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THE RELATIONSHIP OF LAW AND MORALITY
William Blackstone
Introduction, Polycarp Ikuenobe
THE CONTEMPORARY AMERICAN PHILOSOPHER William Blackstone examines the
nature of the relationship between law and morality, using H. L. A. Hart’s
theory as a backdrop. He examines Hart’s account of the nature of law and
morality and his denial of a necessary connection between them. For Hart,
law involves a union of primary and secondary rules. Primary rules determine what is acceptable conduct in society, and secondary rules—recognition, change, and adjudication—determine how to manipulate primary rules.
This view has a good explanatory power: it allows Hart to reject John
Austin’s command theory because it did not consider the internal point of
view, and to make a distinction between being obliged, which involves a
coercive situation and having an obligation, which involves having a rule.
He relied on this idea of rules to account for the nature of legal obligation, in
that the notion of obligation is a reference to the idea that some actions fall
under certain rules. For Hart, the union of primary and secondary rules constitutes a set of necessary and sufficient conditions for the proper use of the
concept of law. In addressing the nature of morality, he also tries to identify
some features are necessary and sufficient to talk about morality as distinct
from other principles.
Hart identifies four features of morality that can be used as formal criteria: they are important; they cannot be enacted or repealed; offenses can be
the result only of voluntary actions; and moral pressure is internal, in that it
is exerted by appealing to conscience. All other rules are different from
morality: they lack these features. Hart rejects the idea that morality is necessarily tied to rational self-interest and needs; rather, it has rational and general elements—general in the sense that it applies to everyone. This idea is
captured by the view that morality must have the features of being prescriptive and universalizable. This general element of morality makes it contentneutral, and the implication for Hart is that it cannot be a basis for evaluating
law and legal system. However, there are many views of morality based on
content that can be a basis for evaluating law, in which case there could be
an overlap between law and morality, in that they both involve pressure
THE RELATIONSHIP OF LAW AND MORALITY demanding conformity. This overlap seems to suggest certain facts about
human nature and circumstances create the natural necessity to have rules
and sanctions in the form of laws and morality. He conceives of moral principles Which could derive from such human nature and circumstance as
morality of natural necessity. So, Hart accepts that there may be a naturally
necessary relationship between law and morality, in that they both derive
from human nature and natural conditions. But a law which derives from this
situation will not be law per se if it has not been manipulated by the secondary rules. This view means that whatever is moral is not necessarily legal
and vice versa.
Blackstone suggests that there are a number of ways in which law and
morality may be said to be connected. He says there is a necessary connection at the primitive stage of development where morality and law converge
as primary rules—there are no secondary rules. There is also a necessary
connection in the sense that natural human conditions determine that there
be some enforceable rules to protect people and property. There is also a
contingent connection between morality and law based on the broad conception of morality, in that it is possible for a legal system to meet the minimum
natural conditions of trying to protect people and property and still be
immoral. There is some connection between morality and law, in that
because law is necessarily rule-oriented, it must have some minimum elements of justice. There is also a necessary connection in a different sense, in
that the existence of a legal system and law implies some moral obligation to
obey the laws. Blackstone argues that there is a causal connection, in the
sense that the moral sensitivity of a people is brought to bear on the laws of
the society in the process of making or applying the law. He argues that law
may also influence the morality of society but this two-way connection is not
a necessary one. The connection between law and morality may go beyond
mere causal connection, in that certain laws may indeed involve the enforcement of certain moral principles.
Blackstone suggests that there is a plausible, necessary connection
between morality and law that is closer to the strong natural law thesis. The
traditional natural law stance argues that there are universal moral principles
of conduct that can be discovered by reason to which all laws must conform.
This view presupposes that there is a nature about the world into that is built
the idea of end and purpose that morality and law are supposed to replicate.
This view of natural law has been criticized for being circular. Blackstone
tries to articulate a that does not defend the traditional natural law stance but
THE RELATIONSHIP OF LAW AND MORALITY indicates some elements of Hart’s minimum content of natural law and a
connection between morality, political theory, and law. It assumes that there
is an intrinsic value to human life that derives from human nature. The facts
about human nature suggests that people will choose to continue to live, thus
indicating that people appreciate the value of human existence. This implies
that people will necessarily accept the conditions required for the development and sustenance of life. People are rational and free, and they realize
that freedom is required for their wellbeing; hence they consider the requirements for sustaining life as a right. Since people have the same basic characteristics and needs, it follows that people will consider certain rights as
necessary for both themselves and others. Every rational person will accept
certain formal and material principles as necessary for existence. These conditions represent moral facts about human nature that are universal and independent of any political society. Legal and political structures are based on
these facts.
As you read Blackstone, consider and reflect on the following questions: What is Hart’s view of the nature of law and morality? How is Hart’s
formal account of morality contentneutral? Why is morality of natural necessity not necessarily connected to law? What are the different senses in which
law and morality can be said to be connected? How does Blackstone establish a necessary connection between morality and law?
T
he question of the relationship between law and morality is a perennial
one in jurisprudence. Hundreds of volumes have been written on the
question, but we are far from any definitive resolution of it. Indeed, given
the fundamental nature of the philosophical issues at stake, such a resolution
is unlikely. In this article I want to venture again into this terrain, stimulated
by a reexamination of Professor H. L. A. Hart’s Concept of Law and by the
recent attack on legal positivism mounted by Professor Ronald Dworkin,1
Hart’s successor in the Chair of Jurisprudence at Oxford University. As with
so many issues in jurisprudence, Hart’s illuminating analysis of the problem
is the point of reference from which one must proceed, and I will do so in
this article. I will explicate Hart’s concept of law and his concept of morality,
using these explications as a point of departure for several things: laying out
Excerpt from “The Relationship of Law and Morality,” by William T. Blackstone, reprinted
from Georgia Law Review 11 (1977), pp. 1359–75, 1385–91.
THE RELATIONSHIP OF LAW AND MORALITY a cluster of relationships, necessary and contingent, between law and morality; sizing up the famous Hart-Fuller debate on this relationship; locating the
major differences between Hart and Dworkin on the relationship between
law and morality and pointing to difficulties in both of their views; and
finally, formulating a concept of morality of my own, with the sort of relationship(s) it involves with law, and contrasting that concept with the views
of Hart and Dworkin.
I. HART’S CONCEPTS OF LAW AND MORALITY
Professor Hart remarks in The Concept of Law that “[t]here are many different types of relations between law and morals and there is nothing which can
be profitably singled out for study as the relation between them.”2 There is
much truth in this statement, and, of course, the types of attributed relationships depend upon the way in which one conceives of both law and morality.
We will begin, then, with Hart’s analysis of these concepts.
In order to elucidate Hart’s position on the relationship between law and
morals we must have a reasonably clear sense of what he means by law and
what he means by morality. Within Hart’s concept of law, are there necessary
and sufficient conditions for a given rule to be properly characterized as a
law? Within his concept of morality, are there necessary and sufficient conditions for a rule to be properly characterized as moral? If we can answer these
questions and if we can tie down these concepts in some fashion; perhaps we
can grasp Hart’s stance on the relationship between’ law and morality.
It would vastly simplify the question of the relationship between law
and morality if each of these concepts could be defined in terms of necessary
and sufficient conditions. But Hart, in spite of his talk about the “essence” of
law as a “union of primary and secondary rules,” and in spite of his specification of four features “which collectively serve to distinguish morality”3
from other sorts of rules, denies that such necessary and sufficient conditions
can be specified. This enormously complicates the issue of the relationship(s) between law and morality. For while various conditions normally
associated with the correct use of the terms “law” or “morality” can be
absent, we can (and do) continue to speak of certain rules as legal or moral
ones; moreover, conditions we think necessary for the correct application of
the terms “law” and “morality” may not be deemed sufficient for such application on any given occasion.
THE RELATIONSHIP OF LAW AND MORALITY A. HART’S CONCEPT OF LAW
Against the backdrop of his criticism of John Austin’s position that the “key
to the science of jurisprudence” is to be found in terms of the command of a
sovereign and the habitual obedience of the subject, Hart argues that the key
is to be found in the union of primary and secondary rules. “[M]ost of the
features of law which have proved most perplexing and have both provoked
and eluded the search for definition can best be rendered clear, if these two
types of rule and the interplay between them are understood.”4 The union of
these two types of rules has great explanatory power; the commandobedience theory does not. The former permits us to distinguish between
“having an obligation” and “being obliged.” “Being obliged” involves power
and coercion, and an analysis of legal obligation in terms of “being obliged”
gives us a concept of law as the gunman “writ large.” “Having an obligation,” on the other hand, involves reasons or justifying grounds for sanctions
or rules and an “acceptance” of the rules.5 We can understand neither moral
nor legal obligation unless we grasp this distinction. Having an obligation,
whether moral or legal, involves the existence of rules and sanctions supported not only by “serious pressure” but also by a rationale rooted in the
belief that the rules are “necessary to the maintenance of social life or some
highly prized feature of it.”6 The “characteristic use” of statements of obligation is to point out that the proper action of a given person falls under a certain rule (moral or legal) and hence under a certain rationale. The command
theory of law (and of morality) reduces obligation to coercive pressure and
reduces statements of obligation to predictions of what will probably happen
if rules are violated. It assumes what Hart calls the “external” point of view,
that of an observer who describes the rules of a game and the regularities of
observable behavior of those who play the game. Such an observer misses
out on “a whole dimension of the social life” of those he is observing,
namely, the rationale for the rules. Sensitivity to this rationale and the acceptance of it constitutes the “internal” point of view.
What are the two types of rules the union of which illuminates the concept of law and legal obligation? Hart calls them primary and secondary
rules. Primary rules concern “actions that individuals must or must not do,”7
and those rules “must contain in some form restrictions on the free use of
violence, theft, and deception to which human beings are tempted but which
they must, in general, repress, if they are to coexist in close proximity to
each other.”8 Secondary rules, on the other hand, are “concerned with the
primary rules themselves. They specify the ways in which the primary rules
THE RELATIONSHIP OF LAW AND MORALITY may be conclusively ascertained, introduced, eliminated, varied, and the fact
of their violation conclusively determined.”9 This specification overcomes a
variety of defects that afflict a society operating on primary rules alone:
uncertainty about the rules and their scope, the lack of means of changing
and eliminating rules or introducing new ones, and the lack of an agency for
settling disputes over violations of primary rules.
Hart characterizes secondary rules as rules of recognition, rules of
change, and rules of adjudication. The structure that they provide, along with
the primary rules of obligation, constitute “the heart of a legal system”10 in
the sense that they explain the core elements of such systems, including the
notions of “legislation, jurisdiction, validity and, generally, of legal powers,
private and public.”11
The union of primary and secondary rules, however, does not explain
everything about law,12 and we may legitimately speak about law when there
is no such union or where primary rules alone exist.13 Most modern legal
systems are characterized by such a union, by very complex rules of recognition and multiple sources of law, including written constitutions, legislative
enactments, and judicial precedents, and by a ranked order of primacy
among these sources. But there may be primitive legal systems where this is
not true.14 Nonetheless, Hart maintains that the development and recognition
of secondary rules in general marks the “step from the prelegal into the legal
world.”15 Given that step, the claim that a given rule of obligation is a valid
one is equivalent to saying that it has passed “all of the tests provided by the
rule of recognition” and that consequently it is “a rule of the system.”16 No
question of the validity or invalidity of the rule of recognition itself, which
defines the criteria of validity, can arise for Hart. A rule of recognition is
simply a brute fact. It exists “only as a complex, but normally concordant,
practice of the courts, officials, and private persons in identifying the law by
reference to certain criteria. Its existence is a matter of fact.”17 Given such a
practice(s), a “legal system” exists.18
B. HART’S CONCEPT OF MORALITY
Professor Hart sets forth his concept or definition of law (in terms of a union
of primary and secondary rules) not as a real definition or as a characterization of a set of necessary and sufficient conditions for the proper use of any
and every use of the term “law,” but as a helpful analysis of constituents that
are generally present in the use of this term. Those constituents—primary
rules of obligations and rules of recognition—enable us to define generally
THE RELATIONSHIP OF LAW AND MORALITY the concept of a legal system and that of a valid law. In the same way, Hart’s
analysis of the concept of morality or of a moral rule is set forth not as a real
definition or as a set of necessary and sufficient conditions for the correct
application of the term “morality” or “moral rule,” but as an attempt to characterize in general terms those conditions or criteria that make a rule, principle, or standard a moral one. He recognizes that the terms “morality,”
“ethics,” and “moral rule” have a kind of builtin “area of vagueness or open
texture,” much like the concepts of “law” and “legal rules.”19 Nonetheless,
there are general criteria that permit us to distinguish moral rules from other
sorts of rules, like those of etiquette, and to distinguish morality from legality. There may be disagreement over which rules meet these criteria and
hence over which rules are moral ones, and there may be disagreement on
the status—epistemological and metaphysical status—of the rules that meet
the criteria. But for Hart this does not mean that there are no criteria at all:
1. Formal Criteria.—Four basic features distinguish moral rules from
other sorts of rules, according to Hart, features that are “constantly
found together”20 in rules that we designate as moral.
(1) Moral rules and their maintenance are seen by society as having
“great importance,” in contrast with rules of etiquette and many,
though not all, rules of law, which rank lower on the scale of
importance. Unimportant legal rules remain legal rules if not
repealed. But it is “absurd” to speak of a rule as a moral one
unless it is deemed important. It is irrelevant to its status as a
moral rule that the grounds on which it is deemed important—
that it furthers some vital interest—turn out to be false.
(2) Moral rules cannot be enacted or repealed; they have an
“[i]mmunity from deliberate change.”21 Quite the opposite is true
of law. This immunity from deliberate change, however, does not
mean that morality cannot be changed over time by human decision. Nor does it mean that laws and the standards they embody
do not affect existing morality.
(3) Moral offenses are seen as being voluntary in nature. If one violates a moral norm unintentionally, he is excused. The nonvoluntary nature of the violation does not justify it, but it does
excuse it. Legal offenses or violations of legal norms, on the other
hand, are not always excused by demonstrating that the offender
acted unintentionally or unwillingly, or lacked the capacity to con-
THE RELATIONSHIP OF LAW AND MORALITY form to the law. Although such offenses in the law are sometimes
excused, and the doctrine of mens rea permits the exculpation of
some offenders, the law often requires strict liability independently
of mens rea.
(4) Moral pressure is different in form from legal pressure. Moral
pressure is generally exerted by appeals to one’s conscience, by
reminders of the importance of the rules, and by “reliance on the
operation of guilt and remorse.”22 Of course, threats of punishment and appeals to prudence may accompany moral pressure.
Legal pressure, on the other hand, is more characteristically
exerted by appeals to threat and force.
It is important to notice that these four criteria are formal ones. “They
make no direct reference to any necessary content which rules or standards
must have in order to be moral, nor even to any purpose which they must
serve in social life.”23 If rules fulfill the four criteria or functions stated
above, they are moral rules. They comprise part of a morality. The content of
such rules is irrelevant as far as their status as moral rules is concerned.
Hart recognizes that some moral philosophers go well beyond these four
criteria in defining morality. They insist that morality must be concerned
with human interests and needs, arguing that “nothing is to be recognized as
a part of morality unless it could survive rational criticism in terms of human
interests.”24 Hart denies this and maintains that, even if morality is circumscribed so that its concern is the fulfillment of human interests and needs,
there may be rules designed to promote these ends that cannot survive rational criticism and may even prevent the attainment of the objectives for
which they were designed. Rules may be irrational, unenlightened, or based
on superstition; they may be highly partial, concerned only with the needs
and interests of certain groups or classes; they may be cruel or repressive.
But these inadequacies, these criticisms based on any given substantive
moral principle or principles, do not render those rules bereft of their status
as moral rules. It simply means, for Hart, that moral rules are open to a variety of criticisms from a variety of points of view.
Hart obviously finds it desirable that moral rules satisfy the conditions
of “rationality” and “generality,” the latter involving the extension of rules of
protection “to all men who are able and willing themselves to observe such
restrictions.25 But he refuses to make such conditions necessary ones for a
rule to be a moral rule. He refuses to adopt this narrower view of morality
THE RELATIONSHIP OF LAW AND MORALITY not only because usage of the term “morality” favors his broader view, but
also because the narrower definition “would force us to divide in a very
unrealistic manner elements in a social structure which function in an identical manner, in the lives of those who live by it.”26 This broader definition
reemphasizes Hart’s point that it is the function of rules, not the content, that
makes them moral.
All of this seems to fit the stance of metaethical prescriptivists like
Richard Hare, who insist that judgments must fulfill two basic formal criteria to be moral judgments or rules, namely, universalizability and prescriptivity.27 They must fulfill a commending-guiding function in human life and
must be applied to all persons who are similar in the relevant respects; that
is, they must be rules. This much we can extract from Hart’s emphasis on
“importance” and on morality as rule-oriented.28 But moral rules need not
have a particular content. The content of moralities or the action-guides they
provide can be widely divergent; they may and do reflect widely different
ways of life. Furthermore, as both Hart and Hare emphasize, those differences of content, emphasis, and priorities “may prove irreconcilable.”29
There may be ultimate normative disagreements beyond the scope of rational adjudication. At least part of what sets off prescriptivists like Hare, and, I
add, Professor Hart from other moral theorists is that they deny that there is
some sort of necessary congruence between morality and rationality. John
Rawls and others argue for such a congruence. Though I cannot take on this
huge philosophical issue in this article, I will briefly discuss one facet of this
question later because it involves at least one of the central senses of the
relationship of morality and law.
One further point concerning Hart’s exclusion of material or content
factors in his definition of morality must be noted. Morality involves not
only obligations, rights, and duties, that is, a set of rules shared by a group or
a society. It also includes highly personal, individual ideals. Morality, Hart
says, “has its private aspect, shown in the individual’s recognition of ideals
which he need not share either with others or regard as a source of criticism
of others, still less of society as a whole.”30 This fact reinforces the decision
to exclude material content from the definition of morality, for if such content were included, these differing personal ideals, joined with different
social ideals, would leave us with an indefinite number of conflicting definitions of morality. A content-neutral definition of morality avoids this result.
But how content-neutral can a definition of morality be? I will turn to this
THE RELATIONSHIP OF LAW AND MORALITY question in a moment, for it is related to the issue of the congruence of rationality and morality mentioned above.
Another implication of Hart’s content-neutral definition of morality is a
denial of a necessary connection between morality and human interests and
needs.31 Hart does not deny that morality generally involves concern for
human interests and needs. The criterion of “importance” would surely
involve human interests and needs. But moral concerns need not be defined
exclusively in terms of human interests; and, if they are not, morality may
include the possibility of values that are non-anthropocentric. Morality may
include obligations (perhaps even rights) to non-human entities, to animals,
and to nature itself.
I do not think Hart had this sort of thing in mind in excluding concern
for human interests and needs as a necessary condition in order for an issue
to be a moral one. Others have exactly this point in mind in arguing for a
broader definition of morality and a broader theory of rights.32 They want to
expand the concept of morality and social justice to include the value and
rights of animals and nature, values and rights that are not reducible to
human values and rights. Hart’s content-neutral definition of morality has
the effect of at least permitting these concerns to be properly classified under
the rubric of morality. And that may be an advantage. But it also has the
effect of permitting almost anything, from Christianity to Nazism, to be
counted as a morality or as moral rules. His four formal criteria let a great
deal in the door, and classification of a rule as a moral one, under this
approach, implies neither praise nor blame, commendation nor condemnation. Moralities, like legal systems, are simply hard facts about our world. A
number of different types are out there, just as a number of different types of
unions of primary and secondary rules of obligation exist.
It is obvious that, given this content-neutral concept of morality, morality cannot serve as a ground for the critique of some existing law or legal
system. Some particular morality with particular content can be a ground for
such a critique, but morality as a general institution cannot. There is an overlap between the formal criteria, such as “importance” and “serious pressure,”
involved in the definition of law and those criteria involved in the definition
of morality. In that sense there is a connection. But there is no connection in
the sense that some substantive moral rule is necessarily part and parcel of
the law. Nor does morality offer substantive standards for the critique of law.
2. The Morality of Natural Necessity.—I want now to turn to a sense of
the term “morality” in Hart’s thought that is far from being totally
THE RELATIONSHIP OF LAW AND MORALITY content-neutral. It does not let in the door anything and everything
that meets the four formal criteria. Yet it is not so content-specific that
it excludes as moral rules those rules or stances that are simply
unusual or unconventional in this or that society. I will call this sense
of morality the “morality of natural necessity.” Unlike the wholly
content-neutral concept of morality, it may provide not only some
grounds for the moral critique of law but also grounds for speaking of
a necessary connection between law and morality.
Recall that both moral and legal obligation involve rules supported by
“serious pressure,” though the pressure is generally of different kinds in the
two cases. If the pressure takes the form of a physical sanction, Hart says
that we would be inclined to classify the obligation or rule as a legal one. If
the sanction relies basically on the “operation of feelings of shame, remorse,
and guilt”33 (the appeal to conscience), we tend to classify the obligation or
rule as moral. When both of these types of pressure are operative on the
same rule of conduct, “the question whether we are confronted with a rule of
morality or rudimentary law may not be susceptible of an answer.”34 This is
especially true of a primitive society where reasonably clear-cut secondary
rules of obligation—rules of recognition, change and adjudication—have not
developed. It may also be true of what is called “international law,” where
only moral pressure, not physical sanctions, generally carries the day.
But in the case of both moral and legal pressure, the pressure is brought
to bear because the rules “are believed to be necessary to the maintenance of
social life or some highly prized feature of it.”35 Both law and morals “make
demands which must obviously be satisfied by any group of human beings
who are to succeed in living together.”36 “[G]ranted . . . certain obvious truisms about human nature and the character of the physical world,” certain
rules—“some form of prohibition of the use of violence, to persons or things,
and requirements of truthfulness, fair-dealing, and respect for promises”—
“can be seen in fact to be essential.”37 Hart speaks of these facts as the “core
of indisputable truth in the doctrines of Natural Law”38 and describes the
above rules as the “minimum content” of natural law. As long as men desire
to survive and live together, their moral and legal codes of conduct must necessarily include these rules or sanctions protecting these ends.
The facts about human nature and the physical world to which Hart
refers are not metaphysical in the Aristotelian or Thomistic sense. In no way
does Hart invoke the ontological underpinning of traditional natural law theory, the doctrines of substance, essence, and final causes or “natural ends”
THE RELATIONSHIP OF LAW AND MORALITY that are somehow built into the structure of reality. This teleological conception of nature, the stance that moral and legal norms are part of the furniture
of the universe, discoverable by reason and observation, just as other facts, is
rejected by Hart. But reason and observation do disclose other facts, quite
ordinary ones, that make it reasonable to adopt certain sanctions, moral and
legal. Men desire to survive, but they are vulnerable to attack, one on the
other, and sometimes do engage in aggression. Their approximate equality in
terms of strength and intellect prevents anything more than short-term subjugation of one person or group by another. Furthermore, there are limited
resources for the sustenance of life. We cannot pull whatever we want or need
off of a tree. Also, when it comes to the distribution of the resources required
for the sustenance of life, men are not always altruistic. Most men, either
because of limited understanding or limited “strength of will” are tempted “to
prefer their own immediate interests”39 and would do so in the absence of
some set of sanctions, moral or legal. These familiar facts, expressed so well
by David Hume and Thomas Hobbes, require of any reasonable or prudent
man that he voluntarily cooperate in a system of moral and legal sanctions.
Without such a system, life may be short, nasty, and brutish.
All of these facts about man and nature, Hart recognizes, could be otherwise at some time in the future, given the evolution of man and nature. It is
conceivable that man will become totally altruistic, that he will develop what
Kant would call a “holy will,” undercutting all aggressive tendencies. It is
conceivable that the world will become a veritable Garden of Eden, with
goods and services available for everyone in limitless abundance, obviating
any concern about distribution, and so on. Given the world in which we live,
however, there must be moral and legal sanctions and protections for “persons, property, and promises.”40
Within this conception of morality—the morality of natural necessity—
there is a kind of necessary connection between morality and law. Given the
commitment to survival common to both perspectives, they both necessarily
endorse the minimum forms of protection specified above. They may diverge
greatly in the forms of pressure brought to bear to protect persons, property,
and promises. But they accept the same rationale, rooted in what Hart calls
“natural necessity,” for those minimum forms of protection. The morality of
natural necessity is the basis for, the primary rules of obligation in law.
In the “morality of natural necessity,” there are at least broad normative
principles embraced by the definition of morality itself (protection of persons, property, and promises) which would have the effect of excluding
THE RELATIONSHIP OF LAW AND MORALITY some rules as moral ones. These broad normative principles (and the facts of
nature on the basis of which reasonable men decide to adopt them) are “of
vital importance for the understanding of law and morals.”41 In fact, Hart
concedes that the definition of morality “in purely formal terms, without reference to any specific content or social needs, has proved . . . inadequate.”42
This amounts to a recognition of the bankruptcy of the contentneutral definition discussed earlier.
The implication for law of this rejection of a content-neutral definition
of morality is obvious. The common normative base for both law and morality in the “minimum content of natural law” means that not every rule can
properly be defined as a law even if it is a primary rule of obligation
(“actions which individuals must or must not do”) or even if it conforms to
secondary rules of obligation (operative rules of recognition, change, and
adjudication). It may be difficult to think of an example of rules that systematically permit the violation of persons, property, and promises; rules that do
not restrict in some way the free use of violence, theft, and deception; or
rules of recognition that would permit such. As Hart points out, our desire to
live and the restrictions conceived as necessary for survival are “reflected in
whole structures of our thought and language.”43 Nonetheless, if there were
such a rule, it would be excluded from being properly called “law” by the
necessary connection between law and morality rooted in their mutual
acceptance of the “minimum content of natural law.”
How far does this take one? How far in the direction of a necessary connection between law and morality and in providing grounds for the moral
critique of law does this move from a content-neutral definition of morality
to a morality of natural necessity take one? Not nearly as far as it appears at
first blush; for the minimal conditions of natural law can be fulfilled, Hart
declares, and yet morality and law can still be cruel, oppressive, inhumane,
and unjust. A society might be “viable,” it might sustain itself, and yet offer
only some of its members “a system of mutual forebearances . . . . [I]t need
not, unfortunately, offer them to all.”44 There may be moral systems and
legal systems that openly reject “the principle that prima facie human beings
were to be treated alike.”45 There may be moral systems and legal systems in
which equality is accepted but in which the laws equally applied to all
embody irrelevant criteria and hence result in grave injustice. There may be
moral or legal systems that embrace the principle of equality among all men
and yet are inhumane or cruel; they uniformly apply inhumane rules to all.
THE RELATIONSHIP OF LAW AND MORALITY Hart believes that all of these possibilities are left wide open by the concept
of morality and of law that meets the minimum conditions of natural law.
. . .
II. CONNECTIONS BETWEEN MORALITY AND LAW
We have seen a number of senses in which morality and law are related
within Hart’s theory and some senses in which they are not. I want now simply to enumerate these different senses, using the different senses of law and
morality that we have explicated. This will help to identify the sort of legal
positivism that Hart endorses and to identify the main points of disagreement
between Hart and Lon Fuller (who argues that, in some sense, there is a necessary connection between law and morality) and between Hart and Ronald
Dworkin (who also maintains that there is a necessary connection).
(1) We might observe that there is a necessary connection between law
and morality at primitive stages of the evolution of law where law is
defined in terms of certain primary rules of obligation but where there
are no secondary rules of obligation. Physical sanctions are applied by
the community at large, but they are neither closely defined nor
administered by officials?46 There are no explicit rules of recognition,
change, and adjudication. Whether the operative rule is one of morality or of law “may not be susceptible of an answer”47 under these conditions. This sense of a necessary connection between law and
morality is rather trivial since it seems to amount to the absence of
any distinction between them, though Hart does want to call such primary rules of obligation “rudimentary” law.
(2) There is a necessary connection between law and morality in the
sense that the morality of natural necessity is the ground or presupposition for the minimum forms of protection for persons, property, and
promises. This connection leaves open that law may be unjust or
immoral in the broader sense of morality. Furthermore, the “natural
necessity” is itself contingent. Man and the world could have been
otherwise and may in fact yet change, in which case those forms of
protection would no longer be seen as indispensable for either survival or a quality human existence.
(3) Given a broader sense of morality that includes not only the “minimum content of natural law” (roughly identified as the minimum
forms of protection for persons, property, and promises) but also tra-
THE RELATIONSHIP OF LAW AND MORALITY ditional norms like equality, justice, utility, liberty, and personal moral
ideals of various sorts, there is no necessary connection, only a contingent one, between law and morality. Laws and legal systems can
embrace the minimum conditions of natural law or the minimum
forms of protection and yet be grossly inegalitarian, unjust, inefficient, and generally immoral.
(4) To the extent that morality is rule-oriented (and even an existentialist
like Sartre agrees to this), it necessarily includes what might be called
the “minimum form of justice.”48 The rules may be unjust, embodying irrelevant criteria for the differential treatment of persons. But, as
rules, they are by definition applicable to all similar persons in similar
circumstances (even if in fact they are unjustly applied). This component of justice and morality is shared by any legal system or any law.
Therefore, in this sense there is a necessary connection between law
and morality, although for Hart this is a very weak sense. It is a formal
characteristic that law and morality hold in common, but it provides
no basis for the moral critique of law and is compatible with unjust
and immoral law in all of the substantive senses of morality and justice.
(5) There is no necessary connection between the existence of law or a
legal system and a moral obligation to obey the law. Those who affirm
this necessary connection seem to maintain that there can be no legal
obligation without the prior recognition of a moral obligation to obey
the law. Professor A. L. Goodhart, for example, states that:
the moral sense is one of the dominant forces not only in establishing
the efficacy of law, but also in its very existence. The jurist cannot
ignore the moral law as irrelevant to his subject because if he does so
then he will be ignoring one of the grounds on which the basic idea of
obligation is based.49
Hart does not deny that there is a moral obligation to obey the law. Nor
does he deny that there is an empirical connection between a felt moral obligation to obey the law and the existence of law or a legal system. But he
does deny that there is a necessary or analytic connection. As we have seen,
the concepts of “habit,” “obedience,” “command,” and “power” are not adequate to explain legal obligation (in contrast to “being obliged”) for Hart. In
addition to general obedience there must be reasons or a rationale for obedience and acceptance of constitutional rules or rules of recognition. But those
THE RELATIONSHIP OF LAW AND MORALITY reasons need not be moral ones, except in the minimal senses of (1), (2), and
(4) above.
(6) There is a causal connection between law and morality. The morality
of a society heavily influences the law, both in its formulation and its
interpretation. Moral values come explicitly into play as judges or
administrators interpret and apply the law, which is often formulated
to require such interpretation. Further, the morality of a society is also
influenced by the law, by what is legally permitted or required. There
is a two-way causal street. But this causal connection is by no means a
necessary one; law can exist and be applied not only without involving moral values but in fact while violating them. There are, in other
words, immoral or iniquitous rules of law.
(7) There is also a sense in which the activity of interpreting and applying
the law involves something more than a causal connection between
law and morality. The law may be framed to require more than interpretation, which brings moral values into play. It may be formulated
explicitly to embrace certain moral values or principles, in which case
the interpretation of law is at the same time the interpretation of a
moral principle. Many see the equal protection clause of the fourteenth amendment in just this way, for part of its very meaning is the
moral principle of equality (not simply universalizability); hence
there is a necessary connection between law and morality in that
sense. Furthermore, as Hart recognizes, “[j]udicial decision . . . often
involves a choice between moral values, and not merely the application of some single outstanding moral principle.”50 Both of these
additional connections, however, are consistent with Hart’s claim that
there is no necessary connection between law and morality generally—the claim that the criteria for what constitutes law do not necessarily embrace moral criteria.
. . .
III. MORALITY AND LAW
In conclusion I want to sketch briefly an account of the connection between
law and morality that comes much closer to the strong thesis of traditional
natural law philosophy than the Dworkin sense of the conceptual tie, the
Hart sense as embodied in his “minimum content of natural law” thesis,
which we called the morality of natural necessity, and the Fuller thesis as
THE RELATIONSHIP OF LAW AND MORALITY explicated above. The traditional natural law theorist maintained that there
are certain universal moral principles of human conduct discoverable by reason (but also available by divine revelation) to which law must conform if it
is to be valid law. He presupposed a metaphysical and epistemological
scheme concerning moral values, in which those values are part of the furniture of the universe, existing independent of man’s subjective preferences
and capable of being known by man. Part of that scheme was a teleological
conception of nature—ends or purposes are built into the world by the Creator or by nature—and an essentialistic conception of human nature in which
there are certain builtin functions or purposes of man. From a knowledge of
nature and man’s nature, universal moral norms, which are a necessary foundation for law, could be deduced.
The problems confronting natural law theory are well known. It stands
accused of circularity, of building into the concept of nature and human
nature the moral norms it then derives. Frederick Olafson, for example, in
criticizing natural law theory, states that there, is no noncircular way of showing that certain functions and activities are essential to what it means to be a
human being and that others are nonessential.51 Alf Ross has argued further
that, “[l]ike a harlot, natural law is at the disposal of everyone. The ideology
does not exist that cannot be defended by an appeal to the law of nature.”52
I have no interest in trying to defend traditional natural law theory
against these or similar objections, but there may be a defensible version of
natural law, which I have elsewhere called a “halfway house” between traditional natural law theory and conventionalism.53 It may constitute a much
stronger via media between traditional natural law legal philosophy and
legal positivism than that offered by Dworkin, though it does not advocate
the strict sense of a necessary connection in which there can be no immoral
law. My view has some close affinities to Hart’s “minimum content of natural law” but it goes well beyond it, in a direction suggested by Hart’s words
but never developed. I set this position forth tentatively and with trepidation,
involving as it does a concept of morality, an implicit political theory, and a
view of the relationship between law, political theory, and morality.
The halfway house to which I refer—might be seen as a secular version
of natural law.54 It presupposes the value of human life and rests upon an
appeal to human nature, sharing this base with natural law theorists like St.
Thomas and with positivists of different varieties, like John Austin, who
spoke of law “being bottomed in the common nature of man,”55 and Hart,
who appeals to the nature of man in his “minimum content of natural law.”
THE RELATIONSHIP OF LAW AND MORALITY Briefly, the position is as follows: (1) Given the fact of human existence and
the fact that nearly all human beings choose, whether consciously or not, to
continue to exist, thereby endorsing the value of human existence;56 and (2)
given the fact that in endorsing the value of human life, one at the same time
necessarily endorses the conditions required for the development and sustenance of that life—that is, there is no “is-good” gap, for in arming life one
also affirms the value of the nurture of those capacities constitutive of
human life; and (3) given, further, the fact that man is the sort of creature that
he is—that he possesses the capacities for rationality and freedom,57 fulfillment of which, at least to some degree, is required for his well-being, indeed,
for his continued existence as a human being; and (4) given, further, the fact
that each of us claims not only the desirability but the right to the conditions
required for the sustenance of our life and of our capacities as human beings;
and (5) given the fact that all human beings have the same characteristics or
basic capacities, and hence the same basic needs, and that there are no relevant grounds for excluding anyone from the same initial right to the conditions required to live a human life, then it follows that the same general
considerations or rights that one claims for oneself must also be affirmed for
others. Rational agents, persons who accept the principle that there are no
distinctions without relevant differences and that certain basic protections
and rules are required for human survival and social life, are moral agents.
They necessarily adopt the moral point of view. (This does not mean that
rational agents always act rationally.)
Note that, on this analysis, morality or the moral point of view requires
both formal and material conditions. The formal ones are universalizability
and prescriptivity (action-guides), stressed by Richard Hare. The material
ones are rules devised “for the good of all human beings,” as Professor Kurt
Baier puts it,58 or, as Professor Peter Strawson describes it, rules concerned
with “certain human interests [which] are so fundamental and so general that
they must be universally acknowledged in some form and to some degree in
any conceivable moral community.”59 Professor Hart also appears to adopt
similar material conditions for morality in his endorsement of the “minimum
content of natural law.” Rules that protect persons from harm and coercion,
establish and protect property, and govern promises and agreements are all
required for social relations and the sustenance of human life. It is true, as
Professor Hart notes that the specific rules required for these purposes may
change if human beings change or evolve in some way. If human beings
develop proboscuses that enable them to extract nutrients out of the air, this
THE RELATIONSHIP OF LAW AND MORALITY will affect the sort of property rules that are required. If they develop carapaces, certain rules of protection may not be required. But however human
beings change, unless they evolve out of their skins, so to speak, unless they
change so radically that the general traits of rationality and freedom are
extinct (in which case they would no longer be human in the sense in which
we use this word), they will require some sort of rules of protection of personal property, and promises. Those rules are part of the concept of morality.
A rational agent, behaving rationally, cannot choose not adopt the formal and
material principles that I have described.60
The position described above has some affinity with that held by Professor G. J. Warnock who suggests that there are “moral facts.” These facts are
not of the type stressed by the ethical intuitionists, but are features of the
world that are “necessarily relevant criteria of moral evaluation”;61 they are
not simply chosen or invented but are discovered (and discoverable) by
examining the world we live in and the nature of human beings. In rejecting
prescriptivism, Warnock says:
I believe that we all have, and should not let ourselves be bullied out of,
the conviction that at least some questions as to what is good or bad for
people, what is harmful or beneficial are not in any serious sense matters of opinion. That it is a bad thing to be tortured or starved, humiliated or hurt, is not an opinion: it is a fact. That it is better for people to
be loved and attended to, rather than hated or neglected, is again a plain
fact, not a matter of opinion. We find here no doubt a very wide penumbra of indeterminacy in which judgments must be made and may
diverge, in which opinions and attitudes may differ irreducibly: but who
believes, except for bad theoretical reasons, that there are no facts at
all.62
“Moral facts,” to use Warnock’s term, or what I call the formal and
material conditions of morality, do permit a wide range of differing moral
behaviors: They, permit different priorities, a “penumbra of indeterminacy”
of value judgments, different political attitudes, and the like. But they also
exclude certain things. However open-textured and flexible, the concept of
morality has some boundaries,63 and moral facts exclude many rules and
forms of behavior that Professor Hart would permit to be characterized as
rules or forms of morality. Rules that are “cruel,” “barbarous,” or arbitrary
are excluded by the concept of morality. Persons can act cruelly, barbarously,
and arbitrarily, of course, but they cannot choose such rules as moral rules,
as prescriptivists imply they can, because those sorts of rules are excluded
by the enterprise of morality itself.
THE RELATIONSHIP OF LAW AND MORALITY A number of problems confront the stance I have sketched. Can man’s
autonomy as a moral agent be reconciled with the existence of “moral facts,”
that is, the existence of the formal and material conditions specified, which
he cannot choose not to adopt as a rational agent? Are the formal and material conditions specified simply personal ideals or commitments or, in any
case, non-cognitive principles?64 To answer these questions would require
fleshing out the position much further, and I cannot do that within the scope
of this article. Rather I will briefly indicate the sort of connection between
law and morality that this conception of morality entails and the way in
which it differs from that of Hart and that of Dworkin.
The above conception of morality in effect provides general principles
of human good and moral rights. All human beings, qua human, have certain
basic needs and rights, and those rights exist independent of political society.
The raison d’etre of a society is seen as the preservation and protection of
those rights, rooted in the nature of man as a free and rational being. The
political principles of liberty, equality, security, and welfare are conceived as
resting on the more fundamental moral rights to these ends. (This is not to
say that all political obligations rest on moral ones.) In fact the political principles or the principles of a constitution of a political society may themselves
embody the moral rights (as is the case with the United States Constitution).
To the extent that political and legal principles are based upon these moral
rights or embody them (or embody other segments of morality), there is a
necessary connection between law and morality (though this is not to say
that all laws rest on moral rights or that there can be no immoral law). Hart
goes this far. Dworkin goes further, in effect declaring that no clear distinction can be drawn between law and morality, for law embraces moral principles like freedom, dignity, and fairness if they are not embodied in the
Constitution. But the necessary connection, for Dworkin, would seem to
depend on the moral and constitutional rights adopted in a given society, for
he appears to make no effort to establish that there are universal moral rights
or true moral principles. To be sure, he would have us “take rights seriously”
in ethics and jurisprudence.65 Rights are not simply rule-utilitarian devices to
be violated whenever the state or anyone else can show that such violation
maximizes utility. But he offers no grounds for a set of moral rights other
than the fact of their acceptance. Nor does he argue that such rights are necessary grounds, or ought to be grounds for law in all societies. How far
beyond a pure conventionalism on moral rights is Dworkin’s position?
THE RELATIONSHIP OF LAW AND MORALITY Professor Hart also “takes rights seriously” in a sense. Most societies, he
recognizes, are founded upon belief in certain rights, and our social lives
would be radically transformed without them. But he allows that there may,
be moral theories with no rights-emphasis at all. Also, although our language
of “special” and “general” rights presupposes one “natural right,” namely,
the equal right of all men to be free, that natural right has neither universal
status nor ontological grounding.66 For Hart, there seem to be no true moral
principles or rights that exist independent of the rights-conventions and
rights-language of a given society.
In contrast to Hart and Dworkin, the position developed above involves
a kind of correspondence theory of truth vis-à-vis moral rights. Moral rights
are not mere conventions but correspond to reality in the sense I have
already described. That correspondence does not mean that there is a necessary connection between morality and law, except in the obvious sense of the
necessary connection when the moral rights are embodied in the law. Thus,
the position is much closer to that of Hart than that of Dworkin. Nor does the
correspondence mean that everything that is immoral ought to be made illegal. But it does provide an excellent reason for the claim that law and morality ought to be related, that is, for requiring that law be cast to protect
fundamental moral rights. This claim is a long way from the claim that “an
unjust law is no law at all.” But it is even further from the claim that “law
can have any content whatever.”
ENDNOTES
1
See Dworkin, “Hard Cases”, 88 Harv. L. Rev. 1057 (1975), reprinted in R. Dworkin,
“Taking Rights Seriously” 81 (1977); Dworkin, “The Model of Rules”, 35 U.
Chi. L. Rev. 14 (1987), reprinted in “Essays In Legal Philosophy” 25 (R. Summers ed. 1968) and in R. Dworkin, “Taking Rights Seriously” 14 (1977).
2
H. L. A. HART, “The Concept of Law” 181 (1961).
3
Id. at 169.
4
Id. at 79.
5
Id. at 84.
6
Id. at 85.
7
Id. at 92.
8
Id. at 89.
9
Id. at 92.
10
Id. at 95.
THE RELATIONSHIP OF LAW AND MORALITY 11
Id. at 96.
12
Id.
13
Id. at 151.
14
Id. at 89.
15
Id. at 91.
16
Id. at 100.
17
Id. at 107.
18
Hart also draws the distinction between primary and secondary rules in a quite different way. Primary rules, he says, “impose duties”; secondary ones “confer
powers, public or private.” As he explains, “[r]ules of the first type concern
actions involving physical movement or changes; rules of the second type provide for operations which lead not merely to physical movement or change,
but to the creation or variation of duties or obligations.” Id. at 79. As Jonathan
Cohen points out, this distinction is not the same as that between (1) rules
which are concerned with actions that individuals must or must not do and (2)
rules of recognition, change, and adjudication. See Cohen, Book Review,
“Hart’s Concept of Law,” 71 Mind 396 (1962). Rules of recognition determine
the sources of law and set up criteria for identifying law. They do not confer
power on anyone, private or public, to make law. For a discussion of these
concepts see Sartorius, “The Concept of Law,” 52 Archi Fur Rechts—Und
Sozialphilosophie 161 (1966), reprinted in “More Essays in Legal Philosophy”
113 (R. Summers ed. 1971).
19
H. L. A. Hart, supra note 2, at 164.
20
Id.
21
Id. at 171.
22
Id. at 176.
23
Id.
24
Id. at 177.
25
Id. at 179.
26
Id. at 177.
27
For a complete presentation of Hare’s position see R. Hare, Freedom and Reason
(1963); R. Hare, The Language of Morals (1962).
28
It should be noted that universalizability is not the same thing as what Hart calls
“generality.” The latter requires the extension of rules to more persons or
groups and possibly some implied criticism of criteria of relevance for the differential treatment of persons which some rules embrace. But one can have
rules applied, hence meeting the universalizability requirement, without
extending the benefits (or burdens) of these rules to all persons or classes.
THE RELATIONSHIP OF LAW AND MORALITY 29
H. L. A. Hart, supra note 2, at 179.
30
Id.
31
Id. at 176–77.
32
See Stone, “Should Trees Have Standing?—Toward Legal Rights for Natural
Objects.” 45 S. Cal. L. Rev. 450 (1972); Tribe, “Ways Not to Think About
Plastic Trees: New Foundations for Environmental Law.” 83 Yale L.J. 1315
(1974).
33
H. L. A. Hart, supra note 2, at 84.
34
Id.
35
Id. at 85.
36
Id. at 168.
37
Id. at 176.
38
Id.
39
Id. at 193.
40
Id. at 195.
41
Id. at 194.
42
Id.
43
Id. at 188.
44
Id. at 196.
45
Id. at 158.
46
Id. at 84.
47
Id.
48
Id. at 202.
49
A. L. Goodhart, “English Law and the Moral Law,” 28 (1953), quoted in Hart,
“Legal and Moral Obligation,” in “Essays in Moral Philosophy,” 89 (A.
Melden ed. 1958).
50
H. L. A. Hart, supra note 2 at 200.
51
Olafson, Essence and Concept in Natural Law Theory, in “Law and Philosophy”
234, 236 (S. Hook ed. 1964).
52
Ross, A Critique of the Philosophy of Natural Law, in “The Nature of Law” 68, 71
(M. Golding ed. 1966).
53
Blackstone, Human Rights and Human Dignity, 9 “Philosophy Forum” 3, 19
(1971).
54
For additional discussion see W. Blackstone, Foundations for Political Obligation
(unpublished paper presented at the Conference on Reason, Value, and Political Principle at Pomona College, Claremont, California, March 24–26, 1977).
THE RELATIONSHIP OF LAW AND MORALITY 55
J. Austin, The Province of Jurisprudence Determined and the Uses of the Study of
Jurisprudence 373 (Introduction by H. L. A. Hart 1954).
56
It is, of course, possible to choose not to exist and to deny the value of human life,
in which case that person’s problems as a moral agent are over. There may be
no way to prove the value of life or to demonstrate conclusively the value of
survival itself.
57
He is self-conscious, he can communicate with symbols, he can choose one course
of action rather than another. This is not to deny that there are degrees of these
capacities or that some men, for some reason, may be dispossessed of those
capacities.
58
Baier, The Point of View of Morality, 32 “Australasian J. Philosophy” 104, 126
(1954), reprinted in “Reading in Contemporary Ethical Theory” 322, 337 (K.
Pahel & M. Schiller eds. 1970).
59
Strawson, Social Morality and Individual Ideal, 36 “Philosophy” 1, 11 (1961),
reprinted in “Readings in Contemporary Ethical Theory” 344, 354 (K. Pahel &
M. Schiller eds. 1970).
60
Professor Jeffrey Paul has called my attention to a similar position held by Professor Alan Gewirth. See Gewirth, “The ‘IsOught’ Problem Resolved,” XLVII
Proc. & Addresses of the Am. Philosophical A., 34 (1974). In this essay
Gewirth develops a detailed and ingenious answer to the “IsOught” problem
and a response to emotivism and prescriptivism in ethics.
61
G. Warnock, Contemporary Moral Philosophy 68 (1967).
62
Id. at 60–61.
63
Those boundaries do not exclude concern for nonhuman interests.
64
Obviously the concept of morality elucidated is normative in several senses. It
includes general actionguides and it excludes some values or value systems as
moral ones, that of Nazis, for example. Aside from the fact that the concept of
morality can be descriptive (in the sense noted above) and normative at the
same time, we must heed Professor Alan Gewirth’s warning not to take a “normative approach to science as against a positive approach to ethics.” He argues
that “[i]f science and ethics were approached on the same level, both would
turn out in basic ways to be equally cognitive or equally noncognitive.”
Gewirth, Positive “Ethics” and Normative “Science,” 69 “Philosophical
Rev.” 311, 318 (1960). Professor Gewirth states:
If ethics is to be viewed purely positively—in the sense that wherever there is
a dispute over what should be done, the philosopher is to describe and analyze
the language of the dispute but is to make no discriminations as to where the
normatively ethical lies therein—then he pursues as vacuous a course as if he
were to describe with complete impartiality a debate between a Christian Scientist and a neurologist, calling the debate an example of “scientific contro-
THE RELATIONSHIP OF LAW AND MORALITY versy” and making no attempt to differentiate between good and bad science
or scientific argument. Id. at 317.
65
Dworkin, Taking Rights Seriously. 15 N.Y. Rev. Books, Dec. 17, 1970. at 23,
reprint in E. Rostow, “Is Law Dead?” 168 (1971), and in “Oxford Essays in
Jurisprudence” 202 (2d series, A. Simpson ed. 1973), and in R. Dworkin,
“Taking Rights Seriously” 184 (1977).
66
Hart, Are There Any Natural Rights?, 64 “Philosophical Rev.” 175, 176 (1965).