HLA HART’S NATURALISTIC FOUNDATION OF LAW- A- CRITICAL EXAMINATION

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HLA HART’S NATURALISTIC FOUNDATION OF LAW- A- CRITICAL EXAMINATION

ABSTRACT

Natural Law theory is famously the origin of the maxim lex injusta non est lex, an aphorism that divulges traditional Natural Law theorists support of an absolute connection between law and morality. Yet, modern doctrines of Natural Law have sought a departure from the autocratic nature of morality. This dissertation will consider one such departure, in John Finnis’ Natural Law and Natural Rights. It will examine whether Finnis’ stance on morality within the context of Natural Law is consistent with that of traditional Natural Law theorists and go on to explore the consequences of any divergences that arise.

CHAPTER ONE:

BACKGROUND OF THE STUDY

There can be no dispute on the diversity of legal theories. From the legal conservatism of the Sabinian jurists to the sovereign command theory posited by John Austin2, theories of law may differ in a variety of ways, from their “substance to [their] organisation and style.” An examination of the substance of a theory is arguably most important as it facilitates a search for the common thread that groups theories together under such headings as ‘Natural Law’ or ‘Legal Positivism’. This classification of legal theories into schools of thought poses three distinct advantages.

Firstly, it makes the study of law more organised and coherent. Students of law, in particular will benefit from a concise categorization of legal theories in their aim to understand jurisprudence. Secondly, it poses the intrinsic advantage of comparison within similar entities, allowing a theory to be judged against others within its group. Lastly, a group of theories classified under one term can be critiqued as a whole. The entire group can be evaluated for its relevance and practicability. However, this can only be achieved if the fundamental characteristics (‘common thread’) of the group are defined with enough clarity to say with certainty whether a theory is or is not a part of that group. Yet, it is the search for this ‘common thread’ that proves most difficult, and it is what this dissertation embarks upon.

This paper will aim its attention at the group of Natural Law, using John Finnis’ Natural Law and Natural Rights as a focal lens to critically examine the group’s foundations. As “one of the most prominent and important advocates and defenders of

Natural Law theory” in modern times, Finnis and his work serve as appropriate devices for considering the true elements of Natural Law theory and contrasting modern Natural

Law theory with traditional Natural Law theory.

The prominence of Finnis as a Natural Law theorist despite, as this paper will argue, his divergence from traditional Natural Law theory suggests that his theory may still exist in harmony with traditional Natural Law theory as two different subgroups under the heading of Natural Law. This paper will seek to oppose this claim, proposing that there is a single criteria that a legal theory must meet in order to be categorized as a Natural Law theory and prevent “a fictional, weak hybrid view” of the school of thought.

It is, however, of importance to note Joseph Raz’s argument on the dangers of referring to schools of thought. Raz writes that “[one] of the unattractive tendencies of contemporary legal and political philosophy [is where a commentator] does not discuss any-one’s views but a family of views. This allows one to construct one’s target by selecting features from a variety of authors so that the combined pictures is in fact no one’s views, and all those cited as adhering to it would disagree with it.” These dangers as set out by Raz will be avoided by close scrutiny and proper attribution of ideas to individuals within the Natural Law school of thought. The “combined picture”7 will consequently offer an accurate depiction of the views of each individual. This will also aid in the presentation of a credible ‘common thread’ running through the Natural Law school.

Though some, such as Weinreb, may argue that “there is little agreement about what counts as natural law,” an informed interpretation of Natural Law will highlight that morality is a paramount element of any theory claiming to be within this group. The arguments put forth on the identity of Natural Law will therefore seek to remedy the misconception that “Natural Law theorists [have failed] to give univocal or unequivocal meaning to the term.” The timeworn question of ‘what is Natural Law?’ will be answered herewith: Natural Law theory, as established by the likes of Plato, Cicero and Aquinas, is a theory defined by its marriage of legality and morality.

In discussing morality, the term is often inflicted with ambiguity. This paper will adopt the word’s ordinary meaning of “a doctrine or system of moral conduct” , with

‘moral’ further defined as “of or relating to principles of right and wrong in behaviour” . Similarly, the motif of obligation will take the everyday definition of “something one is bound to do” . The interchangeable concepts of legality and validity, however, will be defined in a manner more appropriate to the discussion that will be had. The natural meanings of legal or legality are “deriving authority from or founded on law” and “having a formal status derived from law” . However, as this paper focuses not on the law itself, but rather on the theoretical examination of law, these definitions are unsuitable. In discussing legality, the jurists and philosophers whose works will be examined sought to derive authority from notions other than law (i.e. from morality, justice, human flourishing). Legality or validity, when referred to in forthcoming sections, will hence be defined as ‘effected by or in law.’ This will mirror the fact that jurisprudence works in reverse so as contemplate what H L A Hart deems the “persistent question” of what is law? Thus, the principles examined in theoretical studies of law are not derived from law, they are prescribed to law.

1.2 BRIEF BIOGRAPHY OF H.L.A. HART

Herbert Lionel Adolphus Hart, commonly known as H.L.A. Hart, was a prominent British legal philosopher born on July 18, 1907, in Harrogate, England, and he passed away on December 19, 1992. Hart made significant contributions to the fields of jurisprudence and legal philosophy, and his work continues to influence legal thought and philosophy to this day. Here’s a brief biography of H.L.A. Hart:

Early Life and Education:

H.L.A. Hart was born into a Jewish family in England.

He studied at Bradford Grammar School and then went on to New College, Oxford, where he read classics and philosophy. He later studied law.

Academic Career:

Hart became a fellow of New College, Oxford, in 1932 and went on to teach law there.

During his academic career, Hart made significant contributions to the philosophy of law and political philosophy.

Influence on Legal Philosophy:

Hart is best known for his work in legal philosophy, particularly for his book “The Concept of Law,” published in 1961. This book remains a cornerstone of contemporary legal philosophy.

In “The Concept of Law,” Hart introduced important ideas such as the distinction between primary and secondary rules, the concept of the “Rule of Recognition,” and the role of social facts in the foundation of legal systems.

Critique of Legal Positivism:

Hart’s work was instrumental in advancing the theory of legal positivism, a perspective that emphasizes the separation of law from morality.

He critiqued classical legal positivism, offering a nuanced and more sophisticated understanding of the relationship between law and morality.

Later Career and Achievements:

In addition to his work in legal philosophy, Hart also made contributions to political philosophy and the philosophy of language.

He held various prestigious positions, including the chair of jurisprudence at Oxford University and was a fellow of the British Academy.

Legacy:

H.L.A. Hart’s work has had a profound and lasting impact on legal philosophy, and his ideas continue to be influential in contemporary discussions on the nature of law and its relationship with morality.

Scholars and legal theorists continue to engage with and build upon Hart’s ideas.

H.L.A. Hart’s contributions to jurisprudence and legal philosophy have had a lasting influence on the field, and his writings remain essential reading for students and scholars interested in the philosophy of law.

1.3 Overview of the significance of H.L.A. Hart’s work in legal philosophy

The significance of H.L.A. Hart’s work in legal philosophy is profound and enduring. His contributions have had a lasting impact on the field, and his ideas continue to shape the way scholars and practitioners think about the nature of law and its relationship with morality. Here’s an overview of the significance of H.L.A. Hart’s work in legal philosophy:

Clarification of Legal Positivism:

H.L.A. Hart’s work, particularly his influential book “The Concept of Law,” played a pivotal role in clarifying and advancing the theory of legal positivism.

He refined and modernized the positivist perspective by introducing key concepts, such as the “Rule of Recognition” and the distinction between primary and secondary rules. These ideas helped to provide a more sophisticated understanding of the nature of law and its separation from morality.

Separation of Law and Morality:

Hart’s writings emphasized the idea that law and morality should be conceptually distinct. He argued that the existence and validity of legal norms do not depend on their moral acceptability.

This distinction is central to legal positivism and has had a significant influence on discussions about the nature of law and its foundation.

Normative Legal Theory:

Hart introduced a normative dimension to legal philosophy, highlighting the importance of secondary rules that govern primary rules. This framework has been crucial for analyzing how legal systems function and how they can be evaluated.

His exploration of the concept of a “legal system” as a union of primary and secondary rules remains a cornerstone of contemporary legal theory.

Critique of Classical Legal Positivism:

Hart’s critical examination of classical legal positivism provided a more nuanced perspective that addressed the limitations of earlier positivist theories.

He acknowledged the importance of social facts, conventions, and practices in the determination of legal rules, which added depth to the positivist perspective.

Influence on Contemporary Legal Philosophy:

H.L.A. Hart’s work continues to be widely cited and debated in contemporary legal philosophy. Legal scholars and theorists engage with his ideas, building upon and critiquing his work.

His writings have had a profound influence on the development of jurisprudential thought, shaping how we analyze and understand the nature of law.

Legal and Academic Legacy:

Hart held prestigious positions in academia, including the chair of jurisprudence at Oxford University. His work has influenced generations of legal scholars, students, and practitioners.

“The Concept of Law” remains a seminal text in the field, and his legacy endures through the scholars and theorists he inspired.

In summary, H.L.A. Hart’s work in legal philosophy has significantly advanced our understanding of the nature of law, the separation of law and morality, and the functioning of legal systems. His contributions have left a lasting mark on the field of jurisprudence and continue to be at the forefront of contemporary legal philosophy discussions.

1.4 PURPOSE AND SCOPE OF THE EXAMINATION

The purpose and scope of the examination of H.L.A. Hart’s naturalistic foundation of law are essential elements to define in order to guide the study and analysis. Here’s an overview of the purpose and scope of such an examination:

Purpose:

Critical Analysis: The primary purpose of the examination is to critically assess H.L.A. Hart’s naturalistic foundation of law, particularly as outlined in his work “The Concept of Law.” It involves a thorough and critical examination of his ideas, arguments, and the implications of his legal philosophy.

Evaluation of Significance: The examination aims to evaluate the significance and impact of Hart’s work on legal philosophy, jurisprudence, and the broader field of law. This includes understanding how his ideas have influenced and shaped legal thought and practice.

Engagement with Debates: It seeks to engage with the ongoing debates and discussions related to Hart’s naturalistic approach. This may involve addressing criticisms, alternative interpretations, and contemporary applications of his ideas.

Contributions to Jurisprudence: The examination intends to highlight the contributions that H.L.A. Hart has made to the field of jurisprudence, including his development of legal positivism, the normative dimension of law, and his critique of classical legal positivism.

Scope:

Hart’s Legal Philosophy: The examination will focus on H.L.A. Hart’s legal philosophy, with particular emphasis on his theory of the nature of law, the concept of the “Rule of Recognition,” and the role of social facts in the foundation of legal systems.

Concept of Law: It will delve into the core concepts presented in Hart’s seminal work “The Concept of Law.” This includes primary and secondary rules, the idea of a legal system, and the implications of the separation of law and morality.

Comparison with Legal Positivism: The scope will involve a comparison of Hart’s naturalistic approach with classical legal positivism, highlighting how he advanced and refined the positivist perspective.

Contemporary Relevance: The examination will explore the contemporary relevance of Hart’s ideas in legal philosophy and the broader legal field. This includes looking at how his concepts are applied in modern legal theory and practice.

Normative Dimension: It will examine the normative dimension of Hart’s theory, focusing on how primary and secondary rules function within a legal system and the implications for evaluating the effectiveness and legitimacy of legal systems.

Critiques and Debates: The scope extends to considering criticisms and alternative interpretations of Hart’s work, as well as engaging with current debates and discussions in the field of legal philosophy that relate to his ideas.

Legacy: The examination will also touch upon H.L.A. Hart’s lasting legacy in legal philosophy and jurisprudence and how his work continues to influence contemporary scholars and practitioners.

By defining a clear purpose and scope for the examination of H.L.A. Hart’s naturalistic foundation of law, you can guide your study and analysis, ensuring a focused and comprehensive exploration of his contributions and their significance.

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