Laws and Morals H.L.A. Hart

Fuller’s Eight Ways to Fail to Make a Law left us with a variety of requirements to have a fair and just legal system. Hart adds to these in claiming that all systems of justice must have minimal content to promote survival.

Law and Morality The natural law tradition holds that there is universal justice (morality) that transcends particular laws and legal systems. Universal principles of justice are available to human reason. Positive law that does not have the backing of universal principles of justice is not really law for it does not have moral content to obligate us.

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

We need not have lofty aspirations for natural law Aristotle believed that human flourishing is manifested by growing up strong and healthy and having an excellent character (a virtuous one). This was part of a human’s telos (purpose). Happiness is the goal of all human existence, the end of all human action.

The purpose of a human, as defined by Aristotle, characterizes specific content for the law. Aristotle’s theory of natural law is controversial. Objections: Not everyone believes happiness is the purpose of human life. Hart claims that the law simply cannot have any kind of content. So he tries to define what that content must be. He believes the content may be specified minimally so that it covers all systems of law.

Minimal Content Each human being has a natural desire to continue living. Our society is filled with terms such as: desire, benefit, harm, pleasure, pain, disease, safety. A great many values surround survival. Law is a way of organizing a community. When people live together their mutual interests are how to survive and do so cooperatively.

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

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

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

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

Five Facts of Human Existence There are five facts of human existence which determine the specific content of law. These are specifically aimed at promoting survival. The following truisms make it a “natural necessity” for the laws to protect people, private property, and promises.

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

Approximate Equality Humans are not ‘in fact’ equal to each other. Some of us are stronger than others, smarter, faster, and more capable of dominating. Approximate equality is another rule of “mutual forbearance and compromise.” Each person must, under the law, be considered equal. Each person has equal interests to protect. People should withhold the temptation to exploit the weak, unintelligent, innocent, naïve, etc.

Limited Altruism A moderate balance of altruism is desirable. We should restrict selfish behavior and serve the interests of others. Social life would be destroyed with brutish aggression and selfishness were not curtailed.

Limited Resources People should be allowed limited ownership of assets. There must be prohibitions against indiscriminate entry and use of one’s private assets whether it’s land, food, or some other thing. We should not steal another person’s things. Again this is a minimal requirement for living together in a community.

Rules are Static These rules do not vary from one individual to another. There can by dynamic rules which allow citizens to transfer private property and enter into contracts. The basic rules remain the same.

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

Summary The five truisms, says Hart, are required for any doctrine of Natural Law. These require no specific content (such as that which would be required by an Aristotelian system of natural law based on purposes). All propositions and truisms laid down here are grounded in natural facts of human beings: the desire for survival.

Quick Questions 1. What were Hart’s objections to other versions of natural law? 2. Can you name the five truisms? 3. What are the three propositions?

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