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INTRODUCTION
Natural Law regards that all laws can be rationally derived from
basicmoral principles either religious or secular. This theory of
law was the dominant
juristic force in the ancient world and also in Judaic,
Christian and Muslim
theology. The rise of the nation state and the influence of
modern analyticalphilosophy posed serious problems for the
uncertainty inherent in Natural Law asit deemed all human laws not
in consonance with divine law as invalid. AnalyticalLegal
Positivism shook the very basis on which much of Natural Law
rested.David Hume, the most prominent philosopher of the Scottish
Enlightenment,broke Natural laws methodological spine by showing
via Aristotelian syllogismthe futility of deriving an ought from an
is and what G.E. Moore terms as thenaturalistic fallacy. Further,
the morally relativistic positivists argue that there isno
universally agreed list of morals or natural rights.
The intrinsic logical weaknesses of natural law coupled with the
need for
certainty and moral clarity in the modern nation state led to
the rise of positivismas the dominant legal theory in the 19th and
20th Centuries.
However, the first half of the 20th Century also saw the two
mostdevastating wars in the history of mankind and the need arose
to reevaluate thea moralistic basis of legal positivism. The
aftermath of these wars led to theUniversal Declaration of Human
Rights and the concept of the inviolability ofhuman life came to
the fore. Considering these developments, there was avacuum between
these two opposing schools of jurisprudence and the need fortheir
respective advantageous precepts to be synthesized into one
coherent legaltheory of general applicability. The man who
endeavored to take up this vast taskwas the Oxford jurist H. L. A.
Hart.
H.L.A. HART
Herbert Lionel Adolphus Hart was a British philosopher who was
aprofessor of jurisprudence at the University of Oxford. He is
considered the"world's foremost legal philosopher in the twentieth
century". One of his mostfamous works isThe Concept of
Law(1961).
The Concept of Law (1961)
Hart's most famous work is The Concept of Law, first published
in 1961,and with a second edition (including a new postscript)
published posthumously in
1994. It is an analysis of the relation between law, coercion,
and morality, and itis an attempt to clarify the question of
whether all laws may be properlyconceptualized as coercive orders
or as moral commands. Hart says that there isno logically necessary
connection between law and coercion or between law andmorality.
LAWS AND MORALS
When laying down the framework for the basic debate between
legalpositivism and natural law, Hart explains that it cannot be
seriously disputed thatthe development of law, at all times and
places, has in fact been profoundly
influenced both by the conventional morality and ideals of
particular socialgroups, and also by forms of enlightened moral
criticism urged by individuals,whose moral horizon has transcended
the morality currently accepted. However,it does not follow that
the criteria of legal validity of particular laws used in thelegal
system must exhibit some specific conformity with morality or
justice.
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normally vulnerable to, bodily attack. Thus, if there are no
such rules restrictingviolence, there would be no point in having
rules of any other kind.
Approximate equality, which restricts the use of aggression.
Although menhave different capacities, no individual is so much
more powerful than others,
that he is able, without co-operation, to dominate or subdue
them for more than ashort period of time. Thus, there is a need for
a system of mutual forbearanceand compromise which is the base of
both legal and moral obligation.
Limited altruism, which makes a system of mutual forbearances
bothnecessary and possible as men are neither devils nor angels,
but are a meanbetween these two extremes.
Limited resources, which require some system of property.
Sincenecessities needed by men for survival are limited, which can
only be grown orwon from nature or have to be construed by human
toil, there is a need for aminimal form of the institution of
property and the distinctive kind of rule whichrequires respect for
it.
Limited understanding and strength of will, which require some
form ofsanctions not as the normal motive for obedience, but as a
guarantee that thosewho would voluntarily iobey shall not be
sacrificed to those who would not.
Hart claims that these five truisms about human nature makes it
a "naturalnecessity" that law has a certain content that embodies
the minimum forms ofprotection for persons, property and promises.
The general form of the argumentof the minimum content of natural
law is simply that without such content, lawsand morals could not
forward the minimum purpose of survival.
References:
Hart, H. L. A. The Concepts of Law (1961)
Hart, H. L. A. The Concepts of Law 2ndEdition (1994)
http://en.wikipedia.org/wiki/H._L._A._Hart#The_Concept_of_Law
http://legaltheoryandjurisprudence.blogspot.com/2008/08/hla-hart-laws-and-morals-and-minimum.html
http://www.angelfire.com/md2/timewarp/hart.html
http://al-hikmat.blogspot.com/2007/07/hla-harts-concession-to-natural-law.html
http://en.wikipedia.org/wiki/H._L._A._Hart#The_Concept_of_Lawhttp://en.wikipedia.org/wiki/H._L._A._Hart#The_Concept_of_Lawhttp://legaltheoryandjurisprudence.blogspot.com/2008/08/hla-hart-laws-and-morals-and-minimum.htmlhttp://legaltheoryandjurisprudence.blogspot.com/2008/08/hla-hart-laws-and-morals-and-minimum.htmlhttp://legaltheoryandjurisprudence.blogspot.com/2008/08/hla-hart-laws-and-morals-and-minimum.htmlhttp://www.angelfire.com/md2/timewarp/hart.htmlhttp://www.angelfire.com/md2/timewarp/hart.htmlhttp://al-hikmat.blogspot.com/2007/07/hla-harts-concession-to-natural-law.htmlhttp://al-hikmat.blogspot.com/2007/07/hla-harts-concession-to-natural-law.htmlhttp://al-hikmat.blogspot.com/2007/07/hla-harts-concession-to-natural-law.htmlhttp://www.angelfire.com/md2/timewarp/hart.htmlhttp://legaltheoryandjurisprudence.blogspot.com/2008/08/hla-hart-laws-and-morals-and-minimum.htmlhttp://legaltheoryandjurisprudence.blogspot.com/2008/08/hla-hart-laws-and-morals-and-minimum.htmlhttp://en.wikipedia.org/wiki/H._L._A._Hart#The_Concept_of_Law
