Hart started this chapter by recalling the different concepts that were discussed in previous chapters, such as threats, obedience, habits, etc. Other topics mentioned was the concept of a general habit that of a social rule, including the internal and external aspects of rules manifested by the people subjected to these rules. The elucidation then of the operations of law may be regarded as the essence of law, though they may not always be found together wherever the word lawis correctly used. Given all these, we then need to proceed in distinguishing between law and morality, and that there is a certain connection which is in some sense “necessary.” Advocates of this view would argue that even these elements are of subordinate importance, and that until the necessary relationship with morality is made explicit and its central importance seen, the shroudedness of the understanding of law cannot be dissipated.
The claim that between law and morality there is a necessary connection has many important variants, as there can be many possible interpretations of the key terms necessary and morality. The clearest of these interpretations is the Thomist Traditionof Natural Law, which comprises of the twofold contention: first, that there are certain principles of true morality or justice, and second, that man-made laws which conflict with these principles are not valid law.
The full assessment of the different theories asserting necessary connection between law and morals would lead far into moral philosophy, but something less than this may provide enough to form a reasoned view of the truth and importance of such claims. For this purpose what is needed is a separation and identification of some long-entangled issues, namely, first, the distinction within the general sphere of morality if the specific idea of justice, and second, the characteristics which distinguish moral rules and principles not only from legal rules but from all other forms of social rule or standards of conduct.
Part 1 (Principles of Justice): Hart starts this section by stating that justices is a distinct segment of morality, and that laws and the administration of laws may have or lack excellences of different kinds (i.e. what may be consider immoral may be considered just when contemplated among different persons, such as when many people are punished in an immoral way but such punishment is given to all). An example of justice then would be the appropriate expression of approval of a law distributing the burden of taxation according to wealth. It then can be seen that the difference between just and unjustis not of the same kind as the distinguishing of what is goodor bad.
The general principle in the application of the idea of justice is that individuals are entitled in respect of each other to a certain relative position of equality or inequality. Hence, justice is traditionally thought of as maintaining or restoring a balance, and its leading precept is often formulated as treating like cases alike. This statement however does not afford any determinate guide to conduct, as any set of human beings will resemble each other in some respects and differ from each other in others and until it is established what resemblance and differences are relevant, treating like cases alikemust remain an empty form. We must know then how and when to treat cases as alike, and only then can we criticize laws or other social arrangements as unjust
The complexity of justice can be said to consist of two parts, namely, first, a uniform or constant feature summarized in treating like cases alike, and second, a shifting or varying criterion used in determining when cases are alike or different. In this respect, justice then is relative to what it is being compared to in a case to case basis (i.e. what may be just in one situation, may not be unjust when put in another situation). The administration of justice then is related to law as it is being applied. This close connection between the two concepts has tempted some famous thinkers to identify justice with conformity to law, but Hart says this is an error unless “law” is given some specially wide meaning, for such an account of justice leaves unexplained the fact that criticism in the name of justice is not confined to the administration of the law in particular cases.
Hart then proceeds in giving examples that all humans are generally classified together (whether you’re of colour, white, etc.) both in criminal and civil law. If discrimination exists, it is often asserted that the class discriminated against lack certain essential human attributes, or it may be said that the demands of justice requiring their equal treatment must be overridden in order to preserve something held to be of greater value, which would be jeopardized if such discriminations were not made. If this is the case, the prima facie equality among men would be absent. It is therefore made clear that the criteria of relevant resemblances and differences may often vary with the fundamental moral outlook of a given person or society. The assertion for treating like cases alikecan be found in laws, such as those focusing on giving relief of poverty, graded income taxes, etc. Sometimes what is relevant are the capacitiesof persons for a specific function with which the exercise of the law in question may be concerned.
However, there are instances when treating like cases alikemay not be directly applied, such as in the case of compensationfor injuries done by one person to another. Laws on torts may be considered unjust for two reasons. Firstly, they might establish unfair privileges or immunities, such as when if only peers could sue for libel, or if no white person were liable to a coloured person for trespass or assault. Second, laws on torts while making no unfair discrimination, they might fail altogether to provide a remedy for certain types of injury inflicted by one person on another, even though morally compensation would be thought due.
The connection between the justice and injustice of the compensation for injury then lies in the fact that outside the law there is a moral conviction that those with whom the law is concerned have a right to mutual forbearance from certain kinds of harmful conduct. Its effect is to create among individuals a moral and, in a sense, an artificial equality to offset the inequalities of nature. Based on these discussions, it can be seen that sometimes, the demands of justice may conflict with other values, such as when a court, in sentencing a particular offender for a crime which has become prevalent, passes a severer sentence that that passed in other similar cases, and avowedly does this as a warning. In this scenario, the statement of treating like cases alikeis sacrificed for a caused considered to be greater than preserving the application of the statement.
Conversely, compensation can be set up to acts that are not considered to be morally wrong, and it is sometimes defended on the ground that it is in the interest of societythat those accidentally injured should be compensated (i.e. the concept of social justice is borne). An important juncture point between ideas of justice and social good or welfare should be noticed. Very few social changes or laws are agreeable to or advance the welfare of all individuals alike, and only laws which provide for the most elementary needs, such as police protection or roads, come near to this.
Some might argue that all that in fact could be meant by the claim that a choice between the competing claims of different classes or interests was made for the common good, was that the claims of all had been thus impartially surveyed before decision. Whether this is true or not, it seems clear that justice in this sense is at least a necessary condition to be satisfied by a legislative choice which purports to be for the common good. For here, what is justly distributedis not some specific benefit among a class of claimants to it, but impartial attention to and consideration of competing claims to different benefits.
Part 2 (Moral and Legal Obligation): Justiceis a segment of morality primarily concerned not with individual conduct but with the ways in which classes of individuals are treated, and this is what gives justice its special relevance in the criticism of law and of other public or social institutions. Hart characterizes it as the most public and the most legal of the virtues. However, laws may be condemned as morally bad simply because they require men to do particular actions which morality forbids individuals to do, or because they require men to abstain from doing those which are morally obligatory.
It is therefore necessary to characterize those principles relating to the conduct of individuals which belong to morality and make conduct morally obligatory. Two difficulties confront us here, namely, first, that the word moralityand all other associated terms like ethics, have their own considerable area of vagueness or open texture, and second, there may still be great philosophical disagreement as to their status or relation to the rest of human knowledge and experience.
Hart then proceeds by saying that there are four features which reflect different aspects of a characteristic and important function which such standards perform in social life or in the life of individuals, namely Importance,Immunity from deliberate change, Voluntary character of moral offenses, and The form of moral pressure. It may be objected that these features though necessary are onlynecessary and not sufficient to distinguish morality from certain rules or principles of conduct which would be excluded from morality by a more stringent test.
The first social phenomenon Hart focused on is the “themorality” of a given society or the accepted or conventional morality of an actual social group. The basic element in the accepted morality of a social group consists of the primary rules of obligation. These rules are distinguished from others both by the serious social pressure and by the considerable sacrifice of individual interest or inclination which compliance with them involves. When the step from the pre-legal into the legal world is taken – meaning social control now includes a system of rules containing rules of recognition, adjudication, and change – this contrast between legal and other rules hardens into something definite. The primary rules of obligation are now set apart from other rules, which continue to exist side by side with those officially recognized.
In all societies which have developed a legal system there are, among its non-legal rules, some to which supreme importance is attached. Very often the vocabulary of rights, obligations, and dutiesused to express the requirements of legal rules is used with the addition of moral, to express the acts of forbearances required by these rules. Characteristically, moral obligation and duty, like many legal rules, concern what is to be done or not to be done in circumstances constantly recurring in the life of the group, rather than in rare or intermittent activities on deliberately selected occasions. What such rules require are either forbearances, or actions which are simple in the sense that no special skill or intellect is required for their performance. Moral obligations, on the other hand, are within the capacity if any normal adult. In these obligations, while breach attracts serious censure, conformity to moral obligation, again, like obedience to the law, is not a matter for praise except when marked by exceptional conscientiousness, endurance, or resistance to special temptation.
The obligations and duties recognized in moral rules of this most fundamental kind may vary from society to society or within a single society at different times, which springs either from peculiar but real needs of society or from superstition or ignorance. If conformity with the most elementary rules (such as the forbiddance of violence, requirement of honesty, etc.) were not thought a matter of course among any group of individuals, living in close proximity to each other, we should be doubtful of the description of the group as a society, and certain that it could not endure for long.
Part 3 (Moral Ideals and Social Criticism): Hart starts this chapter by stating that moral obligation and duty are the very foundation of social morality, but they are not the whole of it. The mentioned four criteria in the previous parts act as formalcriteria in distinguishing moral obligation from other forms of social standards. Hart proceeds by saying that some moral codes granted only certain truisms of human nature, which can be seen in the fact that they are essential to exist if humans are to coexist with each other. The simple fact that what these rules demandfrom us is the price we pay to be able to affordsuch protection constitutes the core of the doctrines of Natural Law.
In the last parts of this chapter, some moralists may disagree for taking a broader definition of the word “morality,” but Hart defends such action by saying that he did so to include the in it all the social rules and standards which, in the actual practice of a society, actually exhibit all four features that were mentioned. To exclude some would render us to consider the term in a divided manner, which may be considered as unrealistic given the social structure that we live in. However, even if this is the case, it should be noted that morality includes more than the obligations and dutiesthat are recognized in the actual practice of social groups; they are only the bedrocks of it. Two further aspects of morality require attention.
First, even within a morality of a society, there coexists what Hart calls as its moral ideals. Ideals are not obligations per se, which is demanded from the people living in the society. For one, not achieving such ideals do not result to any repercussion or punishment. The ideals can be considered as achievements that deserves praise whenever it is achieved.Second, he takes a look at moral virtues. Virtues include qualities such as benevolence, charity, temperance, patience, bravery, etc. He characterizes them as the qualities of character shown in exceptional devotion to duty or in the pursuit of substantive moral ideals in the face of special temptation or danger.
Given all these, Hart takes note that even if we have all of these in place, we will always find something to criticize with our own or our society’s morality. In a sense, morality may be subjective, given that its protection may not cover all those living in a society (e.g. slaves in the society). Thus, morality itself may demand reform, either in the name of some value or combination of values already recognized in all actual social moralities (e.g. Liberty, Fraternity, Equality, etc.). Finally, Hart closes this chapter by saying that not all extensions of morality beyond the obligations and ideals generally recognized in a given society need to take the form of social criticism, as it is important to note that morality has its private aspect, shown in the individual’s recognition of ideals which he need not either share with others or regard as a source of criticism of others. Here, it can be argued that morality is much driven by the society we’re living in and its morality, but we need to understand that this may not be the case in all scenarios, as it is still up to the individual to recognize such morality.
Straight from the Hart 