law has been determined, people who endorses the system would internalise the rules and obey them. Following this idea, it is the rule of recognition, not moral evaluations, that determines what law is. However, interestingly, Harts concept of law also includes a minimum content of natural law. On this point, he predicted that legal systems cannot last long if they do not offer a minimum level of protection possibly determined based on morality to its participants, such as laws against murder and theft.
Having laid down Harts concept, we can now analyse whether Harts concept is valid. Firstly, Harts interpretation of the separation of law and morality is often challenged by the exclusive legal positivists as being incoherent with positivism. Hart adopted the view of inclusive legal positivism, which argues that moral criteria can be required or sufficient to validate a legal rule in that particular system. He argued for his position based on how many legal officials talk about the law. In many systems, morality has been made into a rule that is required to validate a legal rule. For
instance, the legislature in Singapore has been debating about the law on homosexuality because it no longer seemed to be in congruent with the morality of the general public. It is also coherent with positivism because the officials are the ones who chose to include morality as one of the conventional criteria within the rule of recognition. Since it is based on officials choices, it can be changed without affecting Harts concept of law.
However, exclusive legal positivists criticised Harts concept because they do not think that morality can ever be part of the criteria validating a legal rule. They argued that the law would lose its legitimate authority. This is because law can only be an authority when people know what the law is without having to make any moral evaluations. Therefore, exclusive legal positivists argue that morality is only involved when judges are creating new law, and not when the law is already clear.
On this point, it could be argued that Harts position is closer to reality. How is it possible that an outdated law be changed without a possible recourse to moral evaluations? This would be a major problem for the legal systems in modern societies which have increasingly fluid and diverse moral systems. Hart argued that as long as the rules are generally obeyed and the rule of recognition is effectively accepted by the public, the law would still have the authority. This position would better reflect our current system given that most rules are generally internalised by the public, but certain rules gets reviewed once in a while due to morality. Most importantly, if the officials one day decide to make morality insufficient and unnecessary to validate rules in the system, they could probably do it. The legal system would then be closer
to the system proposed by exclusive legal positivists, which can be seen in several authoritarian states such as North Korea. Therefore, inclusive legal positivism has greater flexibility to better explain how law works in the reality.
Secondly, critics argued that how Hart defined the minimum content of natural law is incoherent with his main concept. Hart argues that there is a minimum standard based on facts that we know will always be true, such as human being vulnerable to physical attack. Thus, the law must always punish those who attack vulnerable people for no good reasons. Otherwise, the legal system will not be endorsed by the people after a while because it does not provide the basic protection according to their moral values.
The ambiguity of the term minimum led many natural law theorists to argue that Harts concept is either incongruent, or he supports their concept which requires rules to be validated by morality to form law. However, if one analyses the idea more deeply, one would realise that Hart was merely offering a prediction with the minimum content of law. He was not making a conceptual point. Moreover, since the minimum moral standard that he was suggesting is really so low that most rules will pass them, a more specific definition of minimum is probably unnecessary. Hence, Harts argument for minimum content of natural law is essentially coherent with his concept of law.
In conclusion, Harts theory is not just coherent, but also better than the exclusive legal positivists at explaining the reality of range of legal systems. However, Hart should probably have defined several terms such as the minimum content of natural law more clearly to avoid unnecessary challenges on his concept. Also, this does not mean that Harts concept of law that is separated from morality is better than what was proposed by Dworkin or Finnis, which will require more comparative analysis to decide.