Hart

and the Natural Law.

H.L.A Hart was a British legal philosopher and professor of jurisprudence at the University
of Oxford, he is commonly known alongside John Austin and Hans Kelsen as one of the
pillars of legal positivism. His book “The Concept of Law” published in 1961 is consider as
the pinnacle of his work, in it, he formulates a new way of thinking legal positivism as he
criticized the imperative theory of Austin and made changes to Kelsen’s work. In the first
part of this article, I will concentrate my analysis on the relationship between legal rules and
moral, as well as on the relationship between legal positivism and natural law that Hart
develops on chapters VIII and IX of his book, whit the objective of answering, what exactly
is that minimum content of natural law that he talked about? In the second part, I will argue
based on the discussion between Hart and Lon L. Fuller about the validity of judicial decision
on Nazi era, that the minimum content Hart describes in his book is way too minimum to
actually mean a change on positivist legal systems.

- Law and moral

First of all, Hart points out the existence of two theory’s that explained the
relationship between moral and legal norms, the first one derived from the Thomasian idea
of natural law, where a law isn’t valid if it contradicts the basic principles of moral justice,
or in other words “Lex iniusta non est lex”. The second theory it’s a more sociological theory,
where for a legal system to exists it must be widely accepted by people, that means an
obligation for the legal system of being in accordance whit the moral principles of a specific
society. He rejects those theory’s because for him there is ambiguity when they speak about
the necessary relationship between law and moral, also, he states that there is a conceptual
difference between law and moral. So, one could think that as Kelsen, Hart was trying to
build a theory without any moral interference, but as Keith Lovin states in the American
Journal of Jurisprudence “Hart’s account of the concept of law does reveal a necessary
connection between law and morality” (1976, p. 131)
 Because of that, what turns out to be really interesting about Hart, is that as professor
William C. Starr of Marquette University said, “Hart is a legal positivist, but he is a critical
moral philosopher as well” (1984, p. 680) so for him unlike for some other positivist’s, moral
actually was a really serious subject, one can realized through out Hart’s work that he is
trying to connect legal systems to basic moral principles like fairness, or stating that the moral
validity of a legal system could be useful from an internal point of view in order to apply it,
because it isn’t enough whit rules backed by a coercive sanctions to make a system effective,
it’s also needed some degree of people willfulness to respect and obey such dispositions.

So, what is that minimum content of natural law? For Hart, natural law has a
“core of good sense” that could be used in legal systems, that being said, it’s pertinent to
clarify that Hart always assured that law and moral should be sharply distinguished, so the
relationship between one another doesn’t mean that they are the same, just that because of
certain facts and certain conditions they can be connected. For professor Robert S. Summer
of Cornell Law that connection exists when “given certain facts about human nature and the
world man lives in, moral and legal rules having a minimum common content are necessary”
(1963, p. 650) he said that Hart’s notion of the natural law embodies a necessary connection
between law and moral, but no as the Thomasian theory suggested “lex iniusta non est lex”
but as a way to ensure survival, and given that survival is only possible through mutual
association then both moral and law must have a common core of content.

For Hart, that common core of content between law and moral is the minimum content
of natural law that a legal system should have, and it moves around a series of obvious truths.
For example, it’s natural for men to pursue survival, it’s also true that men are vulnerable
and that they are destructive, so the existence of moral and legal dispositions that prohibits
the use of violence becomes necessary. Another example are the moral and legal rules that
protect private property, Hart said that because resources are limited then the existence of
those moral and legal dispositions that protect the owner’s right over his property is
necessary. Even if that last example is a fundamental part of the conception of property from
classic liberalism (deeply disputed today), it’s also evident that for Hart the relationship
between law and moral is not a rational one but a natural one, meaning that the existence of
a minimum content of natural law inside the positivist’s legal systems is a natural necessity
derived from natural facts and social conditions directly associated whit human nature.

- The Hart-Fuller discussion.

In 1958 Harvard’s law review (vol. 71) an interesting debate took place, in one side
professor H.L.A Hart posted a paper called “Positivism and the separation of Law and
Morals” while from the other side professor Lon L. Fuller posted the article “Positivism and
Fidelity to law- a reply to professor Hart” in those articles the authors analyzed the role
moral has within law, whit the discussion taking place around the context of law in the Nazi-
Germany era. Hart defended that law and moral were two different things separated from
each other, while Fuller saw moral as the force which gave law its validity.

Now, taking into consideration the theory explained in the previous part of the text,
and Hart’s position in this discussion, we should ask ourselves if in the practice is really
enough whit that minimum natural relationship between law and moral to make a significant
change to the way positivists conceive law? I think it isn’t, and I believe Hart fell short when
he described the influence of moral within law, and that there are contradictions between his
theory of the minimum content of natural law and some of the argument’s he made when
talking about the validity of judiciary decisions on Nazi-Germany, for example he claimed
that

Courts have no alternative but to apply a properly enacted statute however

evil its aims may be. A victim of such law may rebel on moral grounds but,
legally speaking, he has no case; he must, at his own risk, choose between
his (legal) duty to obey the law and his (moral) duty not to do or abet evil.
(Hart, 1958, p. 60)

That argument is something a classic positivist would say following the idea that rules are
just orders from the sovereign that people must obey, that’s why, I find so strange that a
theorist that believed that idea to be insufficient and that assured law and moral had a natural
relationship could make such declarations.
 On the other hand, we have Lon L. Fuller a legal philosopher and professor at Harvard
Law that defended the postulates of natural law, in his 1964 book “The Morality of law” he
proposes that law has an internal component of moral, he stated that

“ When a system calling itself law is predicated upon a general disregard

by judges of the terms of the laws they purport to enforce, when this system
habitually cures its legal irregularities, even the grossest, by retroactive
statutes, when it has only to resort to forays of terror in the streets, which
no one dares challenge, in order to escape even those scant restraints
imposed by the pretence of legality-when all these things have become true
of a dictatorship, it is not hard for me, at least, to deny to it the name of
law.” (Fuller, 1958, p. 84)

meaning that legal dispositions that justifies or turns out to have evil aims can’t be properly
consider as law.

One can see that they stand on extremely opposite sides, Hart was a positivist and
Fuller defended natural law, but if we assume as many other scholars have, that in Hart’s
theory there is a connection between law and moral, and that for Hart the minimum content
of natural law is precisely a natural relationship between them, then is difficult to understand
that only three years before the publication of “The Concept of Law” Hart was making such
arguments in favor of the separation between law and moral. Taking into consideration that
in his book he saw the connection between those two as necessary when talking about issues
like survival and avoiding violence. So, it’s perfectly reasonable to think that even from
Hart’s perspective at least from 1961, that the statutes and the decisions of a regime like the
Nazi one couldn’t be legally valid because of its large amount of immoral and unfair content,
a content that put into risk really important principles to Hart, like coexistence, fairness and
even survival.

- Conclusions.
Taking everything into consideration, it’s possible to extract three conclusions from the text,
first, in “The Concept of Law” Hart proposed the minimum content of natural law as a natural
relationship between legal and moral dispositions that is materialize trough some basic truths
or principles like survival. From the Hart-Fuller discussion, we can extract two different
conclusions, either Hart changed his mind about the separation between law and moral he
defended, which can be see through the interpretation of chapters VIII and IX of his book, or
he never changed his mind, and the connection between law and moral he describes in his
book it’s just so minimum that it could be considered as irrelevant and non-existence when
it comes to the practice.

- Bibliography:

1. Hart, H. (2015). The concept of law. Oxford: Oxford University Press.

2. Hart, H. (1958). Positivism and the separation of Law and Morals, on Wright, G. &
Stlazer, M. (2004). The Legal Studies Reader: A conversation & Readings about Law.
(pp. 38-62). New York, Peter Lang.
3. Keith Lovin; H. L. A. Hart and the Morality of Law, The American Journal of
Jurisprudence, Volume 21, Issue 1, 1 January 1976, Pages 131–
143, https://doi.org/10.1093/ajj/21.1.131
4. Fuller, L. (1958). Positivism and Fidelity to law- a reply to professor Hart, on Wright, G.
& Stlazer, M. (2004). The Legal Studies Reader: A conversation & Readings about Law.
(pp. 63-92). New York, Peter Lang.
5. Summers, Robert S., "Professor H.L.A. Hart's Concept of Law" (1963). Cornell Law
Faculty Publications. Paper 1348.http://scholarship.law.cornell.edu/facpub/1348
6. William C. Starr, Law and Morality in H.L.A. Hart's Legal Philosophy, 67 Marq. L.
Rev.673(1984). Available at: http://scholarship.law.marquette.edu/mulr/vol67/iss4/8