Hart on Morality

Hart on Morality
• Hart in Chapters 8 and 9 of Concept of Law expounds his view of
morality.
• He claims that there is no necessary connection between law and
morality. However, this does not mean he has no view on morality.
• In ‘Liberty, Law and Morality’ Hart discusses the role of morality in law
creation (i.e. human rights enshrined in constitutions, equitable
principles applied by judges and Fuller’s 8 principles of legality are
examples of morality inherent in law).
• Hart subscribes to paternal morality (to save people from harm) and does
not approve conventional morality as propounded by judges like Lord
Devlin.
• Hart sought to distinguish law from morality. How far he
succeeded is open to debate.
• Hart argued that in its nature morality has significant differences
with law. For example, rules of morality are immune from
deliberate change. There is the voluntary character of moral
codes. There are unique forms of moral pressure surrounding
moral wrongs. To these, Bodenheimer adds other differences.
• For moral offences, there is uncertainty regarding sanctions. There
is a difference between an ethical and a positivist view of
obligation. Bodenheimer, however, faults Hart for implying that
rules are always open to deliberate change- Can Parliament in any
realistic sense repeal the law on homicide or treason?
• While looking at the differences between law and morality, Hart
came to the conclusion that:
• (i) there are different degrees of importance for moral rules,

single standard for legal rules (valid/invalid).

• (ii) Immunity to change for moral rules which gradually fades

away with disuse. Legal rules however can be repealed or

created at will.
• (iii) Voluntary nature of moral rules. Legal rules, however, are

mandatory.
• (iv) Moral pressure for moral rules, sanctions for disobedience

of legal rules.
• As to the connection between law and morality, Hart insisted that
the connection was not a necessary one. The connection was
casual and not causal. Law can exist without morality. Law can be
moral, immoral or amoral. Legality is one thing; morality is
another. (See the Nazi laws from Hart’s perspective)
• According to Hart, identification of law or determination of its
validity is a formal exercise wholly dependent on the ‘rule of
recognition’. The rule of recognition can be moral, immoral or
amoral. Likewise primary rules may be morally neutral.
• Nevertheless in his engaging debates with Lon Fuller, Hart
conceded the importance of morality to the law. Thus, at a
thousand and one points law and morality intersect. Morality
exerts a strong influence on many aspects of law and the legal
system.
• Although Hart talks like a positivist, there are strong moral
elements in Hart’s theory e.g. viewing law as a means of social
control and emphasising the internal aspect of rules and reject any
explanation which rest law on orders, threats, obedience and
habits. To him, law rests on an attitude or behaviour involving
voluntary acceptance of the rules. Such voluntary acceptance may
be motivated by many considerations including the moral worth
of the law.
• Hart’s ‘minimum content of natural law’ is a natural law
approach, albeit ala Hart, devoid of any moral philosophy. It is a
natural law approach because: He bases the minimum content of
natural upon fundamental nature of man.
• Reflecting upon man’s nature Hart finds five human truisms about
man that justify prohibition against violence, trespass and
deception.
• But take note that Hart is not suggesting that law is derived from
morals and that there is a necessary conceptual link between the
two as natural lawyers grandly claim. Neither does Hart say that
his ‘minimum content of natural law’ will ensure a just and fair
society. All that Hart suggests is that given survival as the aim,
law and morals should include a specific common content.
• In addition to the above, the ‘minimum content’ is common to
both law and morality. To that extent, there is a connection. The
overlap is, however, not an accident. According to Hart, it is
practically necessary. It is indispensable if society’s survival
matters. Thus, a society without this ‘minimum content’ will find
it much more difficult to survive. It society does not have rules of
these sorts it might just not as well have rules of any sort. So, Hart
is not only concerned with elucidating the structure but also the
content of law. He is thus against statement such as ‘law can have
any content’
• The other argument that is always presented to show the casual
connection between law and morality i.e., that is the influence of
law on morality. The argument here is that law and morality are
casually connected due to the fact that morality has a major
influence on the development of law, be it a legislation or case
law.
• For example in the USA, the written constitution can be construed
as the dominant feature of the ultimate rule of recognition. The
constitution is mostly a moral code containing principles of justice
and morality. As such, the rule of recognition is essentially a
moral rule. Hart asserts that no positivist would deny the
connection between law and morals. If this is what is meant by the
necessary connection between law and morals he would go by it.
• Morality influences the interpretation of laws. Since the open
texture of laws require judicial interpretation and discretion, this
creative activity is guided by the principles of justice and
morality. (See the Dworkin- Hart debate on hard cases.)
• Apart from the example cited above, other examples are:
• (i) the internal point of view

• (ii) the difference between legal validity and duty to obey laws

• (iii) the defiance of unjust laws

• (iv) the stability and continuity of a legal system.

• The internal point of view which refers to the obedience of
‘rules’ in the absence of fear. This refers to an awareness and
support for a social rule by those to whom the rule applies. Hart’s
idea of the IPV is not a wholesale moral idea but partakes of
moral considerations.
• The difference between legal validity and duty to obey laws.
Hart accepts that at the foundations of a legal system, the idea of
legal validity and the duty to obey the law cannot be based on
threats or habits of obedience. According to Hart, if a system of
rules is to be imposed by force, there must be a sufficient number
who accept it voluntarily. Without voluntary cooperation thus
creating authority the coercive power of law and government
cannot be established. A legal system must rest on a moral sense
of obligation or on the conviction of the moral value of the system
since it does and cannot rest on mere power of man over man.
• The defiance of unjust laws. Hart argues that the certification of
something as legally valid is not conclusive of the question of
obedience. Like Fuller and Finnis, he leaves the door open for
defiance of laws which fail to satisfy the requirements of justice
and morality.
• The stability and continuity of a legal system. Hart concedes
that stability of a legal system depends in part upon
correspondence with morals.
• Hart also acknowledges that a good legal system must conform at
certain points to the requirements of justice and morality and thus
rejected the idea that justice simply refers to ‘conformity to law’.
• According to Hart, natural law contains certain ‘elements of
truths’ or ‘simple truism’ of importance about how humans should
live together (see the five altruism about human being e.g. Human
vulnerability; approximate equality; limited altruism; limited
resources; and limited understanding).
• Hart also argues that likewise on issues like recognition by
officials of the ‘rules of recognition’, interpretation and
administration of the law by state officials, he openly
acknowledged the influence of morality. Hart admits that in the
penumbra judges may be guided by moral standards.
• All in all, although Hart is viewed as a positivist, it is very clear
from the discussion above that there are some moral elements in
his theory. (See the examples above)