Views of H.L.

A Hart

Using our distinctions, we can read Hart's assertion of it as being, at bottom, three distinct
claims:

1. There is no logically necessary connection between legal systems and moral systems.
2. There is no conceptually necessary connection between legal systems and moral
systems.
3. There is a nomologically necessary connection between law and morality (whether
systems, maxims, or propositions).

Let me explain. In arguing for the first thesis, Hart wants to show that the positivist concept
of law is not self-contradictory, and that the positivist doctrine separating law as it is from
law as it ought to be is a crucial part of that viable concept. But it is not merely a viable
concept of law, it is a better one. This is the second claim. Hart argues that the positivist
concept is intellectually and morally superior to a natural law concept. Intellectually better, as
only confusion could follow from our use of the narrower concept of law which excludes
morally offensive rules from the law. Certain rules would exhibit all the other characteristics
of law except moral validity. If we adopt the wider concept we may study whatever special
features morally iniquitous laws have, whereas the narrower concept splits our effort to
understand both the development and potentialities of the specific method of social control to
be seen in a system of primary and secondary rules. Hart argues that the wider concept is
morally better, for withholding legal recognition from iniquitous rules may oversimplify the
moral issues involved. For example, we might judge that certain laws ought not to be obeyed
without considering what costs to society such action might incur. Moreover, certain moral
dilemmas may be too easily resolved if we adopt the narrower concept. Consider the plight of
Socrates and the Nazi trials. Should Socrates submit to punishment for disobedience of evil
law or make his escape? Should we punish those who did evil things when they were
permitted by evil rules then in force? Hart is prepared to acknowledge many ways in which
law is tied to morality. For example, he argues that given the kind of creature that we are, and
given the conditions which surround us, it is impossible that law and morality be separate,
and the law of every modern state shows "at a thousand points" the influence of both the
accepted social morality and the wider moral ideas. His point is that both the way that we are
and the conditions that surround us could have been different than they in fact are. This is the
third claim. The force of this claim is that any necessary relationship between law and
morality must be nomological in nature. That is, had the laws of nature been different, we
might have had crab-like armour protecting us from attack, or we might have been perfectly
benevolent, or we might have lived in perfect abundance, and in such altered conditions the
law would not contain the morality it does.1

Hart distinguishes conventional morality and critical morality when defending the positivism
of Austin and Bentham, and when questioning the views of the natural law advocate. Yet he

1
Author(s): Timothy C. Shiell, Making Sense out of a Necessary Connection between Law and Morality
Published by: on behalf of University of Illinois Press North American Philosophical Publications pg 7-8
Stable URL: http://www.jstor.org/stable/40435652
fails to make clear whether it is conventional morality or critical morality that he admits is
(nomologically) necessarily connected to law. It is arguable that he must have conventional
morality in mind as he insists that immoral rules may be part of the law (e.g., laws permitting
and guiding slavery) and they are immoral by our standards, not the conventions of that
community. On the other hand, his recognition of "wider moral ideals" as a standard of
criticism suggests that critical morality plays an important role.2

Hart's argument that the legal positivist concept has moral value is not that it causes us to
fulfil our moral obligations, but rather, that it helps us be clear about our moral concepts and
dilemmas. That is, there is a conceptually necessary connection between the positivist
concept of law and (conventional?) morality.3

Instead, Hart views legal and moral obligation as distinct species of the same genus.
According to Hart, any statement of obligation presupposes the existence of a general "social
rule" that covers the particular circumstance that occasioned the obligation.4

'I would revive the terminology much favoured by the Utilitarians of the last century, which
distinguishes "positive morality," the morality actually accepted and shared by a given social
group, from the general moral principles used in the criticism of actual social institutions
including positive morality. We may call such general principles "critical morality".
MacCormick declares that Hart is concerned here to 'sharpen up a distinction foreshadowed
in [The] Concept of Law.' There Hart speaks (at p 178) of the 'further reaches of morality'
which 'take us in different ways beyond the confines of the obligations and ideals recognized
in particular social groups to the principles and ideals used in the moral criticism of society
itself.' But what follows in the passage from which these words are taken (which
MacCormick himself quotes in full) makes perfectly clear that Hart means by 'particular
social groups' particular societies. He is drawing a distinction between a society's morality -
'the morality actually accepted and shared' by the members of that society - and any complex
of moral principles by appeal to which that society's morality can itself be assessed (hence the
adjective 'critical'). But this makes it patently clear that positive morality and critical morality
are not 'both in the same way dependent on the attitudes people bring to bear on social
conduct.'

For on Hart's account, a society's positive morality is constituted by the attitudes of people
toward certain kinds of conduct. It follows that critical morality, in whatever way it is
dependent on people's attitudes, cannot - logically - be dependent on them in the same way,
or we should have the result that positive and critical morality are numerically identical. But
it would then be absurd for Hart to say that persons can appeal to one to assess the other.
Regarding MacCormick's charge that Hart does not adequately distinguish moral rules from
other moral standards that are not rules, MacCormick will accept that we have already seen
Hart distinguishing the two in the passages

2
Ibid pg 9 Para 3
3
Ibid pg 10 Para 2
4
H. L. A. Hart on Legal and Moral Obligation, (Source: Michigan Law Review, Vol. 73, No. 2 (Dec., 1974), pp.
443-458), Published by: Michigan Law Review Association, Stable URL: http://www.jstor.org/stable/1287782
 quoted above. What he does not accept is that the morality of a society ('positive morality') is
composed wholly of (social) rules. On Hart's view it is (though he is willing to admit that
other moral principles may be produced which are not rules of that society, are not a part of
its morality).5

By imposing an obligation which is conditional on the performance of a "rule-invoking" act,

it also confers a power.' This alleged fact is held by MacCormick 'to falsify [Hart's] main
thesis that wherever there are rule-conferred powers, there are necessarily distinct rules which
operate solely to confer powers'.6

5
Author(s): Rodger Beehler, Source: The University of Toronto Law Journal, Vol. 33, No. 3 (Summer, 1983), pp.
356-370 Published by: University of Toronto Press, pg7-8 Stable URL: http://www.jstor.org/stable/825622
6
Ibid pg 9 Para 1