Part 1 (Natural Law and Legal Positivism): Hart started the chapter by saying that morality somehow influences the creation of laws in one way or another; a legal system must have some conformity with morality or justice and must have a conviction that there is a moral obligation to obey it. Two relations are discussed in this chapter: first is the issue between Natural Law and Legal Positivism (which is given focus on in the first part of the chapter). Hart describes Legal Positivism as the simple contention that it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality. This takes two forms. The first being that of the theory of Natural Law, and the other which was not named but described to be as a less rationalist view of morality.
Hart proceeds by showing the difficulties with the concept of Natural Law by saying that inanimate objects (such as stars) follow laws which are natural to it, while humans do not, which then formulate irregularities in the way men behave. Natural Law then becomes descriptive, which means that the laws are existing and are just waiting to be discovered, and it can also be prescriptive, which merely means that this could be broken by men. Natural law, although coming from nature, should not be confused with theocracy, or the belief with a Divine Governor, as the concept of Natural Law is very much secular in origin. For modern secular though, the world of inanimate and animate objects comes from recurring kinds of events and changes that exemplify certain regular connections. Thus, Natural Law stems from seeing and discovering these regularities, and thus rests on the ability of a theory/law to be able to predict what is to happen next.
An older conception of Natural Law does not simply look into the regularities, as it also focuses on the notion that objects tend to maintain itself in existence towards a definite optimum state, or the end (finis) appropriate for it. This teleological view overlaps with the modern thought. The difference is that on the teleological view, the events are not thought of as merely occurring regularly, and the questions whether they do occur regularly and whether they shouldoccur or whether it is good that they occur are not regarded as separate questions. The development then of a thing should show both how it should and how it does regularly behave or change. An example given is that of an acorn to an oak tree, where certain progressions such as the development of its leaves is necessary for it to gather nutrients to make it grow. Hence, this growth is what ought naturally to occur.
In the teleological view, men are thought of to be beings with a purpose of their own which they consciously strive for – their optimum state, which does not only include logical maturity and physical powers, but also development and excellence of mind and character manifested through conduct. An example of a natural thing humans do are to eat and rest, which are needed for full sustenance for everyday living, even though some refuse to do them. The use of the term naturallyin this judgment of human conduct, should be differentiated from judgments which reflect mere conventions or human prescriptions(You ought to take off your hat). Based on these examples then, it shows that the proper end of human activity issurvival, and this rests on the simple contingent fact that most men most of the time wish to continue in existence. Different thinkers then associated what it means to survive. For some, the knowledge of God, and for some the enhancement of human intellect. For Hobbes and Hume, they acknowledged that Human nature cannot by any means subsist without the association of individuals: and that association never could have place were no regard paid to the laws of equity and justice.
The latter-mentioned view then refers to survival as discarding those which are metaphysical for modern minds. Instead, it holds the metaphysical as a mere contingent fact which could be otherwise, that in general men do desire to live, and that we may mean nothing more by calling survival a human goal or end than that men desire do it. Though the goal is survival, we cannot discount the fact that factors such as danger, safety, harm and benefit coincide and simultaneously exist with this goal. There are, however, simpler, less philosophical considerations that could be looked into, which include social arrangementsnecessary for survival. We wish to know whether among these social arrangements, there are some which may be ranked as natural laws discoverable by reason, and what their relation is to human law and morality. It is given that there are social rules of conduct which and social organization must contain if it is to be viable, which usually constitute a common element in the law and conventional morality of all societies which have progressed to the point where these are distinguished as different forms of social control. Such principles have basis on elementary truths may be considered the minimum content of Natural Law, in contrast with the more grandiose and more challengeable constructions which have often been proffered under that name.
Part 2 (The Minimum Content of Natural Law): Hart starts this part by saying that the reasonor contentfor survival is an essential part as to why people naturally obey such laws, and without this content, laws and morals cannot forward the minimum purpose of survival which men have in associating with each other, therefore have no reason to obey the laws set forth. An example given is that of an infant, where unless children are fed and nurtured in certain ways within the family, no system of laws or code of morals can be established, or that only those laws can function successfully which conform to a certain type. The connection shown between natural conditions and systems of rules are not mediated by reasons. Some actions may be the cause, but it is not the reason for their doing so. Causal explanations (such as the need for sustenance through feeding) cannot be attributed to conscious aims or purposes, as they fare for sociology or psychology like other sciences to establish by the methods of generalization and theory. Such connections are therefore of a different kind from those which related the content of certain legal and moral rules to the facts stated in the following truisms.
(i) Human Vulnerability:The common requirement for laws usually start with prohibitions, such as the order to not kill someone or to not steal from another person. This is the case because of the fact that men are both occasionally prone to, and normally vulnerable to, bodily attack. If men were to lose vulnerability, such as animals with exoskeletons for protection, to each other, there would vanish one reason for the most characteristic provision of law: thou shall not kill.
(ii) Approximate Equality: Though there may be differences in strength, it is a fact that no individual is so much more powerful than another. Even the strongest must still sleep, and when asleep, loses temporarily his superiority. This then gives the need for a system of mutual forbearance and compromise which is the base of both legal and moral obligation. Although there are mutual forbearances, we cannot remove the fact that some would wish to stray away form these set rules. This indeed is a one of the natural facts which makes the step from merely moral to organized, legal forms of control a necessary one.
(iii) Limited Altruism: Men are not devils, and therefore there is a force inside each one that makes as want to do what is right. This being said, we are not angels as well. As things are, human altruism is limited in range and the tendencies to aggression are frequent enough to be fatal to social life if not controlled.
(iv) Limited Resources: It is a fact that human beings need food, clothes, and shelter, and it is also a fact that that these resources are not unlimited. These facts alone make indispensable some minimal form of the institution of property, and the distinctive kind of rule which requires respect for it. In this respect, things might have been otherwise than they are. We could have been made to sustain ourselves without any form of cultivation for food, but we were not made this way. We need to labor for our food to sustain our living.
(v) Limited Understanding and Strength of Will:People understand the benefits more when they can be seen short-term, but not all are given the understanding to fully appreciate them in the long run through patience and strength of will. All are tempted sometimes to prefer their own immediate interests and, in the absence of a special organization for their detection and punishment, many would succumb to the temptation. Sanctions therefore act also as a guarantee that some actions be done by those who were willing to do it in the first place. Given this, what reason demands is voluntary cooperation in a coercivesystem.
Given all these, we can see now how organized sanctions are implemented, or how it is somehow not implemented. For one, the assumption of approximate equality cannot be pursued since there are vast differences among the states of the world, where one might be an economic powerhouse while the others are not. In this regard, organized sanctions have been impossible to implement, and law has been confined to matters which did not affect vital issues.
We can say that given the setting of natural facts and aims, which make sanctions both possible and necessary in a municipal system, that his is a natural necessity;and some such phrase is needed also to convey the status of the minimum forms of protection for persons, property, and promises which are similarly indispensable features of municipal law. In the end, we should also consider the truth of which is contingent on human beings and the world we live in retaining the salient characteristics which we have.
Part 3 (Legal Validity and Moral Value): Hart starts the third part by saying that the system of mutual forbearances may be implement differently in different societies. Though it is true that the denial of which would offend the principles of morality and justice, their implementations may be different. For example, in slave-owning societies, the slaves are not considered to be humans but merely as objects, therefore the slaves are not covered by the elementary protection that is supposedly given to human beings. This shows that the promised forbearances are only extended to some and to not all of society.
Voluntary acceptance of rules is needed, and without voluntary cooperation, thus creating authority, the coercive power of law and government cannot be established. Following rules involves the attitudes and behaviour involved in the voluntary acceptance of rules and that of obedience. Hence, a society with law contains those who look upon its rules from the internal point of view as accepted standards of behaviour, and not merely as reliable predictions of what will befall them if they disobey. On the other hand, these same rules help in aiding those who are helpless against their fellow non-abiding humans. This shows that the step from the simple form of society into the legal world with its centrally organized legislature, courts, officials, and sanctions brings its solid gains at a certain cost. The gains being the adaptability to change and efficiency, while the cost being the possible abuses of those in authority. Hart then says that the chapter is to be ended by examining six (6) forms of this claim.
(i) Power and Authority: Not only do orders backed by threats require the notion of an accepted rule of recognition, but as seen in this chapter, a necessary condition is that some at least must voluntarily cooperate in the system and accept its rules, and along with it the authorities built within it. The allegiance to these rules can be based on different factors including long-term interests, disinterested interest in others, traditional attitude, or the mere wish to do as others do.
Those who accept the authority of a legal system look upon it from the internal point of view, such as when on says “I must”, “I have an obligation to..”, etc. However, it cannot be said that they are committed to a moral judgment that it is morally right to do what the law requires.
(ii) The Influence of Morality on Law: It is very evident in different states that laws are created through the guidance of morality and wider moral ideals, such as the presence of ideas of justice. Hart proceeds by saying the even positivistscould not deny that these are facts, or that the stability of legal systems depends in part upon such types of correspondences with morals.
(iii) Interpretation:Law requires interpretation if it is to be applied to concrete cases, and very often, the judges’ choice is guided by an assumption that the purpose of rules which they are interpreting is a reasonable one, so that the rules are not intended to work injustice or offend settled moral principles. In some cases, the judges are often guided by characteristic judicial virtues, the special appropriateness of which to legal decision explains why some feel reluctant to call such judicial activity as legislative. In this regard, what is moral can be found in the virtue of impartiality and neutrality when making their decisions, which includes the consideration for the interest of those who will be affected, and a concern to deploy some accepted general principle as a reasoned basis for decision.
(iv) The Criticism of Law: As mentioned in the last paragraph, a goodlegal system must conform at certain points to the requirements of justice and morality. However, this begs the question whether the morality with which law must conform to if it is good mean the accepted morality of the group whose law it is, even though this may rest on superstition or may withhold its benefits and protection from slaves or subject classes? On the other hand, should it rest on rational belief as to matters of fact, and accept all human beings as entitled to equal consideration and respect? In our modern day, we favour to rest our judgments on the latter. However, we cannot deny the fact that for the longest time, municipal laws were designed to favour the former. What then, if anything, is to be gained from denying that iniquitous rules are law?
(v) Principles of Legality and Justice: Hart says that a minimum of justice is necessarily realized whenever human behaviour is controlled by general rules publicly announced and judicially applied. This is shown through impartiality which English and American lawyers call as principles of Natural Justice. Further notions of justice which may be considered naturalemerge if we study what is in fact involved in any method of social control – which consists primarily of general standards of conduct communicated to classes of persons, who are then expected to understand and conform to the rules without further official direction. Justice is seen when people are given the opportunity to conform with the rules but are properly punished for non-compliance. Injustice then happens when they are punished without even being given the opportunity to actually follow the rules set forth for them.
(vi) Legal Validity and Resistance to Law: With positivist thinkers, they are concerned to promote clarity and honesty in the formulation of theoretical and moral issues raised by the existence of particular laws which were morally iniquitous but were enacted in proper form, clear in meaning, and satisfied all the acknowledged criteria of validity of a system. Hart proceeds by differentiating the widerand narrowerconcept of positivist law. The wider concept leads us in theoretical inquiries to group and consider together as lawall rules which are valid by the formal tests of a system of primary and secondary rules, even though some of them offend against a society’s own morality. On the other hand, the narrowerconcept excludes from lawsuch morally offensive rules. If we apply the narrowerconcept, would this make us more clear-headed or readier to disobey when morality demands it? Either way, Hart believes that so long as humans can demand cooperation from others, they can manipulate both into a tool to enforce wickedness upon others.
Hart says that it can be said that preference of the wider concept of law would be better since this would allow us to think and say, “This is law but iniquitous.” A concept of law which allows the invalidity of law to be distinguished from its immorality, enables us to see the complexity and variety of these separate issues; whereas a narrow concept of law which denies legal validity to iniquitous rules may blind us to them.
Straight from the Hart 