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... mining the validity of a rule as a law. Thus, if a rule has never been endorsed by legal precedent, it would be very difficult for such a rule to gain ground in legal validity. Hart attempts to show that his theory of law differs from Austins view of law in a way that it lays out a new and improved form of positivism. He argues that a complete legal society is comprised of a system of primary and secondary rules.
This, he contends, is the true essence of law. With these rules a person is able to understand what the law is (rules of recognition), how it evolves (rules of change) and where it comes from (rules of adjudication). More importantly, in Harts view, a person can also explain the reason why a person follows the law (social pressure, maintenance of society, and social interest as superior to personal interest). After laying out his new and improved positivism, Hart sees it necessary to dwell in an attempt to unravel a very controversial question: Is law and morality connected? Hart begins his discussion by entertaining the idea that there is some overlap between morality and law. One very apparent overlap is in their usage of words, both applying words like rights, obligations, and duties into their argumentation.
Another characteristic that they both share is the way in which they operate without the consent of the people that live under their rules. Hart recognizes that both law and morality utilize social pressure to gain conformity of its bounded people. Also, as a form of governing the people that live under their rules, law and morality deal with events that constantly reoccur in the lives of its people. Under these re occuring activities moral and legal obligations attempt to dictate to its people what to do and not do. Such moral codes, like those of the legal obligations and duties, require a sacrifice of personal interests that is necessary for the survival of the society.
Hart argues that Traditional Naturalism's simple belief of what is moral is law over simplifies the connection between law and morality. The naturalist argues that all things (animate and inanimate) proceed toward a specific good the end in which it is uniquely appropriate for that object. Hart contends that such a teleological view brings in too much metaphysics into a very simple fact of life. The main goal of all human beings is Survival. Humans, in their attempt to coexist with their fellow human being, accept certain rules of conduct that allow for their own survival and the survival of the society they are a part of. Thus, this goal is well served under, what Hart labels, the universally recognized principles of conduct that is present in both law and morality.
This is what Hart calls the minimum content of Natural Law. In essence, Harts argumentation is that due to humans aim for survival, there is a reason why one should expect certain similar content to arise in law and morality. Without such content, the ability of law and morality to best serve human beings would be diminished and people would not pay voluntary alliance to law and morality. As reaction to this lack of voluntary alliance, Hart states it would be impossible to persuade people to voluntarily conform. So it can be seen that Hart argues people in a society would expect to see certain contents in their laws and in their morality.
Due to this minimum content, Hart argues that there is a connection between law and morality and it can be seen in 6 forms. Firstly, there is a legal and moral connection of voluntarily obeying the power and authority of the system one lives under. Although, a person need not see him / herself as bound by such a moral obligation. Hart argues the that the stability of the system will still be intact if moral obedience to authority does not occur. A second form is that morality has an influence on law. It seems rational to follow Harts argument that it is virtually impossible to determine if law is really influenced by law.
But, if laws has such an influence or not, history has shown that law will survive either which way. A third argument is that judges may use their interpretation of law to argue some specific morality in thier rulings that they deem as helpful or necessary for society. Yet, there is also the counter argument that stress that judges are unable to apply social moral values because they are blind to them or are unable to apply them correctly. In support of this counter argument, consider the following example in American Jurisprudence: the justices on the U. S. Supreme Court is in a position to bestow their moral values on to their case opinions.
But, there will be cases were it deals with conditions and people that unfamiliar to the justices. Yet, the justices still apply their opinions, although they may be improperly applied or formulated. The fourth form of the law and morality connection is that of the criticism of law. Following along the lines of the second form, it is Harts argument that even if one was to state that a complete legal system requires conformity to some moral standard, the question that would arise is to what type of moral standard would be considered appropriate and to what extent should the legal system conform to such a standard.
Hart contends that regardless of a persons claim that the legal system must conform to the moral standards, is not necessary for the structured framework of primary and secondary rules. Due to such a framework, moral standards would be unable to alter any of the mechanisms that comprise this framework Fifthly, in dealing with the principles of legality and justice, Hart defines justice as being able to apply some rule of law to a variety of people without prejudice. Because of this definition, it logically proceeds that it is possible to apply an immoral law justly as long as one distributes it to a variety of people without prejudice. Thus, Hart has attempted to display the general idea that if morality was connected to law there would be no positive or negative affects to law. Lastly, on the issue of legal validity and resistance to law, Hart draws the line as to where his connection of law and morality ends.
To express both sides of the arguments Hart raises the grudge informer cases of Nazi Germany during World War II. On one side, Hart argues that there is the wider Positivists concept of law, and on the other is the narrower Naturalists concept of law. Hart states that adopting a wider concept will allow a person to take into account all rules that passed the conditions of secondary rules criteria. He warns that such a broad concept allows for a person to take into account the rules that counter and violates society's morality. Hart states that the main difference between the Positivists wider concept and the Naturalists narrow concept is that the narrow concept is unable to deal with rules that violate a society's morality. Because the Naturalists narrow concept is unable to take into account those rules that violated society's morality, Hart endorses the Positivists wider concept.
Harts main reason for endorsing the wider concept is that nothing is to be gained by overlooking rules that violated a society's morality. Such an argument is one of common sense. If one is to only look at one side of an argument, that person would lose the important and bigger picture of that arguement. For example, if a scientist was to devote her time only on one possible result of an experiment, rather than take into account all the possible results, can she truely state she has given proper legitimacy to her study? Thus, to turn a blind eye to the possibility that there are laws that violate society's morality, but was or is still a law of society, is to not deal with reality at all.
Hart acknowledges the fact that such moral violations is not beneficial for society. So, following Harts line of reasoning, the avoidance of a problem in society will not fix the problem that the society haves or had. Hart seems to end his debate with a very clear and persuasive tone. He has shown the common sense in not avoiding a rule just because of its abusive elements on morality. For like a scientist, a positivist can use this rules special characteristics to study its affects on society and then make a general, unbiased judgement of the rule.
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