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In this chapter, Hart dealt on law and its connections with justice and morality.

Initially, he discussed what he thought to be the clearest interpretation on the


necessary connection between law and morality, i.e. the one associated with the
Thomist tradition of Natural Law. This consists of a twofold contention: first, there are
certain principles of true morality or justice, discoverable by human reason without
the aid of revelation; and second, man-made laws which conflict with these principles
are not valid law. Another point of view is that conflict between law and even the
most fundamental requirements of morality is not sufficient to deprive a rule of its
status as law; and that for a legal system to exist there must be a wide, though not
necessarily universal recognition of a moral obligation to obey the law. However, this
may be overridden in specific cases by a stronger moral obligation not to obey specific
morally iniquitous laws.

Hart extensively discussed the principles of justice. He criticized the frequent


usages by lawyers of the words "just" and "unjust" in praising or condemning law or
its administration as if the ideas of justice and morality are coextensive considering
that justice, to his mind, is a distinct segment of morality. He cited the case of a father
guilty of gross cruelty to his child as one to have done something morally wrong, bad,
or even wicked or to have disregarded his moral obligation or duty to his child. It is
not accurate to describe it "unjust". "Unjust" would become appropriate if the man had
arbitrarily selected one of his children for more severe punishment than those given to
others guilty of the same fault, or if he had punished the child for some offense
without taking steps to see that he really was the wrongdoer. One might intelligibly
claim that a law was good because it was just, or that it was bad because it was unjust,
but not that it was just because good, or unjust because bad.

He said that justice is traditionally thought of as maintaining or restoring a


balance or proportion, and its leading precept is often formulated as "treat like cases
alike" and "treat different cases differently". However, this thinking is by itself
incomplete and, until supplemented, cannot afford any determinate guide to conduct.
The reason is that any set of human beings will resemble each other in some respects
and differ from each other in others. To fill it we must know when cases are to be
regarded as alike and what differences are relevant. Without this further supplement
we cannot proceed to criticize laws or other social arrangements as unjust.

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

It is thus necessary to characterize, in general terms, those principles, rules, and


standards relating to the conduct of individuals which belong to morality and make
conduct morally obligatory. He identified four cardinal features which are constantly
found together in those principles, rules, and standards of conduct which are most
commonly accounted moral under the following headings: (i) Importance; (ii)
Immunity from deliberate change; (iii) Voluntary character of moral offenses; and (iv)
The form of moral pressure.

(i) Importance. Any moral rule or standard is regarded as something of great


importance to maintain. It is manifested in many ways: first, moral standards are
maintained against the drive of strong passions which they restrict, and at the cost of
sacrificing considerable personal interest; second, the serious forms of social pressure
are exerted not only to obtain conformity in individual cases, but to secure that moral
standards are taught or communicated as a matter of course to all in society; third, if
moral standards were not generally accepted, far-reaching and distasteful changes in
the life of individuals would occur.

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.

(ii) Immunity from deliberate change. It is characteristic of a legal system that


new legal rules can be introduced and old ones changed or repealed by deliberate
enactment, even though some laws may be protected from change by a written
constitution limiting the competence of the supreme legislature. By contrast moral
rules or principles cannot be brought into being or changed or eliminated in this way.

(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.

Nonetheless, admission of such excuses in all legal systems is qualified in many


different ways. The real or alleged difficulties of proof of psychological facts may lead
a legal system to refuse to investigate the actual mental states or capacities of
particular individuals, and, instead, to use 'objective tests', whereby the individual
charged with an offense is taken to have the capacities for control or ability to take
precautions that a normal or 'reasonable' man would have. Some systems may refuse
to consider 'volitional' as distinct from 'cognitive' disabilities; if so they confine the
range of excuses to lack of intention or defects of knowledge. Again, the legal system
may, for certain types of offense, impose 'strict liability' and make responsibility
independent of mens rea altogether, except perhaps for the minimum requirement that
the accused must possess normal muscular control.

It is therefore clear that legal responsibility is not necessarily excluded by the


demonstration that an accused person could not have kept the law which he has
broken; by contrast, in morals 'I could not help it' is always an excuse.

(iv) The form of moral pressure. A further distinguishing feature of morality is


the characteristic form of moral pressure which is exerted in its support. The typical
form of legal pressure may well be said to consist in threats of physical punishment or
unpleasant consequences. With morals on the other hand the typical form of pressure
consists in appeals to the respect for the rules, as things important in themselves,
which is presumed to be shared by those addressed. So moral pressure is
characteristically, though not exclusively, exerted not by threats or by appeals to fear
or interest, but by reminders of the moral character of the action contemplated and of
the demands of morality. In the background there are indeed the 'internal' moral
analogues of fear of punishment; for it is assumed that protests will awaken in those
addressed a sense of shame or guilt: they may be 'punished' by their own conscience.
Emphatic reminders of what the rules demand, appeals to conscience, and reliance on
the operation of guilt and remorse, are the characteristic and most prominent forms of
pressure used for the support of social morality

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.