Laws and MoralsLaws and Morals

H.L.A. HartH.L.A. Hart

Fuller’s Eight Ways to Fail to Make a Law Fuller’s Eight Ways to Fail to Make a Law left us with a variety of requirements to left us with a variety of requirements to have a fair and just legal system.have a fair and just legal system.

Hart adds to these in claiming that all Hart adds to these in claiming that all systems of justice must have minimal systems of justice must have minimal content to promote survival. content to promote survival.

Law and MoralityLaw and Morality The natural law tradition holds that there is The natural law tradition holds that there is

universal justice (morality) that transcends universal justice (morality) that transcends particular laws and legal systems.particular laws and legal systems.

Universal principles of justice are available to Universal principles of justice are available to human reason.human reason.

Positive law that does not have the backing of Positive law that does not have the backing of universal principles of justice is not really law for universal principles of justice is not really law for it does not have moral content to obligate us.it does not have moral content to obligate us.

Hume said in favor of natural law: “Human Hume said in favor of natural law: “Human nature cannot by any means subsist nature cannot by any means subsist without the association of individuals: and without the association of individuals: and that association could never have place that association could never have place were no regard paid to the laws of equity were no regard paid to the laws of equity and justice.”and justice.”

We need not have lofty aspirations We need not have lofty aspirations for natural lawfor natural law

Aristotle believed that human flourishing is Aristotle believed that human flourishing is manifested by growing up strong and manifested by growing up strong and healthy and having an excellent character healthy and having an excellent character (a virtuous one). This was part of a (a virtuous one). This was part of a human’s telos (purpose). human’s telos (purpose).

Happiness is the goal of all human Happiness is the goal of all human existence, the end of all human action.existence, the end of all human action.

The purpose of a human, as defined by Aristotle, The purpose of a human, as defined by Aristotle, characterizes characterizes specific contentspecific content for the law. for the law. Aristotle’s theory of natural law is controversial. Aristotle’s theory of natural law is controversial.

Objections: Not everyone believes happiness is Objections: Not everyone believes happiness is the purpose of human life.the purpose of human life.

Hart claims that the law simply cannot have any Hart claims that the law simply cannot have any kind of content. So he tries to define what that kind of content. So he tries to define what that content must be.content must be.

He believes the content may be specified He believes the content may be specified minimally so that it covers all systems of law.minimally so that it covers all systems of law.

Minimal ContentMinimal Content

Each human being has a natural desire to Each human being has a natural desire to continue living.continue living.

Our society is filled with terms such as: desire, Our society is filled with terms such as: desire, benefit, harm, pleasure, pain, disease, safety. A benefit, harm, pleasure, pain, disease, safety. A great many values surround survival.great many values surround survival.

Law is a way of organizing a community. When Law is a way of organizing a community. When people live together their mutual interests are people live together their mutual interests are how to survive and do so cooperatively.how to survive and do so cooperatively.

Setting one sights low, natural law Setting one sights low, natural law theorists can claim that as long as a law theorists can claim that as long as a law promotes survival, then it is good and promotes survival, then it is good and ought to be in society. ought to be in society.

Proposition 1: Given that law is a Proposition 1: Given that law is a mechanism for regulating the behavior of mechanism for regulating the behavior of individuals in a society, it must have a individuals in a society, it must have a certain basic, minimal content in order that certain basic, minimal content in order that the community be viable. the community be viable.

Proposition 2: In turn, for the community to Proposition 2: In turn, for the community to be viable, the survival and continued be viable, the survival and continued existence of at least some of its members existence of at least some of its members must be ensured. must be ensured.

Proposition 3: The content which ensures Proposition 3: The content which ensures such survival is called the minimum such survival is called the minimum content of natural law content of natural law

Five Facts of Human ExistenceFive Facts of Human Existence

There are five facts of human existence There are five facts of human existence which determine the specific content of which determine the specific content of law. These are specifically aimed at law. These are specifically aimed at promoting survival.promoting survival.

The following truisms make it a “natural The following truisms make it a “natural necessity” for the laws to protect people, necessity” for the laws to protect people, private property, and promises.private property, and promises.

There must be prohibitions against bodily There must be prohibitions against bodily harm, death, and violence. Without these harm, death, and violence. Without these fundamental prohibitions, there would be fundamental prohibitions, there would be no reason for other rules. no reason for other rules.

Humans are not ‘in fact’ equal to each other. Humans are not ‘in fact’ equal to each other. Some of us are stronger than others, smarter, Some of us are stronger than others, smarter, faster, and more capable of dominating.faster, and more capable of dominating.

Approximate equality is another rule of “mutual Approximate equality is another rule of “mutual forbearance and compromise.”forbearance and compromise.”

Each person must, under the law, be considered Each person must, under the law, be considered equal. Each person has equal interests to equal. Each person has equal interests to protect. protect.

People should withhold the temptation to exploit People should withhold the temptation to exploit the weak, unintelligent, innocent, naïve, etc.the weak, unintelligent, innocent, naïve, etc.

A moderate balance of altruism is A moderate balance of altruism is desirable. We should restrict selfish desirable. We should restrict selfish behavior and serve the interests of others.behavior and serve the interests of others.

Social life would be destroyed with brutish Social life would be destroyed with brutish aggression and selfishness were not aggression and selfishness were not curtailed.curtailed.

People should be allowed limited People should be allowed limited ownership of assets. There must be ownership of assets. There must be prohibitions against indiscriminate entry prohibitions against indiscriminate entry and use of one’s private assets whether and use of one’s private assets whether it’s land, food, or some other thing. We it’s land, food, or some other thing. We should not steal another person’s things.should not steal another person’s things.

Again this is a minimal requirement for Again this is a minimal requirement for living together in a community.living together in a community.

Rules are StaticRules are Static

These rules do not vary from one These rules do not vary from one individual to another.individual to another.

There can by dynamic rules which allow There can by dynamic rules which allow citizens to transfer private property and citizens to transfer private property and enter into contracts. The basic rules enter into contracts. The basic rules remain the same.remain the same.

Some people will be tempted to not follow the Some people will be tempted to not follow the rules in a society. Perhaps due to limited rules in a society. Perhaps due to limited understanding of the law and weakness of the understanding of the law and weakness of the will. A system of rules would have no teeth if will. A system of rules would have no teeth if there weren’t sanctions to enforce the rules. The there weren’t sanctions to enforce the rules. The interests of those who voluntarily obey the law interests of those who voluntarily obey the law should not be sacrificed to those who would tend should not be sacrificed to those who would tend to violate it. Voluntary obedience combined with to violate it. Voluntary obedience combined with coercion must be a part of a legal system.coercion must be a part of a legal system.

The five truisms, says Hart, are required The five truisms, says Hart, are required for any doctrine of Natural Law.for any doctrine of Natural Law.

These require no specific content (such as These require no specific content (such as that which would be required by an that which would be required by an Aristotelian system of natural law based Aristotelian system of natural law based on purposes).on purposes).

All propositions and truisms laid down All propositions and truisms laid down here are grounded in natural facts of here are grounded in natural facts of human beings: the desire for survival.human beings: the desire for survival.

Quick QuestionsQuick Questions

1. What were Hart’s objections to other 1. What were Hart’s objections to other versions of natural law?versions of natural law?

2. Can you name the five truisms?2. Can you name the five truisms?

3. What are the three propositions?3. What are the three propositions?

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