What is Harts notion of a legal obligation and how does it differ from a moral obligation?

I will explain Harts model of how legal-obligations are similar and different to moralobligations. Then explain how Hart attempts to prevent anarchy and tyranny by counterposing legal-obligations to moral-obligations. Then argue how by protecting legitimacy of legal-obligations contrary to moral-obligations, Hart conserves unjustregimes. Hart says individuals have a moral-obligation to conform their conduct to a standard, when their social-group actually accepts a moral-standard as enjoining conduct, and enforces conformity to this standard.1 Hart provides examples of moral-standards: 1. Religious standards prescribed by religious texts, traditions2 2. Calculations of Utility of action-consequences3 3. Common-Sense notions of justice4 4. Whole variety of standards humans have for living in society5 Legal-Obligations and Moral-Obligations share some similar characteristics: Enjoin standards of conduct upon members of a group Standards are conceived as binding independent of the consent of the individual bound Standards Supported by serious social-pressure for conformity Compliance with standards is required-minimum contribution to social-life Standards apply to classes of people and situations Include minimum-standards people need to viably live in society, achieving values bottomed in the common nature of man,6 including:

HLA Hart, Positivism and the Separation of Law and Morals (1958) 71 Harvard Law Review 593, 597, hereafter SoLaM 2 SoLaM 597, 604 3 SoLaM 597, 608-609 4 SoLaM 605-6 5 SoLaM 623-24 6 Solam 621

o Natural-procedural-justice: principles of objectivity and impartiality in the administration of [rules], using general rules, treating like cases alike, applying [rule] only to genuine cases of the [rule]7 o Survival: basic moral principles vetoing murder, violence, and theft are natural necessity for human-beings to achieve value of survival in close proximity to each other8 Legal-Obligations differ from Moral-Obligations in some ways: M-O rely on shame/guilt for enforcement not mere-fear9; L-O rely on fear and interest by threats of punishments, including physical-force10 M-O excuses from moral-blame unintentional-breach; L-O excuses absence of mens rea, but can impose strict liability or objective tests which ignore offenders disability like reasonable man standard.11 M-O exists only while society evaluates conformity to standard as important; L-O can exist while standard is disobeyed but rule not yet repealed12 M-O cannot be created, changed or extinguished by human fiat; L-O can be created, changed or repealed by deliberate enactment13 Legal-Obligations achieve better social-control and standards than Moral-Obligations because Legal-Obligations differ from Moral-Obligation in some ways: M-O created by a disparate set of rules; L-O created by a more coherent system of rules14 M-O suffers uncertainty15 about standards, because there is no formal procedure for identifying rules; L-O are created by rules recognised as valid by rules of recognition16

7 8

SoLaM 624 SoLaM 623-24 9 SoLaM 623-4 10 HLA Hart, The Concept of Law (2d ed. 1994) 180, hereafter CoL 11 CoL 179 12 CoL 176 13 CoL 176-7 14 CoL 92 15 CoL 92 16 CoL 95

M-O suffers uncertainty17 about the precise scope of standards, because there is no formal procedure for settling disputes about interpretation; L-O are created by rules authoritatively interpreted by legal-officials complying with rules of adjudication18

M-O standards are too static19, because there is no procedure for deliberately adapting rules to changing circumstances; L-O are created by rules enacted, amended, repealed by legal-officials complying with rules of change20

M-O suffers inefficiency of diffuse social-pressure used to enforce standards, because there is no procedure for settling disputes about whether standard has been violated, and what sanction is appropriate21; L-O are administered by legal-officials complying with rules of adjudication22 who authoritatively determine fact of violation, decide on sanction

M-O suffers inefficiency of enforcement, danger of disproportionate response and social-conflict, because there no procedure to identify who will impose sanctions and how23; L-O are enforced only by legal-officials complying with rules of enforcement24

Thus, Legal-Obligations arise within a Legal-System, where primary-rules (which create legal-obligations for a subject about actions they must or must not do)25 are conclusively ascertained, introduced, eliminated, varied26 by secondary-rules27 which also conclusively determine fact of violation, sanctions and enforcement. Secondary-Rules include the abovementioned rules of recognition, change, adjudication, and enforcement. Legal-obligations are created by rules recognised as valid by rules-of-recognition. Legal-Obligations arise within a Legal-System of rules which require standards of conduct not necessarily consistent with moral-obligations;28 thereby danger arises of
17 18

CoL 92 CoL 97 19 CoL 93 20 CoL 95-6 21 CoL 93 22 CoL 97 23 CoL 93 24 CoL 98 25 CoL 93 26 CoL 94 27 CoL 98, 100 28 SoLaM 614-15

anarchy (citizens discarding these immoral-legal-obligations) and tyranny (immorallegal-obligations being uncritically obeyed). Anarchist thinks My moral-obligations disagree with a legal-obligation, therefore its legal-rule is invalid and I have no legalobligation, I will act as I please; In tyranny immoral-legal-obligations supplant morality as final test of conduct and escape criticism where subject thinks legalobligation exists, therefore it is an ideal standard for conduct which I must obey without further consideration of moral-obligations.29 Hart models legal-obligations within a legal-system counterposed to moral-obligations outside the legal-system, to prevent anarchy and tyranny. A legal-system by creating legal-obligations achieves social-control to prevent anarchy, while counterposed moralobligations disobey insufferable-tyranny. How does this happen? A legal-system dissuades and controls anarchy by imposing coercive socialcontrol30 upon all subjects by promulgating and enforcing (at least some) legalobligations with sanctions, including physical-force;31 A legal-system also prevents anarchy when subjects (citizens, legal-officials) accept legal-obligations as a guide to conduct for themself and others, motivated not primarily and solely by fear of sanctions; Subjects accept legal-obligations because subjects accept the legal-system as useful to achieve their goals; Subjects could be motivated to accept a legal-system by selfish-strategic defeasible choices to engage in the rule-guided power-relations of the legal-system as a means of secure-ordered association with others to achieve survival and pleasures; or subject could accept a legal-system and its legal-obligations by less-strategic acculturation and conformity to conventional social-processes;32 Subjects use secondary-rules of a legal-system to identify valid primary-rules which create legal-obligations for the subject; Legal-Obligation complying and non-complying citizens33 understand that validlegal-rules communicate an internal aspect which models citizen as subject
29 30

SoLaM 597-8 SoLaM 600 31 SoLaM 621 32 social acceptance of rule could be motivated by fear, superstition or [cultural] inertia SoLaM 6056 33 CoL p88

enjoined, required, expected34 to comply with rule-standards for their conduct i.e. all citizens understand that a valid legal-rule subjects the citizen to legalobligations, despite disagreement between these legal-obligations and the citizens moral-obligations; A majority35(but not necessarily)36 of citizens37 are legal-system-accepting subjects who model themself in agreement with the internal aspect of rules 38 as willing insider-participants39 of the legal-system, self-regulating by its legal-obligations;40 Citizens non-accepting of the legal-system or citizens who prefer non-compliance with legal-obligations are unwilling or deviant participants in the legal-system but adopt a selfish-strategic Realpolitik-model of legal-obligations to avoid predicted enforcement;41 Legal-System administrators (empowered citizens42 and legal-officials) maintain their subjects acceptance of legal-obligations by maintaining natural-proceduraljustice and complying with secondary rules43 when creating, interpreting and administering rules upon subject. A legal-systems social-control is prevented from becoming an insufferable-tyranny because a subject who understands his legal-obligations within a legal-system retains a psychological ability to: o identify his moral-obligations which are different to his legal-obligations o evaluate his legal-obligations by comparison to his moral-obligations o evaluate the legal-system or particular legal-obligations as too contrary to moral-obligations (or too evil) to obey.44 o Subject is expected to be courageous enough to disobey enforceable legalobligations or revolt against the legal-system.

34

Benjamin Zipursky, Legal Obligations and the Internal Aspect of Rules (2006) 75 Fordham Law Review 1229 35 CoL 90 36 CoL 106 37 SoLaM 621 38 CoL 90 39 CoL 98, 102 40 CoL 89 41 CoL 90-1 42 e.g. power to contract SoLaM p604 43 SoLaM 603 44 SoLaM 620-21

Thereby, a legal-system by subjecting citizens to legal-obligations achieves socialcontrol to prevent anarchy, while a subjects counterposed moral-obligations disobey insufferable-tyranny.

Do people living in unjust-regimes still have legal obligations? We will define an unjust-regime as a legal-system subjecting citizens to legalobligations inconsistent with their moral-obligations. Hart rejects Radbruchs anarchist model that humanitarian morality founds the concept of Legality, therefore a legal-rule cannot be valid if it contravenes basic moral-obligations, and should not be taken into account in working out the legal position of a subject, even if the rule conformed with the formal criteria of validity of a given legal-system.45 Hart models that citizens living in an unjust-regime have legal-obligations when rules are recognised as valid46 according to the legal-systems rules-of-recognition, despite these legal-obligations disagreeing with the subjects moral-obligations; but the subject could have a moral-obligation to disobey these legal-obligations, and do so at their peril facing enforcement. Harts model of a subjects legal-obligations in an unjust-regime proposes: If a persecuted subject disobeys an immoral L-O, subject retains L-O. Hart models there is no necessary connection between efficacy of a rule (i.e. actual obedience) and its validity47 If a persecuted subject might or does escape sanction for disobedience of L-O, subject retains L-O48 If a persecuted minority disobeys L-O or rejects legal-system, they retain L-O49 If a persecuted majority disobeys L-O or rejects legal-system, they retain L-O50 If there is a general disregard for the rules of a legal-system which is so complete, so protracted, we should say it has ceased to be the legal-system of the social-group, then it is pointless to assess the validity of rules, and other
45 46 47 48 49 50

SoLaM 617 CoL 103, 110

CoL 83 CoL 83
CoL 104-6 CoL 104-6, 116-17

citizens who reject the legal-systems rules-of-recognition would not accept that subject has L-O nor seek enforcement51 Hart models legal-obligations in a slave-owning-society: Harts model of legal-system does not recognise innate-human-rights, instead rules create rights which could contradict moral-obligations. In a slave-owning-society, rules create rights for a master over his slaves52 and create legal-obligations for slaves. Hart models that some rules are so fundamental [to society being viable] that if a legal system did not have them there would be no point in having other rules. 53 These necessary rules include prohibition of murder, violence, theft; and rules requiring natural-procedural-justice. However, a legal-system with these necessary rules could be hideously oppressive, and might deny to a vast rightless slave population the minimum benefits of protection from violence and theft; only if the rules failed to protect the survival and natural-procedural-justice of the slaveowners would the minimum [criteria for a legal-system] be unsatisfied and the system sink to the status of a set of meaningless taboos.54 Harts model of legal-system, primarily valuing social-control, seems to legitimise protecting the rights of the powerful and privileged at the cost of the less powerful and underprivileged. Slaves have no reason to obey except fear and would have every moral reason to revolt but they retain legitimate legal-obligations!55 Hart provides us a Realpolitik model of legal-obligations, primarily valuing socialcontrol, conserving the legitimacy of legal-obligations contrary to moralobligations, thereby conserving the status and power of officials who create and enforce immoral legal-obligations, thereby repressing social-progress and resistance within unjust-regimes. Abolition of slavery in England, USA and France was justified by a natural-law model of innate-human-rights which delegitimised legal-obligations of slaves and rights of slave-owners. In contrast, Harts model expects slaves to burden themself with the status of criminal while disobeying legitimate enforceable legal51 52

CoL 104 CoL 605-6 53 SoLaM 623 54 SoLaM 624 55 SoLam 624

obligations; which is politically unviable. Or, Hart expects deprived power-lacking slaves to violently overthrow the legal-system; which is physically unviable. Harts model of legal-obligations conserves unjust-regimes! Conclusion Hart models legal-obligations as arising in an existing legal-system, where citizens and officials accept and use rules-of-recognition to identify a rule as valid and applicable to a particular subject. Hart argues his model of legal-system prevents anarchy and tyranny by protecting legitimacy of legal-obligations when contrary to moralobligations, thereby supporting social-control; while expecting subjects to evaluate legal-obligations contrary to moral-obligations, then disobey at their peril. I have argued that Harts model, by protecting legitimacy of legal-obligations contrary to moral-obligations, conserves unjust-regimes.

Bibliography Benjamin Zipursky, Legal Obligations and the Internal Aspect of Rules (2006) 75 Fordham Law Review 1229 Anthony D'Amato, Obligation To Obey The Law: A Study of the Death of Socrates (1976) 49 Southern California Law Review 1079 Lon L. Fuller, Positivism and Fidelity to Law: A Reply to Professor Hart (Feb., 1958) 71:4 Harvard Law Review 630-672 Leslie Greene, Positivism and the Inseparability of Law and Morals (Paper presented at Columbia Law School) http://plato.stanford.edu/archives/spr2003/entries/legal-positivism/ HLA Hart, Positivism and the Separation of Law and Morals (1958) 71 Harvard Law Review 593 HLA Hart, The Concept of Law (2d ed. 1994) Stephan Hlawatsch, Separation of law and morals? A debate about legal validity and its implications for moral criticism a0303464@unet.univie.ac.at Nicola Lacey, H.L.A. Harts rule of law: the limits of philosophy in historical perspective (2007) 36 Quaderni fiorentini 1203-1224 Nicola Lacey, Philosophy, Political Morality, and History: Explaining the Enduring Resonance of the Hart-Fuller Debate (Paper presented at Symposium on the Hart-Fuller Debate at Fifty, New York University School of Law, February 12, 2008)

Michael A. Payne, Law Based on Accepted Authority, (1982) 23 William & Mary Law Review 501 http://scholarship.law.wm.edu/wmlr/vol23/iss3/6 Haris Psarras, The Morality of Legal Obligation (Paper presented at Conference on Law and Philosophy, University of Stirling, 11-12 December 2008) William C. Starr, Law and Morality in H.L.A. Hart's Legal Philosophy (Paper presented at Philosophy Department at Marquette University, September 1983) Robin West, Natural Law Ambiguities Georgetown Public Law and Legal Theory Research Paper No. 11-75 http://scholarship.law.georgetown.edu/facpub/658