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Thus, there is a certain complexity in the structure of the idea of justice which
may consist of two parts: a uniform or constant feature, summarized in the precept
'Treat like cases alike' and a shifting or varying criterion used in determining when,
for any given purpose, cases are alike or different.
Hart also made a distinction between moral and legal obligation. Laws may be
condemned as morally bad simply because they require men to do particular actions
which morality forbids individuals to do, or because they require men to abstain from
doing those which are morally obligatory.
II
In contrast with morals, the rules of deportment, manners, dress, some, though
not all, rules of law, occupy a relatively low place in the scale of serious importance.
They may be tiresome to follow, but they do not demand great sacrifice: no great
pressure is exerted to obtain conformity and no great alterations in other areas of
social life would follow if they were not observed or changed.
Legal rules may correspond with moral rules in the sense of requiring or
forbidding the same behavior. Those that do so are no doubt felt to be as important as
their moral counterparts. Yet importance is not essential to the status of all legal rules
as it is to that of morals. A legal rule may be generally thought quite unimportant to
maintain; indeed it may generally be agreed that it should be repealed: yet it remains
a legal rule until it is repealed.
(iii) Voluntary character of moral offenses. If a person, whose action has offended
against moral rules or principles, succeeds in establishing that he did this
unintentionally and in spite of every precaution that it was possible for him to take, he
is excused from moral responsibility, and to blame him in these circumstances would
itself be considered morally objectionable. Moral blame is therefore excluded because
he has done all that he could do. In any developed legal system the same is true up to
a point; for the general requirement of mens rea is an element in criminal responsibility
designed to secure that those who offend without carelessness, unwittingly, or in
conditions in which they lacked the bodily or mental capacity to conform to the law,
should be excused. A legal system would be open to serious moral condemnation if
this were not so, at any rate in cases of serious crimes carrying severe punishments.
III
Finally in Chapter VIII, Hart discussed moral ideals and social criticism. He said
that moral obligation and duty are the bedrock of social morality but they are not the
whole. In all moral codes there will be found some form of prohibition of the use of
violence, to persons or things, and requirements of truthfulness, fair dealing, and
respect for promises. The sacrifice of personal interest which such rules demand is the
price which must be paid in a world such as ours for living with others, and the
protection they afford is the minimum which, for beings such as ourselves, makes
living with others worthwhile.