IX. LAWS AND MORALS

There are many different types of relation between law and morals and there is nothing which can be profitably singled out for study as the relation between them. Instead it is important to distinguish some of the many different things which may be meant by the assertion or denial that law and morals are related. Sometimes what is asserted is a kind of connection which few if any have ever denied; but its indisputable existence may be wrongly accepted as a sign of some more doubtful connection, or even mistaken for it. Thus, it cannot seriously be disputed that the development of law, at all times and places, has in fact been profoundly influenced both by the conventional morality and ideals of particular social groups, and also by forms of enlightened moral criticism urged by individuals, whose moral horizon has transcended the morality currently accepted. But it is possible to take this truth illicitly, as a warrant for a different proposition: namely that a legal system must exhibit some specific conformity with morality or justice, or must rest on a widely diffused conviction that there is a moral obligation to obey it. Again, though this proposition may, in some sense, be true, it does not follow from it that the criteria of legal validity of particular laws used in a legal system must include, tacitly if not explicitly, a reference to morality or justice.

Many other questions besides these may be said to concern the relations between law and morals. In this chapter we shall discuss only two of them, though both will involve some consideration of many others. The first is a question which may still be illuminatingly described as the issue between Natural Law and Legal Positivism, though each of these titles has come to be used for a range of different theses about law and morals. Here we shall take Legal Positivism to mean the simple contention that it is in no sense a necessary truth that (p. 186) laws reproduce or satisfy certain demands of morality, though in fact they have often done so. But just because those who have taken this view have either been silent or differed very much concerning the nature of morality, it is necessary to consider two very different forms in which Legal Positivism has been rejected. One of these is expressed most clearly in the classical theories of Natural Law: that there are certain principles of human conduct, awaiting discovery by human reason, with which man-made law must conform if it is to be valid. The other takes a different, less rationalist view of morality, and offers a different account of the ways in which legal validity is connected with moral value. We shall consider the first of these in this section and the next.

In the vast literature from Plato to the present day which is dedicated to the assertion, and also to the denial, of the proposition that the ways in which men ought to behave may be discovered by human reason, the disputants on one side seem to say to those on the other, ‘You are blind if you cannot see this’ only to receive in reply, ‘You have been dreaming.’ This is so, because the claim that there are true principles of right conduct, rationally discoverable, has not usually been advanced as a separate doctrine but was originally presented, and for long defended, as part of a general conception of nature, inanimate and living. This outlook is, in many ways, antithetic to the general conception of nature which constitutes the framework of modern secular thought. Hence it is that, to its critics, Natural Law theory has seemed to spring from deep and old confusions from which modern thought has triumphantly freed itself; while to its advocates, the critics appear merely to insist on surface trivialities, ignoring profounder truths.

Thus many modern critics have thought that the claim that laws of proper conduct may be discovered by human reason rested on a simple ambiguity of the word ‘law’, and that when this ambiguity was exposed Natural Law received its deathblow. It is in this way that John Stuart Mill dealt with Montesquieu, who in the first chapter of the Esprit des Lois naïvely inquires why it is that, while inanimate things such as the stars and also animals obey ‘the law of their nature’, man does not do so but falls into sin. This, Mill thought, (p. 187) revealed the perennial confusion between laws which formulate the course or regularities of nature, and laws which require men to behave in certain ways. The former, which can be discovered by observation and reasoning, may be called ‘descriptive’ and it is for the scientist thus to discover them; the latter cannot be so established, for they are not statements or descriptions of facts, but are ‘prescriptions’ or demands that men shall behave in certain ways. The answer therefore to Montesquieu’s question is simple: prescriptive laws may be broken and yet remain laws, because that merely means that human beings do not do what they are told to do; but it is meaningless to say of the laws of nature, discovered by science, either that they can or cannot be broken. If the stars behave in ways contrary to the scientific laws which purport to describe their regular movements, these are not broken but they lose their title to be called ‘laws’ and must be reformulated. To these differences in the sense of ‘law’, there correspond systematic differences in the associated vocabulary of words like ‘must’, ‘bound to’, ‘ought’, and ‘should’. So, on this view, belief in Natural Law is reducible to a very simple fallacy: a failure to perceive the very different senses which those law-impregnated words can bear. It is as if the believer had failed to perceive the very different meaning of such words in ‘You are bound to report for military service’ and ‘It is bound to freeze if the wind goes round to the north’.

Critics like Bentham and Mill, who most fiercely attacked Natural Law, often attributed their opponents’ confusion between these distinct senses of law, to the survival of the belief that the observed regularities of nature were prescribed or decreed by a Divine Governor of the Universe. On such a theocratic view, the only difference between the law of gravity and the Ten Commandments—God’s law for Man—was, as Blackstone asserted, the relatively minor one that men, alone of created things, were endowed with reason and free will; and so unlike things, could discover and disobey the divine prescriptions. Natural Law has, however, not always been associated with belief in a Divine Governor or Lawgiver of the universe, and even where it has been, its characteristic tenets have not been logically dependent on that belief. Both the relevant sense of the word ‘natural’, which enters into (p. 188) Natural Law, and its general outlook minimizing the difference, so obvious and so important to modern minds, between prescriptive and descriptive laws, have their roots in Greek thought which was, for this purpose, quite secular. Indeed, the continued reassertion of some form of Natural Law doctrine is due in part to the fact that its appeal is independent of both divine and human authority, and to the fact that despite a terminology, and much metaphysics, which few could now accept, it contains certain elementary truths of importance for the understanding of both morality and law. These we shall endeavour to disentangle from their metaphysical setting and restate here in simpler terms.

For modern secular thought the world of inanimate and living things, animals, and men is a scene of recurrent kinds of events and changes which exemplify certain regular connections. Some at least of these, human beings have discovered and formulated as laws of nature. To understand nature is, in this modern view, to bring to bear on some part of it, knowledge of these regularities. The structure of great scientific theories does not of course mirror in any simple way observable fact, events, or changes; often, indeed, a great part of such theories consists of abstract mathematical formulations with no direct counterpart in observable fact. Their connection with observable events and changes lies in the fact that, from these abstract formulations, generalizations may be deduced which do refer to, and may be confirmed or falsified by, observable events. A scientific theory’s claim to forward our understanding of nature is therefore, in the last resort, dependent on its power to predict what will occur, which is based on generalizations of what regularly occurs. The law of gravity and the second law of thermodynamics are, for modern thought, laws of nature and more than mere mathematical constructions in virtue of the information they yield concerning the regularities of observable phenomena.

The doctrine of Natural Law is part of an older conception of nature in which the observable world is not merely a scene of such regularities, and knowledge of nature is not merely a knowledge of them. Instead, on this older outlook every nameable kind of existing thing, human, animate, and inanimate, is conceived not only as tending to maintain itself in (p. 189) existence but as proceeding towards a definite optimum state which is the specific good—or the end appropriate for it.

This is the teleological conception of nature as containing in itself levels of excellence which things realize. The stages by which a thing of any given kind progresses to its specific or proper end are regular, and may be formulated in generalizations describing the thing’s characteristic mode of change, or action, or development; to that extent the teleological view of nature overlaps with modern thought. The difference is that on the teleological view, the events regularly befalling things are not thought of merely as occurring regularly, and the questions whether they do occur regularly and whether they should occur or whether it is good that they occur are not regarded as separate questions. On the contrary (except for some rare monstrosities ascribed to ‘chance’), what generally occurs can both be explained and evaluated as good or what ought to occur, by exhibiting it as a step towards the proper end or goal of the thing concerned. The laws of a thing’s development therefore should show both how it should and how it does regularly behave or change.

This mode of thinking about nature seems strange when stated abstractly. It may appear less fantastic if we recall some of the ways in which even now we refer at least to living things, for a teleological view is still reflected in common ways of describing their development. Thus in the case of an acorn, growth into an oak is something which is not only regularly achieved by acorns, but is distinguished unlike its decay (which is also regular) as an optimum state of maturity in the light of which the intermediate stages are both explained and judged as good or bad, and the ‘functions’ of its various parts and structural changes identified. The normal growth of leaves is required if it is to obtain the moisture necessary for ‘full’ or ‘proper’ development, and it is the ‘function’ of leaves to supply this. Hence we think and speak of this growth as what ‘ought naturally to occur’. In the case of the action or movements of inanimate things, such ways of talking seem much less plausible unless they are artefacts designed by human beings for a purpose. The notion that a stone on falling to the ground is realizing some appropriate (p. 190) ‘end’ or returning to its ‘proper place’, like a horse galloping home to a stable, is now somewhat comic.

Indeed, one of the difficulties in understanding a teleological view of nature is that just as it minimized the differences between statements of what regularly happens and statements of what ought to happen, so too it minimizes the difference, so important in modern thought, between human beings with a purpose of their own which they consciously strive to realize and other living or inanimate things. For in the teleological view of the world, man, like other things, is thought of as tending towards a specific optimum state or end which is set for him and the fact, that he, unlike other things, may do this consciously, is not conceived as a radical difference between him and the rest of nature. This specific human end or good is in part, like that of other living things, a condition of biological maturity and developed physical powers; but it also includes, as its distinctively human element, a development and excellence of mind and character manifested in thought and conduct. Unlike other things, man is able by reasoning and reflection to discover what the attainment of this excellence of mind and character involves and to desire it. Yet even so, on this teleological view, this optimum state is not man’s good or end because he desires it; rather he desires it because it is already his natural end.

Again, much of this teleological point of view survives in some of the ways in which we think and speak of human beings. It is latent in our identification of certain things as human needs which it is good to satisfy and of certain things done to or suffered by human beings as harm or injury. Thus, though it is true that some men may refuse to eat or rest because they wish to die, we think of eating and resting as something more than things which men regularly do or just happen to desire. Food and rest are human needs, even if some refuse them when they are needed. Hence we say not only that it is natural for all men to eat and sleep, but that all men ought to eat and rest sometimes, or that it is naturally good to do these things. The force of the word ‘naturally’, in such judgments of human conduct, is to differentiate them both from judgments which reflect mere conventions or human prescriptions (‘You ought to take off your hat’), the content (p. 191) of which cannot be discovered by thought or reflection, and also from judgments which merely indicate what is required for achieving some particular objective, which at a given time one man may happen to have and another may not. The same outlook is present in our conception of the functions of bodily organs and the line we draw between these and mere causal properties. We say it is the function of the heart to circulate the blood, but not that it is the function of a cancerous growth to cause death.

These crude examples designed to illustrate teleological elements still alive in ordinary thought about human action, are drawn from the lowly sphere of biological fact which man shares with other animals. It will be rightly observed that what makes sense of this mode of thought and expression is something entirely obvious: it is the tacit assumption that the proper end of human activity is survival, and this rests on the simple contingent fact that most men most of the time wish to continue in existence. The actions which we speak of as those which are naturally good to do, are those which are required for survival; the notions of a human need, of harm, and of the function of bodily organs or changes rest on the same simple fact. Certainly if we stop here, we shall have only a very attenuated version of Natural Law: for the classical exponents of this outlook conceived of survival (perseverare in esse suo) as merely the lowest stratum in a much more complex and far more debatable concept of the human end or good for man. Aristotle included in it the disinterested cultivation of the human intellect, and Aquinas the knowledge of God, and both these represent values which may be and have been challenged. Yet other thinkers, Hobbes and Hume among them, have been willing to lower their sights: they have seen in the modest aim of survival the central indisputable element which gives empirical good sense to the terminology of Natural Law. ‘Human nature cannot by any means subsist without the association of individuals: and that association never could have place were no regard paid to the laws of equity and justice.’1

This simple thought has in fact very much to do with the (p. 192) characteristics of both law and morals, and it can be disentangled from more disputable parts of the general teleological outlook in which the end or good for man appears as a specific way of life about which, in fact, men may profoundly disagree. Moreover, we can, in referring to survival, discard, as too metaphysical for modern minds, the notion that this is something antecedently fixed which men necessarily desire because it is their proper goal or end. Instead we may hold it to be a mere contingent fact which could be otherwise, that in general men do desire to live, and that we may mean nothing more by calling survival a human goal or end than that men do desire it. Yet even if we think of it in this common-sense way, survival has still a special status in relation to human conduct and in our thought about it, which parallels the prominence and the necessity ascribed to it in the orthodox formulations of Natural Law. For it is not merely that an overwhelming majority of men do wish to live, even at the cost of hideous misery, but that this is reflected in whole structures of our thought and language, in terms of which we describe the world and each other. We could not subtract the general wish to live and leave intact concepts like danger and safety, harm and benefit, need and function, disease and cure; for these are ways of simultaneously describing and appraising things by reference to the contribution they make to survival which is accepted as an aim.

There are, however, simpler, less philosophical, considerations than these which show acceptance of survival as an aim to be necessary, in a sense more directly relevant to the discussion of human law and morals, We are committed to it as something presupposed by the terms of the discussion; for our concern is with social arrangements for continued existence, not with those of a suicide club. We wish to know whether, among these social arrangements, there are some which may illuminatingly be ranked as natural laws discoverable by reason, and what their relation is to human law and morality. To raise this or any other question concerning how men should live together, we must assume that their aim, generally speaking, is to live. From this point the argument is a simple one. Reflection on some very obvious generalizations—indeed truisms—concerning human nature and the world in which (p. 193) men live, show that as long as these hold good, there are certain rules of conduct which any social organization must contain if it is to be viable. Such rules do in fact constitute a common element in the law and conventional morality of all societies which have progressed to the point where these are distinguished as different forms of social control. With them are found, both in law and morals, much that is peculiar to a particular society and much that may seem arbitrary or a mere matter of choice. Such universally recognized principles of conduct which have a basis in elementary truths concerning human beings, their natural environment, and aims, may be considered the minimum content of Natural Law, in contrast with the more grandiose and more challengeable constructions which have often been proffered under that name. In the next section we shall consider, in the form of five truisms, the salient characteristics of human nature upon which this modest but important minimum rests.

2. THE MINIMUM CONTENT OF NATURAL LAW

In considering the simple truisms which we set forth here, and their connection with law and morals, it is important to observe that in each case the facts mentioned afford a reason why, given survival as an aim, law and morals should include a specific content. The general form of the argument is simply that without such a content laws and morals could not forward the minimum purpose of survival which men have in associating with each other. In the absence of this content men, as they are, would have no reason for obeying voluntarily any rules; and without a minimum of co-operation given voluntarily by those who find that it is in their interest to submit to and maintain the rules, coercion of others who would not voluntarily conform would be impossible. It is important to stress the distinctively rational connection between natural facts and the content of legal and moral rules in this approach, because it is both possible and important to inquire into quite different forms of connection between natural facts and legal or moral rules. Thus, the still young sciences of psychology and sociology may discover or may even have discovered that, unless certain physical, psychological, or economic conditions are satisfied, e.g. unless young children (p. 194) are fed and nurtured in certain ways within the family, no system of laws or code of morals can be established, or that only those laws can function successfully which conform to a certain type. Connections of this sort between natural conditions and systems of rules are not mediated by reasons; for they do not relate the existence of certain rules to the conscious aims or purpose of those whose rules they are. Being fed in infancy in a certain way may well be shown to be a necessary condition or even a cause of a population developing or maintaining a moral or legal code, but it is not a reason for their doing so. Such causal connections do not of course conflict with the connections which rest on purposes or conscious aims; they may indeed be considered more important or fundamental than the latter, since they may actually explain why human beings have those conscious aims or purposes which Natural Law takes as its starting-points. Causal explanations of this type do not rest on truisms nor are they mediated by conscious aims or purposes: they are for sociology or psychology like other sciences to establish by the methods of generalization and theory, resting on observation and, where possible, on experiment. Such connections therefore are of a different kind from those which relate the content of certain legal and moral rules to the facts stated in the following truisms.

(i) Human vulnerability. The common requirements of law and morality consist for the most part not of active services to be rendered but of forbearances, which are usually formulated in negative form as prohibitions. Of these the most important for social life are those that restrict the use of violence in killing or inflicting bodily harm. The basic character of such rules may be brought out in a question: If there were not these rules what point could there be for beings such as ourselves in having rules of any other kind? The force of this rhetorical question rests on the fact that men are both occasionally prone to, and normally vulnerable to, bodily attack. Yet though this is a truism it is not a necessary truth; for things might have been, and might one day be, otherwise. There are species of animals whose physical structure (including exoskeletons or a carapace) renders them virtually immune from attack by other members of their species and animals who have no organs enabling them to attack. If men (p. 195) were to lose their vulnerability to each other there would vanish one obvious reason for the most characteristic provision of law and morals: Thou shalt not kill.

(ii) Approximate equality. Men differ from each other in physical strength, agility, and even more in intellectual capacity. None the less it is a fact of quite major importance for the understanding of different forms of law and morality, that no individual is so much more powerful than others, that he is able, without co-operation, to dominate or subdue them for more than a short period. Even the strongest must sleep at times and, when asleep, loses temporarily his superiority. This fact of approximate equality, more than any other, makes obvious the necessity for a system of mutual forbearance and compromise which is the base of both legal and moral obligation. Social life with its rules requiring such forbearances is irksome at times; but it is at any rate less nasty, less brutish, and less short than unrestrained aggression for beings thus approximately equal. It is, of course, entirely consistent with this and an equal truism that when such a system of forbearance is established there will always be some who will wish to exploit it, by simultaneously living within its shelter and breaking its restrictions. This, indeed is, as we later show, one of the natural facts which makes the step from merely moral to organized, legal forms of control a necessary one. Again, things might have been otherwise. Instead of being approximately equal there might have been some men immensely stronger than others and better able to dispense with rest, either because some were in these ways far above the present average, or because most were far below it. Such exceptional men might have much to gain by aggression and little to gain from mutual forbearance or compromise with others. But we need not have recourse to the fantasy of giants among pygmies to see the cardinal importance of the fact of approximate equality: for it is illustrated better by the facts of international life, where there are (or were) vast disparities in strength and vulnerability between the states. This inequality, as we shall later see, between the units of international law is one of the things that has imparted to it a character so different from municipal law and limited the extent to which it is capable of operating as an organized coercive system. (p. 196)

(iii) Limited altruism. Men are not devils dominated by a wish to exterminate each other, and the demonstration that, given only the modest aim of survival, the basic rules of law and morals are necessities, must not be identified with the false view that men are predominantly selfish and have no disinterested interest in the survival and welfare of their fellows. But if men are not devils, neither are they angels; and the fact that they are a mean between these two extremes is something which makes a system of mutual forbearances both necessary and possible. With angels, never tempted to harm others, rules requiring forbearances would not be necessary. With devils prepared to destroy, reckless of the cost to themselves, they would be impossible. As things are, human altruism is limited in range and intermittent, and the tendencies to aggression are frequent enough to be fatal to social life if not controlled.

(iv) Limited resources. It is a merely contingent fact that human beings need food, clothes, and shelter; that these do not exist at hand in limitless abundance; but are scarce, have to be grown or won from nature, or have to be constructed by human toil. These facts alone make indispensable some minimal form of the institution of property (though not necessarily individual property), and the distinctive kind of rule which requires respect for it. The simplest forms of property are to be seen in rules excluding persons generally other than the ‘owner’ from entry on, or the use of land, or from taking or using material things. If crops are to grow, land must be secure from indiscriminate entry, and food must, in the intervals between its growth or capture and consumption, be secure from being taken by others. At all times and places life itself depends on these minimal forbearances. Again, in this respect, things might have been otherwise than they are. The human organism might have been constructed like plants, capable of extracting food from air, or what it needs might have grown without cultivation in limitless abundance.

The rules which we have so far discussed are static rules, in the sense that the obligations they impose and the incidence of these obligations are not variable by individuals. But the division of labour, which all but the smallest groups must develop to obtain adequate supplies, brings with it the need (p. 197) for rules which are dynamic in the sense that they enable individuals to create obligations and to vary their incidence. Among these are rules enabling men to transfer, exchange, or sell their products; for these transactions involve the capacity to alter the incidence of those initial rights and obligations which define the simplest form of property. The same inescapable division of labour, and perennial need for co-operation, are also factors which make other forms of dynamic or obligation-creating rule necessary in social life. These secure the recognition of promises as a source of obligation. By this device individuals are enabled by words, spoken or written, to make themselves liable to blame or punishment for failure to act in certain stipulated ways. Where altruism is not unlimited, a standing procedure providing for such self-binding operations is required in order to create a minimum form of confidence in the future behaviour of others, and to ensure the predictability necessary for cooperation. This is most obviously needed where what is to be exchanged or jointly planned are mutual services, or wherever goods which are to be exchanged or sold are not simultaneously or immediately available.

(v) Limited understanding and strength of will. The facts that make rules respecting persons, property, and promises necessary in social life are simple and their mutual benefits are obvious. Most men are capable of seeing them and of sacrificing the immediate short-term interests which conformity to such rules demands. They may indeed obey, from a variety of motives: some from prudential calculation that the sacrifices are worth the gains, some from a disinterested interest in the welfare of others, and some because they look upon the rules as worthy of respect in themselves and find their ideals in devotion to them. On the other hand, neither understanding of long-term interest, nor the strength or goodness of will, upon which the efficacy of these different motives towards obedience depends, are shared by all men alike. All are tempted at times to prefer their own immediate interests and, in the absence of a special organization for their detection and punishment, many would succumb to the temptation. No doubt the advantages of mutual forbearance are so palpable that the number and strength of those who would (p. 198) co-operate voluntarily in a coercive system will normally be greater than any likely combination of malefactors. Yet, except in very small closely-knit societies, submission to the system of restraints would be folly if there were no organization for the coercion of those who would then try to obtain the advantages of the system without submitting to its obligations. ‘Sanctions’ are therefore required not as the normal motive for obedience, but as a guarantee that those who would voluntarily obey shall not be sacrificed to those who would not. To obey, without this, would be to risk going to the wall. Given this standing danger, what reason demands is voluntary co-operation in a coercive system.

It is to be observed that the same natural fact of approximate equality between men is of crucial importance in the efficacy of organized sanctions. If some men were vastly more powerful than others, and so not dependent on their forbearance, the strength of the malefactors might exceed that of the supporters of law and order. Given such inequalities, the use of sanctions could not be successful and would involve dangers at least as great as those which they were designed to suppress. In these circumstances instead of social life being based on a system of mutual forbearances, with force used only intermittently against a minority of malefactors, the only viable system would be one in which the weak submitted to the strong on the best terms they could make and lived under their ‘protection’. This, because of the scarcity of resources, would lead to a number of conflicting power centres, each grouped round its ‘strong man’: these might intermittently war with each other, though the natural sanction, never negligible, of the risk of defeat might ensure an uneasy peace. Rules of a sort might then be accepted for the regulation of issues over which the ‘powers’ were unwilling to fight. Again we need not think in fanciful terms of pygmies and giants in order to understand the simple logistics of approximate equality and its importance for law. The international scene, where the units concerned have differed vastly in strength, affords illustration enough. For centuries the disparities between states have resulted in a system where organized sanctions have been impossible, and law has been confined to matters which did not affect ‘vital’ issues. How far atomic (p. 199) weapons, when available to all, will redress the balance of unequal power, and bring forms of control more closely resembling municipal criminal law, remains to be seen.

The simple truisms we have discussed not only disclose the core of good sense in the doctrine of Natural Law. They are of vital importance for the understanding of law and morals, and they explain why the definition of the basic forms of these in purely formal terms, without reference to any specific content or social needs, has proved so inadequate. Perhaps the major benefit to jurisprudence from this outlook is the escape it affords from certain misleading dichotomies which often obscure the discussion of the characteristics of law. Thus, for example, the traditional question whether every legal system must provide for sanctions can be presented in a fresh and clearer light, when we command the view of things presented by this simple version of Natural Law. We shall no longer have to choose between two unsuitable alternatives which are often taken as exhaustive: on the one hand, that of saying that this is required by ‘the’ meaning of the words ‘law’ or ‘legal system’, and on the other, that of saying that it is ‘just a fact’ that most legal systems do provide for sanctions. Neither of these alternatives is satisfactory. There are no settled principles forbidding the use of the word ‘law’ of systems where there are no centrally organized sanctions, and there is good reason (though no compulsion) for using the expression ‘international law’ of a system, which has none. On the other hand, we do need to distinguish the place that sanctions must have within a municipal system, if it is to serve the minimum purposes of beings constituted as men are. We can say, given the setting of natural facts and aims, which make sanctions both possible and necessary in a municipal system, that this is a natural necessity; and some such phrase is needed also to convey the status of the minimum forms of protection for persons, property, and promises which are similarly indispensable features of municipal law. It is in this form that we should reply to the positivist thesis that ‘law may have any content’. For it is a truth of some importance that for the adequate description not only of law but of many other social institutions, a place must be reserved, besides definitions and ordinary statements of fact, for a third category of statements: (p. 200) those the truth of which is contingent on human beings and the world they live in retaining the salient characteristics which they have.

The protections and benefits provided by the system of mutual forbearances which underlies both law and morals may, in different societies, be extended to very different ranges of persons. It is true that the denial of these elementary protections to any class of human beings, willing to accept the corresponding restrictions, would offend the principles of morality and justice to which all modern states pay, at any rate, lip-service. Their professed moral outlook is, in general, permeated by the conception that in these fundamentals at least, human beings are entitled to be treated alike and that differences of treatment require more to justify them than just an appeal to the interests of others.

Yet it is plain that neither the law nor the accepted morality of societies need extend their minimal protections and benefits to all within their scope, and often they have not done so. In slave-owning societies the sense that the slaves are human beings, not mere objects to be used, may be lost by the dominant group, who may yet remain morally most sensitive to each other ‘s claims and interests. Huckleberry Finn, when asked if the explosion of a steamboat boiler had hurt anyone, replied, ‘No’m: killed a nigger.’Aunt Sally’s comment ‘Well it’s lucky because sometimes people do get hurt’ sums up a whole morality which has often prevailed among men. Where it does prevail, as Huck found to his cost, to extend to slaves the concern for others which is natural between members of the dominant group may well be looked on as a grave moral offence, bringing with it all the sequelae of moral guilt. Nazi Germany and South Africa offer parallels unpleasantly near to us in time.

Though the law of some societies has occasionally been in advance of the accepted morality, normally law follows morality and even the homicide of a slave may be regarded only as a waste of public resources or as an offence against the master whose property he is. Even where slavery is not officially recognized, discriminations on grounds of race, colour, (p. 201) or creed may produce a legal system and a social morality which does not recognize that all men are entitled to a minimum of protection from others.

These painful facts of human history are enough to show that, though a society to be viable must offer some of its members a system of mutual forbearances, it need not, unfortunately, offer them to all. It is true, as we have already emphasized in discussing the need for and the possibility of sanctions, that if a system of rules is to be imposed by force on any, there must be a sufficient number who accept it voluntarily. Without their voluntary co-operation, thus creating authority, the coercive power of law and government cannot be established. But coercive power, thus established on its basis of authority, may be used in two principal ways. It may be exerted only against malefactors who, though they are afforded the protection of the rules, yet selfishly break them. On the other hand, it may be used to subdue and maintain, in a position of permanent inferiority, a subject group whose size, relatively to the master group, may be large or small, depending on the means of coercion, solidarity, and discipline available to the latter, and the helplessness or inability to organize of the former. For those thus oppressed there may be nothing in the system to command their loyalty but only things to fear. They are its victims, not its beneficiaries.

In the earlier chapters of this book we stressed the fact that the existence of a legal system is a social phenomenon which always presents two aspects, to both of which we must attend if our view of it is to be realistic. It involves the attitudes and behaviour involved in the voluntary acceptance of rules and also the simpler attitudes and behaviour involved in mere obedience or acquiescence.

Hence a society with law contains those who look upon its rules from the internal point of view as accepted standards of behaviour, and not merely as reliable predictions of what will befall them, at the hands of officials, if they disobey. But it also comprises those upon whom, either because they are malefactors or mere helpless victims of the system, these legal standards have to be imposed by force or threat of force; they are concerned with the rules merely as a source of possible punishment. The balance between these two components will (p. 202) be determined by many different factors. If the system is fair and caters genuinely for the vital interests of all those from whom it demands obedience, it may gain and retain the allegiance of most for most of the time, and will accordingly be stable. On the other hand, it may be a narrow and exclusive system run in the interests of the dominant group, and it may be made continually more repressive and unstable with the latent threat of upheaval. Between these two extremes various combinations of these attitudes to law are to be found, often in the same individual.

Reflection on this aspect of things reveals a sobering truth: the step from the simple form of society, where primary rules of obligation are the only means of social control, into the legal world with its centrally organized legislature, courts, officials, and sanctions brings its solid gains at a certain cost. The gains are those of adaptability to change, certainty, and efficiency, and these are immense; the cost is the risk that the centrally organized power may well be used for the oppression of numbers with whose support it can dispense, in a way that the simpler regime of primary rules could not. Because this risk has materialized and may do so again, the claim that there is some further way in which law must conform to morals beyond that which we have exhibited as the minimum content of Natural Law, needs very careful scrutiny. Many such assertions either fail to make clear the sense in which the connection between law and morals is alleged to be necessary; or upon examination they turn out to mean something which is both true and important, but which it is most confusing to present as a necessary connection between law and morals. We shall end this chapter by examining six forms of this claim.

(i) Power and authority. It is often said that a legal system must rest on a sense of moral obligation or on the conviction of the moral value of the system, since it does not and cannot rest on mere power of man over man. We have ourselves stressed, in the earlier chapters of this book, the inadequacy of orders backed by threats and habits of obedience for the understanding of the foundations of a legal system and the idea of legal validity. Not only do these require for their elucidation the notion of an accepted rule of recognition, as we (p. 203) have argued at length in Chapter VI, but, as we have seen in this chapter, a necessary condition of the existence of coercive power is that some at least must voluntarily co-operate in the system and accept its rules. In this sense it is true that the coercive power of law presupposes its accepted authority. But the dichotomy of ‘law based merely on power’ and ‘law which is accepted as morally binding’ is not exhaustive. Not only may vast numbers be coerced by laws which they do not regard as morally binding, but it is not even true that those who do accept the system voluntarily, must conceive of themselves as morally bound to do so, though the system will be most stable when they do so. In fact, their binding to the system may be based on many different considerations: calculations of long-term interest; disinterested interest in others; an unreflecting inherited or traditional attitude; or the mere wish to do as others do. There is indeed no reason why those who accept the authority of the system should not examine their conscience and decide that, morally, they ought not to accept it, yet for a variety of reasons continue to do so.

These commonplaces may have become obscured by the general use of the same vocabulary to express both the legal and the moral obligations which men acknowledge. Those who accept the authority of a legal system look upon it from the internal point of view, and express their sense of its requirements in internal statements couched in the normative language which is common to both law and morals: ‘I (You) ought’, ‘I (he) must’, ‘I (they) have an obligation’. Yet they are not thereby committed to a moral judgment that it is morally right to do what the law requires. No doubt if nothing else is said, there is a presumption that any one who speaks in these ways of his or others’ legal obligations, does not think that there is any moral or other reason against fulfilling them. This, however, does not show that nothing can be acknowledged as legally obligatory unless it is accepted as morally obligatory. The presumption which we have mentioned rests on the fact that it will often be pointless to acknowledge or point out a legal obligation, if the speaker has conclusive reasons, moral or otherwise, to urge against fulfilling it.

(ii) The influence of morality on law. The law of every modern (p. 204) state shows at a thousand points the influence of both the accepted social morality and wider moral ideals. These influences enter into law either abruptly and avowedly through legislation, or silently and piecemeal through the judicial process. In some systems, as in the United States, the ultimate criteria of legal validity explicitly incorporate principles of justice or substantive moral values; in other systems, as in England, where there are no formal restrictions on the competence of the supreme legislature, its legislation may yet no less scrupulously conform to justice or morality. The further ways in which law mirrors morality are myriad, and still insufficiently studied: statutes may be a mere legal shell and demand by their express terms to be filled out with the aid of moral principles; the range of enforceable contracts may be limited by reference to conceptions of morality and fairness; liability for both civil and criminal wrongs may be adjusted to prevailing views of moral responsibility. No ‘positivist’ could deny that these are facts, or that the stability of legal systems depends in part upon such types of correspondence with morals. If this is what is meant by the necessary connection of law and morals, its existence should be conceded.

(iii) Interpretation. Laws require interpretation if they are to be applied to concrete cases, and once the myths which obscure the nature of the judicial processes are dispelled by realistic study, it is patent, as we have shown in Chapter VII, that the open texture of law leaves a vast field for a creative activity which some call legislative. Neither in interpreting statutes nor precedents are judges confined to the alternatives of blind, arbitrary choice, or ‘mechanical’ deduction from rules with predetermined meaning. Very often their choice is guided by an assumption that the purpose of the rules which they are interpreting is a reasonable one, so that the rules are not intended to work injustice or offend settled moral principles. Judicial decision, especially on matters of high constitutional import, often involves a choice between moral values, and not merely the application of some single outstanding moral principle; for it is folly to believe that where the meaning of the law is in doubt, morality always has a clear answer to offer. At this point judges may again make a choice which is neither arbitrary nor mechanical; and here often display (p. 205) characteristic judicial virtues, the special appropriateness of which to legal decision explains why some feel reluctant to call such judicial activity ‘legislative’. These virtues are: impartiality and neutrality in surveying the alternatives; consideration for the interest of all who will be affected; and a concern to deploy some acceptable general principle as a reasoned basis for decision. No doubt because a plurality of such principles is always possible it cannot be demonstrated that a decision is uniquely correct: but it may be made acceptable as the reasoned product of informed impartial choice. In all this we have the ‘weighing’ and ‘balancing’ characteristic of the effort to do justice between competing interests.

Few would deny the importance of these elements, which may well be called ‘moral’, in rendering decisions acceptable; and the loose and changing tradition or canons of interpretation, which in most systems govern interpretation, often vaguely incorporate them. Yet if these facts are tendered as evidence of the necessary connection of law and morals, we need to remember that the same principles have been honoured nearly as much in the breach as in the observance. For, from Austin to the present day, reminders that such elements should guide decision have come, in the main, from critics who have found that judicial law-making has often been blind to social values, ‘automatic’, or inadequately reasoned.

(iv) The criticism of law. Sometimes the claim that there is a necessary connection between law and morality comes to no more than the assertion that a good legal system must conform at certain points, such as those already mentioned in the last paragraph, to the requirements of justice and morality. Some may regard this as an obvious truism; but it is not a tautology, and in fact, in the criticism of law, there may be disagreement both as to the appropriate moral standards and as to the required points of conformity. Does the morality, with which law must conform if it is to be good, mean the accepted morality of the group whose law it is, even though this may rest on superstition or may withhold its benefits and protection from slaves or subject classes? Or does morality mean standards which are enlightened in the sense that they rest on rational beliefs as to matters of fact, and accept all human beings as entitled to equal consideration and respect?

(p. 206) No doubt the contention that a legal system must treat all human beings within its scope as entitled to certain basic protections and freedoms, is now generally accepted as a statement of an ideal of obvious relevance in the criticism of law. Even where practice departs from it, lip service to this ideal is usually forthcoming. It may even be the case that a morality which does not take this view of the right of all men to equal consideration, can be shown by philosophy to be involved in some inner contradiction, dogmatism, or irrationality. If so, the enlightened morality which recognizes these rights has special credentials as the true morality, and is not just one among many possible moralities. These are claims which cannot be investigated here, but even if they are conceded, they cannot alter, and should not obscure, the fact that municipal legal systems, with their characteristic structure of primary and secondary rules, have long endured though they have flouted these principles of justice. What, if anything, is to be gained from denying that iniquitous rules are law, we consider below.

(v) Principles of legality and justice. It may be said that the distinction between a good legal system which conforms at certain points to morality and justice, and a legal system which does not, is a fallacious one, because a minimum of justice is necessarily realized whenever human behaviour is controlled by general rules publicly announced and judicially applied. Indeed we have already pointed out, 2 in analysing the idea of justice, that its simplest form (justice in the application of the law) consists in no more than taking seriously the notion that what is to be applied to a multiplicity of different persons is the same general rule, undeflected by prejudice, interest, or caprice. This impartiality is what the procedural standards known to English and American lawyers as principles of ‘Natural Justice’ are designed to secure. Hence, though the most odious laws may be justly applied, we have, in the bare notion of applying a general rule of law, the germ at least of justice.

Further aspects of this minimum form of justice which might well be called ‘natural’ emerge if we study what is in fact (p. 207) involved in any method of social control—rules of games as well as law—which consists primarily of general standards of conduct communicated to classes of persons, who are then expected to understand and conform to the rules without further official direction. If social control of this sort is to function, the rules must satisfy certain conditions: they must be intelligible and within the capacity of most to obey, and in general they must not be retrospective, though exceptionally they may be. This means that, for the most part, those who are eventually punished for breach of the rules will have had the ability and opportunity to obey. Plainly these features of control by rule are closely related to the requirements of justice which lawyers term principles of legality. Indeed one critic of positivism has seen in these aspects of control by rules, something amounting to a necessary connection between law and morality, and suggested that they be called ‘the inner morality of law’. Again, if this is what the necessary connection of law and morality means, we may accept it. It is unfortunately compatible with very great iniquity.

(vi) Legal validity and resistance to law. However incautiously they may have formulated their general outlook, few legal theorists classed as positivists would have been concerned to deny the forms of connection between law and morals discussed under the last five headings. What then was the concern of the great battle-cries of legal positivism: ‘The existence of law is one thing; its merit or demerit another’; 3 ‘The law of a State is not an ideal but something which actually exists … it is not that which ought to be, but that which is’; 4 ‘Legal norms may have any kind of content’? 5

What these thinkers were, in the main, concerned to promote was clarity and honesty in the formulation of the theoretical and moral issues raised by the existence of particular laws which were morally iniquitous but were enacted in proper form, clear in meaning, and satisfied all the acknowledged criteria of validity of a system. Their view was that, in thinking about such laws, both the theorist and the unfortunate official or private citizen who was called on to (p. 208) apply or obey them, could only be confused by an invitation to refuse the title of ‘law’ or ‘valid’ to them. They thought that, to confront these problems, simpler, more candid resources were available, which would bring into focus far better, every relevant intellectual and moral consideration: we should say, ‘This is law; but it is too iniquitous to be applied or obeyed.’

The opposed point of view is one which appears attractive when, after revolution or major upheavals, the Courts of a system have to consider their attitude to the moral iniquities committed in legal form by private citizens or officials under an earlier regime. Their punishment may be felt socially desirable, and yet, to procure it by frankly retrospective legislation, making criminal what was permitted or even required by the law of the earlier regime, may be difficult, itself morally odious, or perhaps not possible. In these circumstances it may seem natural to exploit the moral implications latent in the vocabulary of the law and especially in words like ius, recht, diritto, droit which are laden with the theory of Natural Law. It may then appear tempting to say that enactments which enjoined or permitted iniquity should not be recognized as valid, or have the quality of law, even if the system in which they were enacted acknowledged no restriction upon the legislative competence of its legislature. It is in this form that Natural Law arguments were revived in Germany after the last war in response to the acute social problems left by the iniquities of Nazi rule and its defeat. Should informers who, for selfish ends, procured the imprisonment of others for offences against monstrous statutes passed during the Nazi regime, be punished? Was it possible to convict them in the courts of post-war Germany on the footing that such statutes violated the Natural Law and were therefore void so that the victims’ imprisonment for breach of such statutes was in fact unlawful, and procuring it was itself an offence?6 Simple as the issue looks between those (p. 209) who would accept and those who would repudiate the view that morally iniquitous rules cannot be law, the disputants seem often very unclear as to its general character. It is true that we are here concerned with alternative ways of formulating a moral decision not to apply, obey, or allow others to plead in their defence morally iniquitous rules: yet the issue is ill presented as a verbal one. Neither side to the dispute would be content if they were told, ‘Yes: you are right, the correct way in English (or in German) of putting that sort of point is to say what you have said.’ So, though the positivist might point to a weight of English usage, showing that there is no contradiction in asserting that a rule of law is too iniquitous to be obeyed, and that it does not follow from the proposition that a rule is too iniquitous to obey that it is not a valid rule of law, their opponents would hardly regard this as disposing of the case.

Plainly we cannot grapple adequately with this issue if we see it as one concerning the proprieties of linguistic usage. For what really is at stake is the comparative merit of a wider and a narrower concept or way of classifying rules, which belong to a system of rules generally effective in social life. If we are to make a reasoned choice between these concepts, it must be because one is superior to the other in the way in which it will assist our theoretical inquiries, or advance and clarify our moral deliberations, or both.

The wider of these two rival concepts of law includes the narrower. If we adopt the wider concept, this will lead us in theoretical inquiries to group and consider together as ‘law’ all rules which are valid by the formal tests of a system of primary and secondary rules, even though some of them offend against a society’s own morality or against what we may hold to be an enlightened or true morality. If we adopt the narrower concept we shall exclude from ‘law’ such morally offensive rules. It seems clear that nothing is to be gained in the theoretical or scientific study of law as a social phenomenon by adopting the narrower concept: it would lead us to exclude certain rules even though they exhibit all the other complex characteristics of law. Nothing, surely, but confusion could follow from a proposal to leave the study of such rules to another discipline, and certainly no history or other form of legal study has found it profitable to do this. If we adopt (p. 210) the wider concept of law, we can accommodate within it the study of whatever special features morally iniquitous laws have, and the reaction of society to them. Hence the use of the narrower concept here must inevitably split, in a confusing way, our effort to understand both the development and potentialities of the specific method of social control to be seen in a system of primary and secondary rules. Study of its use involves study of its abuse.

What then of the practical merits of the narrower concept of law in moral deliberation? In what way is it better, when faced with morally iniquitous demands, to think ‘This is in no sense law’ rather than ‘This is law but too iniquitous to obey or apply’? Would this make men more clear-headed or readier to disobey when morality demands it? Would it lead to better ways of disposing of the problems such as the Nazi regime left behind? No doubt ideas have their influence; but it scarcely seems that an effort to train and educate men in the use of a narrower concept of legal validity, in which there is no place for valid but morally iniquitous laws, is likely to lead to a stiffening of resistance to evil, in the face of threats of organized power, or a clearer realization of what is morally at stake when obedience is demanded. So long as human beings can gain sufficient co-operation from some to enable them to dominate others, they will use the forms of law as one of their instruments. Wicked men will enact wicked rules which others will enforce. What surely is most needed in order to make men clear-sighted in confronting the official abuse of power, is that they should preserve the sense that the certification of something as legally valid is not conclusive of the question of obedience, and that, however great the aura of majesty or authority which the official system may have, its demands must in the end be submitted to a moral scrutiny. This sense, that there is something outside the official system, by reference to which in the last resort the individual must solve his problems of obedience, is surely more likely to be kept alive among those who are accustomed to think that rules of law may be iniquitous, than among those who think that nothing iniquitous can anywhere have the status of law.

But perhaps a stronger reason for preferring the wider concept of law, which will enable us to think and say, ‘This (p. 211) is law but iniquitous’, is that to withhold legal recognition from iniquitous rules may grossly oversimplify the variety of moral issues to which they give rise. Older writers who, like Bentham and Austin, insisted on the distinction between what law is and what it ought to be, did so partly because they thought that unless men kept these separate they might, without counting the cost to society, make hasty judgments that laws were invalid and ought not to be obeyed. But besides this danger of anarchy, which they may well have overrated, there is another form of oversimplification. If we narrow our point of view and think only of the person who is called upon to obey evil rules, we may regard it as a matter of indifference whether or not he thinks that he is faced with a valid rule of ‘law’ so long as he sees its moral iniquity and does what morality requires. But besides the moral question of obedience (Am I to do this evil thing?) there is Socrates’ question of submission: Am I to submit to punishment for disobedience or make my escape? There is also the question which confronted the post-war German courts, ‘Are we to punish those who did evil things when they were permitted by evil rules then in force?’ These questions raise very different problems of morality and justice, which we need to consider independently of each other: they cannot be solved by a refusal, made once and for all, to recognize evil laws as valid for any purpose. This is too crude a way with delicate and complex moral issues.

A concept of law which allows the invalidity of law to be distinguished from its immorality, enables us to see the complexity and variety of these separate issues; whereas a narrow concept of law which denies legal validity to iniquitous rules may blind us to them. It may be conceded that the German informers, who for selfish ends procured the punishment of others under monstrous laws, did what morality forbad; yet morality may also demand that the state should punish only those who, in doing evil, did what the state at the time forbad. This is the principle of nulla poena sine lege. If inroads have to be made on this principle in order to avert something held to be a greater evil than its sacrifice, it is vital that the issues at stake be clearly identified. A case of retroactive punishment should not be made to look like an ordinary case of (p. 212) punishment for an act illegal at the time. At least it can be claimed for the simple positivist doctrine that morally iniquitous rules may still be law, that this offers no disguise for the choice between evils which, in extreme circumstances, may have to be made.

CHAPTER IX NOTES

Page 185. Natural Law. The existence of a vast literature of comment on classical, scholastic, and modern conceptions of Natural Law and the ambiguities of the expression ‘positivism’ (see below) often make it difficult to see precisely what issue is at stake when Natural Law is opposed to Legal Positivism. An effort is made in the text to identify one such issue. But very little can be gained from a discussion of this subject if only secondary sources are read. Some first-hand acquaintance with the vocabulary and philosophical presuppositions of the primary sources is indispensable. The following represent an easily accessible minimum. Aristotle, Physics, ii, chap. 8 (trans. Ross, Oxford); Aquinas, Summa Theologica, I-II, Quaestiones 90–7 (available with translation in D’Entrèves, Aquinas: Selected Political Writings, Oxford, 1948); Grotius, On the Law of War and Peace; Prolegomena (trans. in The Classics of International Law, vol. 3, Oxford, 1925); Blackstone, Commentaries, Introduction, s. 2.

Page 185. Legal Positivism. The expression ‘positivism’ is used in contemporary Anglo-American literature to designate one or more of the following contentions: (1) that laws are commands of human beings; (2) that there is no necessary connection between law and morals, or law as it is and law as it ought to be; (3) that the analysis or study of meanings of legal concepts is an important study to be distinguished from (though in no way hostile to) historical inquiries, sociological inquiries, and the critical appraisal of law in terms of morals, social aims, functions, &c.; (4) that a legal system is a ‘closed logical system’ in which correct decisions can be deduced from predetermined legal rules by logical means alone; (5) that moral judgments cannot be established, as statements of fact can, by rational argument, evidence or proof (‘non cognitivism in ethics’). Bentham and Austin held the views expressed in (1), (2), and (3) but not those in (4) and (5); Kelsen holds those expressed in (2), (3), and (5) but not those in (1) or (4). Contention (4)is often ascribed to ‘analytical jurists’ but apparently without good reason. In continental literature the expression ‘positivism’ is often used for the general repudiation of the claim that some principles or rules of human conduct are discoverable by reason alone. See the valuable discussion of the ambiguities of ‘positivism’ by Ago, op. cit., in 51 American Journal of International Law (1957).

Page 186. Mill on Natural Law. See his Essay on Nature in Nature, the Utility of Religion and Theism.

Page 187. Blackstone and Bentham on Natural Law. Blackstone, loc. cit., and Bentham, Comment on the Commentaries, ss. 1–6.

Page 193. The minimum content of natural law. This empirical version of natural law is based on Hobbes, Leviathan, chaps. 14 and 15, and Hume, Treatise of Human Nature, Book III, part 2; esp. ss. 2 and 4–7.

Page 200. Huckleberry Finn. Mark Twain’s novel is a profound study of the moral dilemma created by the existence of a social morality which runs counter to the sympathies of an individual and to humanitarianism. It is a valuable corrective of the identification of all morality with the latter.

Page 200. Slavery. For Aristotle a slave was ‘a living instrument’. (Politics, I, chaps. 2–4).

Page 203. The influence of morality on law. Valuable studies of the ways in which the development of law has been influenced by morality are Ames, ‘Law and Morals’, 22 HLR (1908); Pound, Law and Morals (1926); Goodhart, English Law and the Moral Law (1953). Austin fully recognized this factual or causal connection. See The Province, Lecture V, p. 162.

Page 204. Interpretation. On the place of moral considerations in the interpretation of law see Lamont, The Value Judgment, pp. 296–31; Wechsler, ‘Towards Neutral Principles of Constitutional Law’, 73 HLR i, p. 960; Hart, op. cit., in 71 HLR, pp. 606–15, and Fuller’s criticism, ib. 661 ad fin. For Austin’s recognition of the area left open for judicial choice between ‘competing analogies’ and his criticism of the judges’ failure to adapt their decisions to the standard of utility, see The Lectures, Lectures 37 and 38.

Page 205. Criticism of law and the right of all men to equal consideration. See Benn and Peters, Social Principles and the Democratic State, chaps. 2 and 5, and Baier, The Moral Point of View, chap. 8, for the view that the recognition of such a right is not merely one among many possible moralities but a defining feature of true morality.

Page 206. Principles of legality and justice. See Hall, Principles of Criminal Law, chap. i and, for the ‘internal morality of law’, see Fuller, op. cit., 71 HLR (1958), pp. 644–8.

Page 208. Revival of Natural Law doctrines in post-war Germany. See for a discussion of the later views of G. Radbruch, Hart, and reply by Fuller in op. cit. in 71 HLR (1958). The discussion there of the decision of the Oberlandsgericht Bamberg of July 1949, in which a wife who had denounced her husband for an offence against a Nazi statute of 1934 was convicted of unlawfully depriving him of his freedom, proceeded on the footing that the account of the case in 64 HLR (1951), p. 1005, was correct and that the German court held the statute of 1934 to be invalid. The accuracy of this account has recently been challenged by Pappe, ‘On the Validity of Judicial Decisions in the Nazi Era’, 23 MLR (1960). Dr Pappe’s criticism is well founded and the case as discussed by Hart should strictly be regarded as hypothetical. As Dr Pappe shows (op. cit., p. 263), in the actual case the court (Provincial Court of Appeal), after accepting the theoretical possibility that statutes might be unlawful if they violated Natural Law, held that the Nazi statute in question did not violate it; the accused was held guilty of an unlawful deprivation of liberty since she had no duty to inform, but did so for purely personal reasons and must have realized that to do so was in the circumstances ‘contrary to the sound conscience and sense of justice of all decent human beings’. Dr Pappe’s careful analysis of a decision of the German Supreme Court in a similar case should be studied (ib., p. 268 ad fin.).

CHAPTER IX 3rd ed. NOTES

Pages 185–6. Positivism and the ‘separability thesis’. Hart says ‘it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality’. (In his Holmes Lecture he says ‘there is no necessary connection between law and morals’: H. L. A. Hart, ‘Positivism and the Separation of Law and Morals’ (1957) 71 Harvard Law Review 593, at 601 n. 25.) This separability thesis is puzzling, not least because Hart himself appears to defend two necessary connections between law and morality, in the connection between rules and justice (see Notes to 159–60) and in the ‘minimum content’ thesis (see Note to 193). For various attempts to sort out the puzzle see John Gardner, ‘Legal Positivism: 5½ Myths’, chap. 2 of his Law as a Leap of Faith, Matthew H. Kramer, ‘On The Separability of Law and Morality’ (2004) 17 Canadian Journal of Law and Jurisprudence 315; James Morauta, ‘Three Separation Theses’ (2004) 23 Law and Philosophy 111; and Leslie Green, ‘Positivism and the Inseparability of Law and Morals’ (2008) 83 New York University Law Review 1035.

Pages 185–93. Classical theories of natural law. For a descendant of the view Hart describes, but with neo-Thomist inflections, see John Finnis, Natural Law and Natural Rights; also Mark C. Murphy, Natural Law in Jurisprudence and Politics (Cambridge University Press, 2006). Compare Nigel Simmonds, Law as a Moral Idea (Oxford University Press, 2007). On the relationships between natural law and positivism see John Finnis, ‘The Truth in Legal Positivism’, chap. 7 of his Philosophy of Law. On the (lack of) relationship between natural law moral theories, theories of legal interpretation, and natural law jurisprudential theories see Philip Soper ‘Some Confusions about Natural Law’ (1992) 90 Michigan Law Review 2393.

Pages 193–200. The ‘minimum content’ thesis. No system of rules is a legal system unless it addresses itself to a ‘minimum content’ of things that are universally valuable, given human nature and the world we live in. For amendments to Hart’s list see Neil MacCormick, H. L. A. Hart 92–9; and John Finnis, Natural Law and Natural Rights, chap. IV. For a different approach to the necessary content of law see Joseph Raz, Practical Reason and Norms 162–70.

Page 203. The shared vocabulary of law and morality. For a different explanation of why law and morality share terms like ‘obligation’, ‘right’, ‘liberty’, etc. see Joseph Raz, The Authority of Law, chap. 8. Hart responds in his Essays on Bentham 153–61.

Pages 203–4. The incorporation of morality in law. Here, and more insistently in the Postscript, Hart says that ‘In some systems … the ultimate criteria of legal validity explicitly incorporate principles of justice or substantive moral values … ‘. Hart calls this ‘soft’ positivism; it is now usually called the ‘incorporation thesis’ or ‘inclusive legal positivism’. The literature can be technical. For a good overview see K. E. Himma, ‘Inclusive Legal Positivism’ in Jules Coleman and Scott Shapiro eds., The Oxford Handbook of Jurisprudence and Philosophy of Law. For criticism of Hart’s position see Joseph Raz, The Authority of Law, chap. 3, and Raz, Between Authority and Interpretation, chap. 7. Developing the inclusive positivist position are Jules Coleman, ‘Negative and Positive Positivism’ (1982) 11 Journal of Legal Studies 139; Jules Coleman , The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory (Oxford University Press, 2001), chap. 8; and W. J. Waluchow, Inclusive Legal Positivism (Oxford University Press, 1994). Dworkin criticizes Hart’s approach (as adopted by Philip Soper and David Lyons) in Taking Rights Seriously 345–50; he criticizes Coleman’s approach in ‘Thirty Years On’ (2002) 115 Harvard Law Review 1655.

Pages 206–7. Principles of legality and justice. Lon L. Fuller’s account is influential: The Morality of Law (rev. edn., Yale University Press, 1969) 46–91; and see Hart’s review ‘Lon L. Fuller, “The Morality of Law” ‘, chap. 16 of his Essays in Jurisprudence and Philosophy. On the significance of the disputes between Hart and Fuller see the papers in Peter Cane ed., The Hart–Fuller Debate: 50 Years On (Hart Publishing, 2010). Raz discusses the relationship between the rule of law and the nature of law in The Authority of Law, chap. 11. Dworkin re-articulates his theory around the value of the rule of law (‘legality’) in ‘Hart’s Postscript and the Character of Political Philosophy’ (2004) 24 Oxford Journal of Legal Studies 1, 23–37.

Pages 207–12. Legal validity and resistance to law. For a contemporary version of Radbruch’s thesis that laws that do not at least attempt to secure justice are invalid, see Robert Alexy, The Argument from Injustice: A Reply to Legal Positivism (Bonnie L. Paulson and Stanley L. Paulson trs., Oxford University Press, 2002). On the moral claims of law to our obedience, see Joseph Raz, The Authority of Law, chaps. 12–15; A. J. Simmons, Moral Principles and Political Obligations (Princeton University Press, 1979); Leslie Green, The Authority of the State; W. A. Edmundson, Three Anarchical Fallacies: An Essay on Political Authority (Cambridge University Press, 1998).

Pages 208–12. Defending a ‘broad’ concept of law. Several writers develop Hart’s claim that a positivistic concept of law could ‘advance and clarify our moral deliberations’ (209). Hart never says this claim is needed to make his case for the soundness of his analysis: he regards it either as a supplementary consideration, or as a reply to those who charge that the broad concept of law is politically dangerous. In the literature there is also an ambiguity between the claim that the concept of law ought to be adjusted to bring morally good outcomes and the claim that the content of the law ought to be adjusted to bring morally good outcomes (for example, by attempting to narrow judicial duty to the application of source-based materials). Compare: Neil MacCormick, ‘A Moralistic Case for A-Moralistic Law’ (1985) 20 Valparaiso Law Review 1; Thomas Campbell, The Legal Theory of Ethical Positivism (Dartmouth, 1996); Jeremy Waldron, ‘Normative (or Ethical) Positivism’ in Jules Coleman ed., Hart’s Postscript; and Liam Murphy, ‘The Political Question about the Concept of Law’ in ibid.

FOOTNOTES CHAPTER IX

  1. Hume, Treatise of Human Nature, m. ii, ‘Of Justice and Injustice’. ↩

  2. p. 160 above. ↩

  3. Austin, The Province of Jurisprudence Defined, Lecture V, pp. 184–5. ↩

  4. Gray, The Nature and Sources of the Law, s. 213. ↩

  5. Kelsen, General Theory of Law and State, p. 113. ↩

  6. See the judgment of 27 July 1949, Oberlandesgericht Bamberg, 5 Süddeutsche Juristen-Zeitung, 207: discussed at length in H. L. A. Hart, ‘Legal Positivism and the Separation of Law and Morals’, in 71. Harvard L. Rev. (1958), 598, and in L. Fuller, ‘Positivism and Fidelity to Law’, ibid., p. 630. But note corrected account of this judgment below, pp. 303–4. ↩