HARTS CONCEPT OF LAW AND JUSTICE

Ravindra Kumar Singh

Herbert Lionel Adolphus Hart1 (1907-92) is a gigantic champion of modern AngloEnglish legal theor ! Legal positi"ism# of $hich Hart $as the ma%or proponent# has been "ariousl e"ol"ed and significantl refined in man respects and b man follo$ers! &ut at the same time legal positi"ism demonstrates signs of an e'cessi"e pluralism and a theoretical fragmentation of detailed anal ses# so much that nothing $e can sa about legal positi"ism in general can be agreed to b all positi"ists! (nclusi"e positi"ists differ $ith the e'clusi"es# and $ithin each camp the differ $ith each other on the reasons $h the opposite camp is $rong 2! Ho$e"er# Hart)s shado$ ho"ers o"er these disagreements and his theor remains b far the most interesting and internall consistent "ersion of legal positi"ism! *his is $h $e need to go bac+ at Hart)s $ritings and e'plore his insights about la$# legal theor and the concept of %ustice! ,hat follo$s is a critical e'amination of Hart)s methodological premises in an attempt to bring to light the conceptions underneath his concept of la$ and %ustice! His most significant $ritings include Causation in the Law (19-9# $ith A!.! Honor/)# The Concept of Law (1901)# Law, Liberty and Morality (1901)# Of Laws in General (1970)# and Essays on Bentham (1922)! The Concept of Law is one of the most note$orth and original $or+s of legal philosoph $ritten in the t$entieth centur ! (t is considered as the masterpiece of HLA Hart3s mammoth contribution to the stud of %urisprudence and legal philosoph ! (ts elegant language and balanced arguments ha"e spar+led $ide debate and unprecedented gro$th in the 4uantit and 4ualit of the scholarship in the area of philosophical e'amination of the basis for la$! (t has had far reaching effects# not onl on the thought and stud of %urisprudence founded upon English common la$# but also on political and moral theor ! *hus# this thought-pro"o+ing $or+ is an essential
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6acult of La$# 7u%arat 8ational La$ 9ni"ersit # 7u%arat

1

HLA Hart $as formerl :rofessor of ;urisprudence at <'ford 9ni"ersit # :rincipal of &rasenose =ollege# and 6ello$ of 9ni"ersit =ollege!
2

:roponents of the so-called soft or inclusi"e or incorporationist or positi"e positi"ism argue that moralit could# but need not# be a criterion of "alidit for the rule of recognition> there is# namel # no necessar connection bet$een la$ and moralit ! *o the contrar proponents of hard or e'clusi"e or negati"e positi"ism den the possibilit of moralit being a criterion for identif ing "alid la$! *he debate bet$een the t$o currents is o$ed to different interpretations of the separabilit thesis!

reading for la$ ers and philosophers throughout the $orld $ho see+ an understanding of the philosophical basis for la$! The Concept of Law is# therefore# a thorough-going e'amination of the philosophical foundations of la$# and much of the $or+ in the succeeding fort se"en ears since its publication hold Hart3s $or+ implicit in discussions of philosoph of la$!

(n his boo+ The Concept of Law# Hart has anal ?ed the relation bet$een la$# coercion# and moralit # and has also attempted to clarif the 4uestion of $hether all la$s ma be properl conceptuali?ed as coerci"e orders or as moral commands! Hart sa s that there is no rationall necessar correlation bet$een la$ and coercion or bet$een la$ and moralit ! According to him# classif ing all la$s as coerci"e orders or as moral commands is o"ersimplif ing the relation bet$een la$# coercion# and moralit ! He also e'plicates that to conceptuali?e all la$s as coerci"e orders or as moral commands is to impose a decepti"e appearance of uniformit on different +inds of la$s and on different +inds of social functions $hich la$s ma perform! Hence# it $ill be mischaracteri?ation of the purpose# function# content# mode of origin# and range of application of some la$s!

(ndeed# there are la$s $hich forbid indi"iduals to perform "arious +inds of actions and impose an assortment of obligations on indi"iduals! @ometimes# some la$s impose punishment or penalties for in%uring other indi"iduals or for not compl ing $ith "arious +inds of duties or obligations!

Hart disappro"es of the concept of law $hich $as formulated b ;ohn Austin in The Province of urisprudence !etermined (1212)! Hart commences e'plaining his concept of la$ b first ta+ing Austin)s command theor to tas+! According to Austin# all la$s are commands of a legall unlimited so"ereign# and he asserts that# all la$s are coerci"e orders that impose duties or obligations on indi"iduals! Hart# on the other hand# sa s that la$s ma be at "ariance from the commands of a so"ereign in as much as the ma appl to those indi"iduals $ho enact them and not merel to other indi"iduals! @econdl # la$s ma also be different from coerci"e orders in as much as the ma not necessaril impose duties or obligations but ma instead confer po$ers or pri"ileges $ithout

imposing duties or obligations on indi"iduals! *hirdl # the continuance of pree'isting la$s cannot be e'plained on the basis of command> as pointed out# he $as able to demolish completel the Atacit command) m th 1! 6ourthl # Austin)s Ahabit of obedience) fails to elucidate succession to so"ereignt because it fails to ta+e account of impro"ement difference bet$een Ahabit) and Arule)! Habits onl re4uire common beha"iour# $hich is not sufficient for a rule! A rule has an Ainternal aspect)# i!e! people use it as a standard b $hich to %udge and condemn de"iations> habits do not function in this manner! @uccession to so"ereignt occurs b "irtue of the acceptance of a rule entitling the successor to succeed# not on account of a habit of obedience! 6ifthl # Hart also uses Arule) to differentiate bet$een Abeing obliged) and Aha"ing an obligation)! Austin)s command-dut sanction thesis fails to e'plain $h # if a gunman threatens B $ith ACour mone or our life)# B ma be obliged to hand o"er his purse# but has no obligation to do soD! *he reason is that people ha"e an obligation onl b "irtue of a rule!

Eules of obligation are distinguishable from other rules in that the are supported b great social pressure because the are felt to be necessar to maintain societ -! 6or Hart# Ala$) is e4ui"alent to Alegal s stem)! According to him# legal s stem (la$) is a s stem of rules comprising Aprimar rules) and Asecondar rules)! *hese rules are Asocial) in t$o sensesF firstl # in as much as the regulate the conduct of the members of the societ # i!e! the are guides to human conduct and standards of criticism of social conduct> secondl # in as much as the deri"e from human social practices! Apart from these rules# there are other social rules also# for e'ample# rules of moralit ! *he union of these t$o rules is the essence of his concept of la$! Hart describes Aprimar rules of obligation) as rules that impose duties or obligations on indi"iduals# such as the rules of the criminal la$ or the la$ of tort! *he are binding because of practices of acceptance $hich people are re4uired to do or to abstain from certain actions! <n the other hand# secondar rules are those $hich confer po$er# public or pri"ate# such as the la$ that facilitate the ma+ing of contracts# $ills# trusts# marriages# etc or $hich la do$n rules go"erning the composition of po$ers of courts# legislatures and other officials bodies! :rimar rules are concerned $ith actions (that indi"iduals must do or must not do) in"ol"ing ph sical mo"ement or change $hereas the secondar rules pro"ide for operations $hich lead not merel to ph sical mo"ement or change# but to the creation or "ariation of duties or obligations!
1 D

Gias# E,. (199D) urisprudence 8e$ GelhiF Adit a &oo+s :ri"ate Ltd# p1-2! "bid# Hart# HLA (1901) Concept of Law <'fordF =larendon :ress# p2D!

*hus# the secondar rules are ancillar to and are concerned $ith the primar rules themsel"es! *hat is to sa # the secondar rules specif the $a in $hich the primar rules ma be conclusi"el ascertained# introduced# eliminated# "aried# and the fact of their "iolation conclusi"el determined! @econdar rules are chiefl procedural and remedial# and embrace not onl the rules go"erning sanctions but also go far be ond them! 6urthermore# these rules also e'tend to the rules of %udicial procedure# e"idence and the rules go"erning the procedure for ne$ legislation!

@ocieties $ith onl primar rules $ithout an legislature# courts or officials# are in a Apre-legal) state and suffer from three dra$bac+s0! 6irstl # the suffer from the defect of uncertainty# i!e! $hat these rules are and $hat is their scope! (n such a societ # there is no s stematic procedure for resol"ing doubts or 4uestions as to $hat these rules are and $hat their scope is! 6or the effecti"e functioning of a legal s stem# the rules must be sufficientl clear and intelligible to be understood b those indi"iduals to $hom the appl ! *hese rules do not form an s stem# and are merel a set of different standards $ithout an identif ing or common mar+! &ut# this shortcoming can be met b ha"ing Asecondar rules of recognition) $hich stipulate ho$ legal rules are to be identified# to be follo$ed and enforced $ithin the communit ! *he secondar rules of recognition authoritati"el and in the proper $a settle doubts as to $hat these rules are and $hat their scope is! @econdl # Athe primar rules of recognition) suffer from the defect of being static in character! (n such a societ # there is no means of deliberatel adapting the rules to changing circumstances# either b abolishing old rules or b introducing ne$ ones# and no $a to alter the position created b the primar rules! *his shortcoming can be met b ha"ing Asecondar rules) pro"iding po$ers to change the primar rules! *hese Asecondar rules of change) empo$er certain indi"iduals to introduce ne$ rules relating to the conduct of indi"iduals of that communit and to eliminate the old rules# hence specif the mechanism for changing primar rules! (t is in terms such a rule that the schemeHs stem of legislati"e enactment and repeal are to be understood! A@econdar rules of change) ma be either "er simple or "er comple'! *hirdl # the regime of primar rules suffers from the defect of inefficiency! (n the societies $ith onl primar rules# the rules are maintained onl b diffuse social pressure and there is no agenc for resol"ing disputes in relation to the rules# their incidence and their "iolations! &ut# this shortcoming can be met b ha"ing
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"bid, pp 90-91!

Asecondar rules of ad%udication) $hich confer po$ers on certain indi"iduals to ascertain and to ma+e authoritati"e pronouncements $hether rules ha"e been "iolated or breached! &esides# the also define the procedure to be follo$ed# and also characteri?e the legal conception of %udge# court# %urisdiction and %udgment!

Hart)s thesis that a rule of recognition e'ists in e"er legal s stem is the central feature of his positi"istic theor of la$# for it is that feature $hich distinguishes $hich things are la$ and $hich are not and also pro"ides a means for identif ing the la$ in a morall neutral approach! (t also affords an ans$er to the 4uestion of $hen a legal s stem e'ists! *he master rule of recognition is the ultimate source of a legal s stem I li+e the Austin)s so"ereign 7! According to Hart# a simplest "ersion of the rule of recognition in the English s stem is $hate"er the Jueen in the :arliament enacts is la$! ,here there is an accepted constitution# that accepted constitution is the rule of recognition! *he 4uestion of the "alidit of la$ is to be ans$ered $ith reference to the rule of recognition! A*o sa that a gi"en rule is "alid) Hart states# Ais to recogni?e it as passing all the tests pro"ided b the rules of recognition! *he rule of recognition is ultimate in the sense that $hile the "alidit of other rules is determined b their conformit to the criteria specified in the rule of recognition# there can be no 4uestion concerning the "alidit of the rule of recognition itself2! (ts e'istence is a matter of fact and not a 4uestion of compliance $ith an other higher order rule! ;ust as Austinian so"ereign does not stand in relation of habitual obedience to an other persons# so is Hart)s so"ereign rule of recognition! *hat is to sa # Hart)s so"ereign rule of recognition also does not stand in relation of the rule accordance to an other legal rule! ;ust as# the legal "alidit of the Austinian so"ereign is not 4uestioned# so is the legal "alidit of the Hart)s rule of recognition not 4uestioned! &ut# Austinian so"ereign ma die# $hereas Hart)s rule of recognition onl fades a$a (into disuse)! 9nli+e Kelson)s basic grundnorm# Hart)s rule of recognition is not an e'tra-legal %uristic h pothesis! Eather# it is a rule of positi"e la$! (t seems# he follo$s Kelsen in some aspects! Hart describes the introduction of secondar rules as a Astep from the pre-legal to legal $orld)9! Hart sa s that the primar rules of obligation are not in themsel"es ade4uate to establish a s stem of la$s that can be formall recogni?ed# changed# or ad%udicated! *hus# secondar rules are necessar in order to pro"ide an authoritati"e statement of all the primar rules> in order to allo$ legislators to
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Gh ani# @8 (200D) $undamental of urisprudence AllahabadF =entral La$ Agenc # p207! "bid, pp207-2! 9 Hart op cit# p 91!

ma+e changes in the primar rules if the primar rules are found to be defecti"e or inade4uate> in order to enable courts to resol"e disputes o"er the interpretation and application of the primar rules! *he secondar rules of a legal s stem# therefore# include (1) rules of recognition# (2) rules of change# and (1) rules of ad%udication! *he primar rules# therefore# ac4uire the character of a legal s stem through their union $ith the secondar rules!

According to Hart# the primar rules must be combined $ith secondar rules so as to ad"ance from the pre-legal to the legal stage of determination! Hart sa s that the foundations of a legal s stem do not consist# as Austin claims# of habits of obedience to a legall unlimited so"ereign# but# instead# consist of adherence to# or acceptance of# an ultimate rule of recognition b $hich the "alidit of an primar or secondar rule ma be assessed! (f a primar or secondar rule satisfies the criteria $hich are pro"ided b the ultimate rule of recognition# then that rule is legall "alid!

*here are t$o fundamental essentials $hich must be satisfied in order for a legal system to e'istF (i) pri"ate citi?ens must generall obe the primar rules of obligation# i!e! those rules of beha"iour are "alid according to the s stem)s ultimate criteria of "alidit must be generall obe ed and (ii) public officials must accept the secondar rules of recognition# change# and ad%udication as standards of official conduct! (f both of these essentials are not satisfied# then primar rules ma onl be ade4uate to establish a pre-legal form of go"ernment!

Hart sa s that there is no indispensable logical connection bet$een the content of la$ and moralit # and that the e'istence of legal rights and duties ma be de"oid of an moral %ustification! *hus# his interpretation of the relation bet$een la$ and moralit is different from that of Eonald G$or+in# $ho in Law%s Empire suggests that e"er legal action has a moral dimension! G$or+in discards the concept of la$ as acceptance of con"entional patterns of recognition# and describes la$ not merel as a descripti"e concept but as an interpreti"e concept $hich combines %urisprudence and ad%udication!

9nli+e Austin and Kelson $ho re%ected and ridiculed natural la$# Hart)s positi"ism contains $ithin it a minimum content of natural law! He has structured the concept of natural la$ e'plicitl $ith positi"ism $hat he calls Asimple "ersion of natural la$)! .oralit is also couched in Hart)s concept of la$! *his has made Hart a positi"ist as $ell as naturalist! *here are some con%unctions in the Hart)s s stem of la$ $here la$ and moralit o"erlap and coe'ist# and are e"en complimentar and supplementar in nature! 6urther# his refutation of la$ as a gunman situation further implies the inseparable character of the relationship bet$een la$ and moralit ! .oral and legal rules ma o"erlap# because moral and legal obligation ma be analogous in some situations! Ho$e"er# moral and legal obligation ma also be different in some situations! .oral and legal rules ma be appropriate and "alid in similar aspects of conduct# such as the obligation to be honest and truthful or the obligation to respect the rights of other indi"iduals! Ho$e"er# moral rules cannot al$a s be changed in the $a in $hich the legal rules can be changed! Hart does not sa that there is necessar conceptual or definitional connection bet$een the legal and the moral# but he does# ho$e"er# ac+no$ledge that the ultimate basis for preferring the positi"e thesis# $hich insists on a clear differentiation of la$ and morals# is itself a moral one!

&ut# Hart distinguishes la$ from moralit # custom# eti4uette# and other +inds of social rules! According to Hart# four features of moralit are necessar for a clear picture of his concept of la$! *he areL(i) importance# (ii) immunit from deliberate change# (iii) "oluntar character of moral offence and (i") forms of moral pressure! An indispensable feature of a moral rule is that it is regarded as something of great importance! Hence# indi"iduals cannot omit it! (t is an attribute of a legal s stem that ne$ legal rules can be introduced and the old ones can be changed or replaced b deliberate enactment! <n the contrar # moral rules cannot be brought into being or eliminated in this manner! .oral responsibilit is a matter of internal beha"iour $hile la$ is generall concerned $ith e'ternal beha"iour! (f a person after committing an offence establishes that he did that act in"oluntaril # then# he is e'cused from the moral responsibilit # and blaming him# in such a situation# $ould itself be considered morall $rong! ,hereas# there are certain e'ceptions in so far as fi'ing legal responsibilit of a la$brea+er is concerned! Lastl # in case of la$# the t pical form of legal pressure ma consist in ph sical punishment or unpleasant conse4uences! ,hereas# the characteristic feature of moralit # on the other hand# is the distinguishing form of moral

pressure (appeals to respect the rules and the appeals to conscience) $hich is $ielded in its support!

Hart)s internal aspect of law constitutes a radical brea+ $ith the thought of his positi"ist predecessors Austin and &entham# and also sharpl differentiates his philosoph from his near-contemporar Kelson! 6or Kelson# there is a separate categor of human thought (the Aought)) $hich is drasticall distinct from Ais) and# therefore# from human ps cholog ! According to Hart# normati"it hinges on Ahuman attitudes to human action)! Hart)s "ie$ is that la$ depends not onl on the e'ternal social pressures $hich are brought to bear on human beings# but also on the inner point of "ie$ that such beings ta+e to$ards rules concei"ed as imposing obligations! (n pre-legal societies# it is obligator for its members not onl to obe those rules but also consciousl to "ie$ them as common standards of beha"iour# "iolation of $hich are to be critici?ed! @uch criticisms being considered as legitimate both b the offender and other members! (n other $ords# in societies $ith onl primar rules# an internal point of "ie$ on the part of its members is necessar for the preser"ation of the group harmon # cohesion and solidarit ! ,hereas# in societies $ith the both the rules (legal s stems)# ho$e"er# it is not necessar for the members to possess an internal point of "ie$> it is enough if the officials of the legal s stem ha"e this "ie$! 8onetheless# it is desirable that citi?ens# in such a societ # also e'perience it! Hart)s e'planation of social rules is# therefore# dependent on a hermeneutic approach $hich is concerned $ith understanding the importance of human actions to those $ho do them and $ith ho$ the interpret the actions of others! Hart brings in the internal aspect of la$ to distinguish Arules) from Ahabits)! (n contrast $ith Austin $ho stresses on habit# Hart denies the possibilit of e'plaining rules solel b reference to e'ternal patterns of beha"iour!

Hart describes (nternational La$ as problematic# for it ma not ha"e all of the elements of a full -de"eloped legal s stem! (n some cases# (nternational La$ ma be short of secondar rules of recognition# change# and ad%udication! @econdl # (nternational legislatures ma not al$a s ha"e the po$er to enforce sanctions against nations $ho "iolate (nternational la$! *hirdl # (nternational courts ma not necessaril ha"e %urisdiction o"er each and e"er legal dispute bet$een nations! 6ourthl # (nternational La$ ma be disrespected b some nations $ho ma not face an significant pressure to compl $ith!

(n an legal s stem# there ma be cases in $hich e'isting la$s are "ague or indeterminate and that %udicial discretion ma be necessar in order to interpret and spell out e'isting la$s in such cases! Hart declares that b interpreting and e'pounding "ague or indeterminate la$s# %udges ma actuall ma+e ne$ la$s! Hart)s concept of la$ as a combination of primar and secondar rules # his e'clusion of morals from la$ as it is# and his model of positi"ism centered around the rule of recognition ha"e been critici?ed b man %urists! (n Hart)s concept# the distinction bet$een a legal and a pre-legal condition is not at all clear! Hart sa s that in pre-legal societies A$e must $ait and see $hether a rule gets accepted as a rule or not) -- this further raises a 4uestion - ,hen do $e +no$ the categor of a gi"en societ # and $hen do $e +no$ that there is a rule of recognitionM *his rule is not a h pothesis# but a rule of positi"e la$ and# conse4uentl # its o$n "alidit cannot relate to itself! *he rule of recognition is clustered under po$ers as a secondar rule# but it loo+s more li+e the acceptance of a special +ind of rule than a po$er! .oreo"er# there appear to be some rules of recognition $hich are not po$ers# such as those $hich indicate the criteria to be applied # for e'ample constituti"e rules of procedure! Ea? has suggested that the rule of recognition is not a po$er# a dut addressed to officials10! Hart articulates that acceptance of a rule of recognition rests on social facts# but he does not concern himself $ith the reasons $h # or the circumstances in $hich it comes to be accepted! @ocial and moral considerations ma $ell set limits on a rule of recognition at the time of acceptance so that it ma ha"e builtin limitations that pro"ide safeguards against certain abuses of po$er11! :rof Eonald G$or+in#a reno$ned la$ er and political philosopher# $as one of the chief Hart3s critics $ho in the 1970s and 20s mounted a series of challenges to Hart3s =oncept of La$! (t appears# as if# Hart let these challenges go unans$ered until# after his death in 1992# his ans$er to G$or+in3s criticism $as disco"ered among his papers! =ritici?ing Hart)s "ersion of la$ as a set of rules# G$or+in poses a 4uestion I (s la$ merel a s stem of rules on $hich Hart has based his model of positi"ismM G$or+in argues that in a legal s stem there are other things
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Ea? The Concept of a Le&al 'ystem# p99! Gias op cit, p1--!

besides rules# for he sa s that a legal s stem cannot be concei"ed merel as a code of rules! *hus# G$or+in ma+es a differentiation bet$een a rule and a principle# and articulates that a legal s stem has to be concei"ed as an institution based on certain standards# principles and policies! According to G$or+in# the conception of la$ as a s stem of rules fails to ta+e account of $hat he calls Aprinciple)! A 4uestion that naturall arises isF ,hat is the difference bet$een a rule and a principleM Eules are thought as detailed $hile principles are general! :rinciples are broad reasons that lie at the foundation of a rule of la$> the are $ide formulations of reason or generali?ations $hich underlie and comprehend particular rules! *he principles are $ider than rules and the rules are categorical precepts attaching a definite# distinct and detailed legal effect> the are more specific and detailed than principles! G$or+in sa s that the distinction bet$een a principle and a rule is a logical one! &oth points to particular direction about legal obligation in particular circumstances# ho$e"er# the differ in the character of the discretion the gi"e! Eules are applicable in all-or-no fashion# principles state Aa reason that argues in one direction but do not necessitate a particular decision! :rinciples are a matter of more or less $hile rules are a matter of es or no! All that is meant# $hen it is said that a particular principle is a principle of la$# is that the principle is one $hich officials must ta+e into account# if it is rele"ant# as a consideration inclining in one direction or another! A principle has a dimension of $eight or importance $hich a rule does not ha"e! Eules# b contrast# are functionall significant! :rinciples ma conflict! (f rules conflict# a further rule $ill be needed to regulate the clash! *he force of a principle ma become attenuated o"er a period of time> its strength ma become eroded! *his is not so $ith rules! Hart)s "ie$ that the %udges ha"e the discretion to create ne$ legal rules through e'tra legal standards $hen the e'isting la$ is not ascertainable and pro"ides no guidance to the %udge to appl the la$ to certain situation# has been critici?ed b G$or+in! Ee%ecting this "ie$# G$or+in sa s that a %udge has a dut to appeal to certain principles and not to others on the appropriate occasions and hence in"ol"es discretion in a $ea+ sense! Hart)s concept of la$ as a combination of primar and secondar rules can be critici?ed on the ground of fluid and imprecise distinction bet$een these rules# for the same rule ma create a po$er plus a dut to e'ercise it or a po$er plus a dut not to e'ercise it! :rofessor Lon L 6uller instances a situation $here the same rule ma confer po$er and dut # or po$er or dut according to the

circumstances12! A trust instrument ma gi"e the beneficiar the po$er to transfer the estate to himself on some condition! *he trustee is# certainl # entitled to reimbursement out of the estate and has the po$er to reimburse himself# correlati"e to the liabilit in the beneficiar to ha"e the estate reduced in this $a ! (f# ho$e"er# the beneficiar e'ercises his po$er on the occurrence of the condition but before the trustee has reimbursed himself# the beneficiar comes under a dut to reimburse him 11! 6uller poses a 4uestionF ,hich is the rule creating the po$er and $hich is the rule creating the dut M (n fact# the distinction lies not in the rule# but in the circumstances! =ertain rules are neither po$er conferring nor dut imposing> for e'ample# a rule that abolishes one)s dut on the occurrence of some e"ent# sa discharge of a contract b frustration or no"ation! 6urther# there ma be dut creating secondar rules# for e'ample# a rule re4uiring a 7o"ernment to change a la$ on a referendum# or the dut of a %udge to hear a case# etc! Hart has spo+en of Athe acceptable proposition that some shared moralit is essential to the e'istence of an societ )1D! AE'istence of an societ ) must connote Acontinued e'istence)# and he does admit that a Aminimum moralit ) is an essential part of e"er communit ! *his minimum moralit is rooted in fi"e factsF human "ulnerabilit # appro'imate e4ualit # limited altruism# limited resources and limited understanding and strength of $ill1-! As a positi"ist# he +eeps out moralit from his concept of la$! His concept# nonetheless# is of a Alegal s stem) $hich is a continued phenomenon# and he does concede that some moralit is essential to the continued e'istence of a societ ! Gias poses a 4uestionF (s a distinction being dra$n bet$een the continued e'istence of societ # for $hich some moralit at least is essential# and the continued e'istence of a legal s stemM *his cannot be# for $hile a communit (a moral s stem) could e'ist $ithout a legal s stem# but a legal s stem presupposes a communit ! *he relation bet$een morals and a legal s stem is that the latter onl de"elops $ithin and around the moralit of a communit ! (t is suggested that underl ing all these is a confusion of time-frames! *here is no disagreement in sa ing that an immoral precept is Ala$) here and no$ and also that its immoral 4ualit is li+el to pro"e fatal to its continuit ! ,hen Hart thin+s in a continuum# as he does $ith societ # he has to bring in moralit > but in order to defend positi"ism# he shifts ground and ta+es refuge in the present time-frame# for onl in this $a he can %ustif the e'clusion
12

6uller# Lon L (1909) *he Morality of Law# @econd Ed# (ndian Eeprint 200D# 8e$ GelhiF 9ni"ersal La$ :ublishing =o :"t Ltd# pp 11D-110! 11 Gias op cit# p 1-D! 1D Hart # HLA (1901) Law Liberty and Morally @tanfordF @tanford 9ni"ersit :ress# p -1! 1Hart# HLA Concept of Law# pp 190-9-!

of moralit for the purpose of identif ing la$s here and no$10! *hus# there appears to be a greater separation bet$een his concept of La$ and his positi"ism than e"er he alleges bet$een la$ and moralit ! (n the second re"ised edition# Hart presents an Epilogue in $hich he ans$ers G$or+in and some of his other most influential critics including 6uller and 6innis! & this epilogue# $hich $as disco"ered onl after his death# he defends his $or+ against his critics and re-e'amines the foundations of his philosoph ! ,ith the same clarit and candor# for $hich the first edition is famous# the Epilogue offers a sharper interpretation of Hart3s o$n "ie$s# rebuffs the arguments of critics li+e G$or+in# and strongl asserts that the ha"e based their criticisms on a fault understanding of Hart3s $or+! Hart demonstrates that G$or+in3s "ie$s are in fact noticeabl analogous to his o$n! (n a final anal sis# Hart)s repl lea"es G$or+in3s criticisms considerabl $ea+ened and his positions largel in 4uestion! *he notion of justice is more ancient than that of la$! *he concept of %ustice is based upon and is e4uated $ith moral rightness (ethics)# rationality# law# natural law# fairness# righteousness# e4ualit # goodness# and equity! 8onetheless# "ie$s of $hat constitutes %ustice "ar from societ to societ # person to person# from time to time and from place to place! As a notion it has been sub%ect to "arious philosophical# legal# and theological reflections and debate throughout the history! *here are "arious forms and "ariations of the concept of %usticeF Utilitarianism is a form $here punishment is for$ard-loo+ing> Retributive justice administers proportionate response to crime pro"en b la$ful e"idence# so that punishment is %ustl imposed and considered as morall -correct and full deser"ed> *he la$ of retaliation (lex talionis) is a militar theor of retributi"e %ustice $hich states that reciprocit should be e4ual to the $rong suffered -- Nlife for life# $ound for $ound# stripe for stripeN> Distributive justice is directed at the appropriate allocation of things - $ealth# po$er# re$ard# respect - bet$een different people# i!e! e4ual distribution among the e4uals> Corrective (ustice see+s to reinstate e4ualit $hen this is disturbed! @ome philosophers# such as the classical 7ree+s# concei"e of %ustice as a virtueLa propert of people# and onl deri"ati"el of their actions and the institutions the create! <thers accentuate actions or
10

Gias op cit# p1-0!

institutions# and onl deri"ati"el the people $ho bring them about! *he source of %ustice has di"ersel been attributed to harmony# divine command# natural law# or human creation!

*he 4uest for %ustice has been as challenging as for the la$! *he concept of %ustice is of imponderable significance# and has been the $atch $ord of all ma%or social and political reform mo"ements since time immemorial! ;ustice is a conception that emerges in our mind in connection $ith la$! Ancient (ndians# 7ree+s and Eomans) "ie$ of %ustice $as "er broad! (t includes the $hole of righteousness# i!e! the moralit ! *he postulated %ustice as an ideal standard deri"ed from 7od or based on !harma# truth# e4ualit # righteousness and similar high moral "alues of e"erlasting authorit and "alidit ! (n "er general terms# %ustice signifies a cluster of ideals and principles for common good and $elfare $ithout the least hope or opportunit of in%ustice# ine4ualit or discrimination! (t is the notion of %ustice $hich directs our attention to the fairness and reasonableness of the rules# principles# and standards that are the ingredients of the normati"e edifice! Ho$e"er# contemporar philosophers thin+ of %ustice as an important part of moralit ! Hart# in his boo+ The Concept of Law# prefaces his discussion of %ustice and moralit $ith @t Augustine)s rhetorical 4uestionF A,hat are states but robberbands enlargedM)17 (f @tates are something more# ho$e"er# than robber-bands enlarged# and if la$ is to be anal ?ed other$ise than in terms of formal "alidit alone# $hat further features are necessar and ho$ are the to be described and measuredM12 Hart indicates the relati"it of the concept of %ustice# and the conse4uent difficult of isolating material factors in legal "alidit # $hen he sa s19F AA tall child ma be (of) the same height as a short height man# a $arm $inter (ma be of) the same temperature as a cold summer# and a fa+e diamond ma be a genuine anti4ue! &ut %ustice is far more complicated than these notions because the shifting standard of rele"ant resemblance bet$een different cases incorporated in it not onl "aries $ith a t pe of sub%ect to $hich it is applied# but ma often be open to challenge e"en in relation to a single t pe of sub%ect!)

17 12

Hart op cit# p 1-2! 6inch# ;ohn G (197D) "ntroduction to Le&al Theory# (@econd Ed - 6irst (ndian Eeprint) 8e$ GelhiF 9ni"ersal La$ :ublishing =o :"t Ltd# pp 0D-0-! 19 Hart op cit# p 1-0!

Hart# b defining la$ as the combination of rules# ma+es moralit or %ustice as a necessar component of la$ through the rule of recognition! He seems to be a$are that sometimes in an legal s stem# there ma be cases in $hich e'isting la$s are "ague or indeterminate# and hence# those (cases) are not full co"ered b an la$! *his is $hat he describes as Athe open te'ture of la$)# the Apenumbral areas) in e"er rule of la$ $here it is not clear $hat the rule re4uires or $hether it applied to all borderline cases! He asserts that in such cases %udicial discretion ma be necessar in order to interpret and spell out e'isting la$s or to loo+ outside the la$ for standards to guide in supplementing old legal rules or creating ne$ ones according to the communit )s ideal of moralit or %ustice! Hart anal ?es the concept of %ustice into a general principle or definition $ith changeable criteria! He considers that administrative justice# one aspect of %ustice# has an essential connection $ith la$! According to Hart# the general concept of %ustice is connected $ith fairness! E"aluations using %ustice and in%ustice could use fair and unfair instead 20! *he concept of %ustice applies to t$o primar t pes of circumstancesLone is the distribution of benefits or burden upon indi"iduals# and second is $here $rongdoers compensate to the "ictims for the in%uries caused! 6or e'ample# sales ta' or OA* might be condemned as un%ust or unfair because the impose a proportionall hea"ier burden upon those $ho are less capable to pa ! Apart from these t$o situations# there are other areas also for the application of %ustice! *rials# punishments# etc can also be spo+en of as %ust or un%ust and fair or unfair! (n essence# Hart adopts Aristotle)s anal sis of %ustice b e4ualit and embellishes it $ith the distinction bet$een a definition and criteria of application21! *he common notion of %ustice is that indi"iduals are entitled in respect of each other to a certain relati"e position of e4ualit and ine4ualit ! @o# the general precept of %ustice is that A*reat li+e cases ali+e and different cases differentl )! *his principle pro"ides a definition of %ustice! As recogni?ed b Aristotle# this precept has to be supplemented b an account of rele"ant criteria for deciding $hether the cases are similar or different! *his problem of significance is a core issue in contemporar discussions of %ustice! 9nfortunatel # Hart does not pro"ide a general theor or set of principle for determining $hich characteristics are rele"ant22!

20

"bid pp 1-D-1-&a les G .ichael (1992 ) )art%s Le&al Philosophy* +n E,amination, London# Gordrecht# &ostonF Klu$er Academic :ublishers# p 111! 22 "bid#
21

Hart)s use of distinction bet$een criteria and definitions to anal ?e A%ustice) has all general problems of this distinction21! Especiall # most of the moral significance of %ustice is left out of the definition and placed in the criteria! ,ith no specification of the criteria of rele"ance# the concept of %ustice is morall neutral! *he concept of %ustice is a formal and not a substanti"e one! @uch a concept has the good 4ualit of accounting for# or at least being compatible $ith "arious normati"e outloo+s! (t is also sub%ect to a corresponding defect of offering little guidance for e"aluating la$s! (n appl ing a la$ or a rule# Hart asserts# the rele"ant characteristics for classif ing cases as ali+e or different do not cause much intricac ! Eules specif the %ust-ma+ing characteristics! ,here a la$ declares that a person $ho intentionall +ills another $ill be guilt of murder# then# one generall +no$s $hich characteristics are rele"ant and $hich are irrele"ant! ,hile deciding a case# the intention of a person is rele"ant! *hat is to sa # $hile deciding a case under a rule# if the person ignores characteristics specified in it# he is said to ha"e acted un%ustl ! (n Hart)s anal sis# administrative (ustice (%ustice in appl ing rules) has a necessar connection $ith la$! (t results in deciding cases in accordance $ith rules> and according to Hart# la$s are rules! A@o# there is# in the "er notion of la$ consisting of general rules# something $hich pre"ents us from treating it as if morall it is utterl neutral# $ithout an necessar contact $ith moral principles!)2D *his relation# nonetheless# concerns onl the administration of la$s! *he theor of treating li+e cases ali+e is not "er perspicuous for anal ?ing administrati"e %ustice! Hart argues that it ma co"er the prere4uisites of impartialit because if decisions are guided solel b the criteria in rules there ma not be room for pre%udice and bias! Ho$e"er# this point is not full con"incing because pre%udice and bias often operate in the perception and classif ing of facts rather than in the application of rules to ascertained facts! Hart# perceptibl # is chiefl concerned $ith follo$ing rules! Juite a fe$ ob%ections can be made to the theor of treating li+e cases ali+e as accounting for the %ustice of follo$ing rules! 6irstl # the precept does not al$a s be rele"ant! (n case of the first application of a rule# there is no prior case to $hich the current one (the case in hand) can be treated ali+e! A*reating cases
21 2D

"bid# pp 11-1-! Hart# HLA (1921) Essays in urisprudence and Philosophy p 21!

ali+e) is a relati"e notion and# therefore# re4uires at least t$o! @econdl # treating the cases ali+e possibl creates a conflict $ith follo$ing rules! 6or e'ample# if the first case is decided incorrectl b appl ing a rule# then# in a second similar case# %udges or other rule appliers are confronted $ith either correctl follo$ing the rule or treating the case similar to the first! Hart might counter this ob%ection b sa ing that if rules are properl follo$ed# then# li+e cases could be treated ali+e! *hirdl # treating li+e cases ali+e does not# all the time# pro"ide e"en a frima facie reason of %ustice! 6or e'ample# a %udge enforces a particular rule against a "ulnerable group# sa # a group of children! And# $hat if# $hen a similar case comes in a subse4uent matter# another %udge does not enforce that particular rule against another set of children! @o the mere fact that cases are not treated ali+e# does not necessaril pro"ide a reason for thin+ing the decision un%ust! (n fa"our of Hart# &a les has countered the criticism in an impressi"e fashion2-F Two distinctions are necessary# $irst, one must distin&uish between acts havin& an un(ust aspect and their bein& un(ust everythin& considered# 'econd, one must distin&uish between comparative and non*comparative (ustice# The precept of treatin& li-e cases ali-e is one of comparative (ustice# 'ometimes, conduct is considered un(ust simply on the basis of the treatment accorded an individual# + law prohibitin& blac-s livin& in one area is non*comparatively un(ust# + form of comparative in(ustice is involved in the law bein& enforced a&ainst some blac-s but not others# Blac-s a&ainst whom the law is enforced mi&ht reasonably contend that if their cases are li-e the others, the law should not be enforced a&ainst them either# .onetheless, they mi&ht well a&ree that the non*comparative in(ustice &reatly outwei&hs any comparative in(ustice# Thus, everythin& considered, it is (ust not to enforce the law a&ainst a specific blaceven thou&h there is an aspect of comparative in(ustice# (n modern societies there is# Hart li+es to thin+# general agreement that religious and colour differences are irrele"ant characteristics in formulating ci"il and criminal la$s20! 6urther# sometimes the rele"ant characteristics can be depri"ed from the purpose of a la$27! 6urther# $ithin and bet$een the societies# there e'ist great differences in beliefs about $hat characteristics are rele"ant! ,hate"er rele"ances are decided on# the precept of treating similar group similarl remains the +e element in distributive (ustice# Distributive justice is chiefl concerned $ith the allocation of rights# po$ers# duties# and burdens to the members of a
220

&a les op cit# p 111! Hart Concept of Law, p1-7! 27 "bid, p1-9!

societ or group! *he range of problems falling $ithin this categor of %ustice is e'tremel e'tensi"e! Hart sought to limit the conception of distributi"e %ustice to cases of arbitrar discrimination! A*he general principle latent in the di"erse application of the idea of %ustice) he said# Ais that indi"iduals are entitled in respect to each other to a relati"e position of e4ualit or ine4ualit !) 22 Loo+ing from this angle# a %ust la$ $ould be one $hich treats li+e situations ali+e# and an un%ust la$ $ould be one that allocates rights and duties une4uall $ithout a plausible ground! *his "ie$ of %ustice is too narro$l confined! (t is right that the une4ual treatment of persons or groups $ho should be treated in the same manner poses noticeable and gra"e issues of %ustice! Ho$e"er# distributi"e %ustice does not e'haust its connotation and importance in the postulate of non-discrimination! (n a democratic countr # distributi"e %ustice is# b and large# dispensed b a legislati"e bod elected b the people! (n non-democratic countries# this authorit ma be "ested in an oligarchic council or in an autocratic ruler! (n some societies# the %udiciar parta+es in the prerogati"e to dispense distributi"e %ustice to the e'tent that %udges are granted discretion to la do$n general rules29! <ne of the most capti"ating modern attempts to defend principles of %ustice is found in ;ohn Ea$ls)s + Theory of ustice/0# as no$ reformulated in Political Liberalism/1! Here# the author $ishes to present Ea$ls conception of %ustice! His conception of %ustice demandsF 1! *he ma'imi?ation of libert # sub%ect onl to such constraints as are essential for the protection of libert itself> 2! E4ualit for all# both in the basic liberties of social life and also in distribution of all other forms of social goods# sub%ect onl to the e'ception that ine4ualities ma be permitted if the produce the greatest possible benefit for those least $ell off in a gi"en scheme of ine4ualit (the difference principle)> 1! A6air and e4ual opportunit ) and the elimination of all ine4ualities of opportunit based on birth or $ealth! =ritici?ing Ea$ls theor of distributi"e %ustice# Hart sa s that the Aprinciple of common interests) brea+s do$n in some important cases! He maintains that
22 29

"bid pp 1-1-1-D! &odenheimer# Edgar (197D) urisprudence* The Philosophy and the Method of Law# 8e$ GelhiF 9ni"ersal La$ :ublishing =o :"t Ltd# p 210! 10 6irst published in 1972! 11 :ublished in 1991!

Ea$ls underestimates the difficult of balancing conflicting liberties! He also upholds that some criteria of the "alue of different liberties must be in"o+ed in the resolution of clash bet$een them! Corrective justice comes into pla $hen a norm of distributi"e %ustice has been breached or infringed b a member of a communit ! (n such a situation# it becomes necessar to ma+e amends for a $rong or depri"e a part of an un%ustified gain! *his t pe of %ustice is generall administered b the court or other organ in"ested $ith %udicial or 4uasi-%udicial po$er! (ts ma%or areas of application are contracts# torts# and crimes! According to Aristotle# the term un%ust is held to appl both to the person $ho brea+s the la$ and the person $ho ta+es more than his due# the unfair man! *herefore# a person $ho abides b the la$ and the person $ho is fair are %ust men! *he e'pressions A%ustice) and Ain%ustice) are not confined to the legislati"e imposition# %udicial interpretation# and contractual stipulation of norms! *he are e'tended to the realm of indi"idual conduct and used to characteri?e unla$ful and unfair acts of one person directed against a fello$ man! 6or instance# a person $ho callousl disappoints an e'pectation $hich he# b $ords or conduct# has raised in another person! *he same appellation ma be applied to a person $ho brutall beats a child ma be declared un%ust according to this broad understanding of the $ord! Hart re%ects this e'pansion of the $ord Aun%ust)# but it $ould not seem to offend against natural linguistic usage12! (n the histor of %urisprudential thought# the notion of %ustice has often been lin+ed $ith the concept of natural la$! :redominantl # the relation bet$een natural la$ and %ustice has been the source of much disagreement among philosophers and %urists! *o Aristotle# a rule of %ustice $as Anatural) if it had the same "alidit the $orld o"er! Ho$e"er# he did not ta+e the stance that all the rules of %ustice $ere of this character! (n particular# those of distributi"e %ustice depended# in his opinion# on shifting criteria of human e4ualit and ine4ualit ! 6or e'ample# he points out that the standards of e4ualit are not the same in democratic# oligarchic# and aristocratic societies! @t *homas A4uinas also follo$ed an analogous approach! He "ie$ed natural la$ as a set of realistic barriers $hich the uni"ersal and ineradicable traits of human beings# including
12

Hart Concept of Law, p 1-1!

their rational impulse of sociabilit # impose upon the po$ers of la$ma+ers 11! Ho$e"er# his conception of %ustice $as of much broader scope! @tarting from different philosophical perspecti"es# Hart arri"ed at similar conclusions! He recogni?es natural la$ as a bundle of uni"ersall recogni?ed principles $hich ha"e a basis in certain elementar truths concerning human beings 1D! AEeflections on some "er ob"ious generali?ationsLindeed truismsLconcerning human nature and the $orld in $hich $e li"e# sho$ that as long as these hold good# there are certain rules of conduct $hich an social organi?ation must contain if it is to be "iable)1-! (n contrast# his conception of %ustice $ent farther b including criteria of normati"e rightness $hich are responsi"e to "ar ing conditions in the de"elopment of legal s stems! Ad"ocating for a sharp distinction to be maintained bet$een la$ and moralit # Hart concludes that the la$ must be held to embrace all rules $hich are "alid b "irtue of the constitutional or statutor tests established b the positi"e legal s stem# regardless of the intrinsic %ustice of these rules! He maintains that nothing can be gained b adopting a narro$er concept of la$ e'cluding offensi"e rules# e"en though the degree of their immoralit ma ha"e reached e'treme proportions10! Ho$e"er# he does not declare that legal rules $hich are totall repugnant to %ustice or the moral sense of men una"oidabl and under all circumstances be obser"ed! He suggests that# although such rules are la$# there ma be a moral right or e"en dut to disobe them 17! *here ma be situation in $hich this "ie$ $ill lead to undesirable conse4uences! According to Hart# although a pri"ate indi"idual ma be %ustified on the ground of higher %ustice in refusing compliance $ith an abhorrent enactment# the court must punish this man for disobedience of the la$! *hus# it $ould seem that# under Hart)s theor # a man $ho has incurred the death penalt for refusing to e'ecute a formall "alid command of an insane despot to +ill large number of innocent people must be punished b a court e"en after the despot has been deposed# unless the ini4uitous la$ has been repealed $ith retroacti"e force or legislati"e amnest has been granted12!

11 1D

&odenheimer op cit, p 21D! "bid, p 21-! 1Hart Concept of Law, p122! 10 "bid, pp 100# 20-! 17 "bid, pp 201-207! 12 &odenheimer op cit, p202!

According to Hart# in compensatory justice the relation to the precept is less direct! *$o different t pes of situations can engross in%ustice of this +ind! 6irstl # classes of people might be gi"en pri"ileges and immunities $hich are denied to others! 6or instance# nobles ma be gi"en the right to sue for slander but commoners not! *his gi"es rise to a problem of distributi"e %ustice because one class is gi"en benefits denied to another on the basis of $hat ma be thought to be irrele"ant differences! @econdl # compensation might not be permissible for certain t pes of harm and in%uries! Hart claims that the "ice here is Athe refusal to all ali+e# of compensation for in%uries $hich it $as morall $rong to inflict upon others)19! Although# prima-facie# it appears that these latter situations do not come under the general precept of %ustice! &ut# Hart upholds that an indirect relation does obtain! &oth sorts of cases are ali+e in as much as someone has been morall $ronged# but the are not treated ali+e! As regards $rongful in%uries# moralit places all indi"iduals on an e4ual footing! 8o one should ha"e to endure in%uries! Hence# if a person $rongfull in%ures another# Ab pro"iding for the restoration# after disturbance of the moral status 4uo in $hich "ictim and $rong doer are on a footing of e4ualit and so ali+e) it is implicitl recogni?ed that li+e cases should be treated ali+eD0! Hart)s principle of treating li+e cases ali+e is not sufficient to account for compensator %ustice! 6irstl # if a particular $rong doer is made to compensate his "ictim# the circumstance can be hardl described as one treating li+e cases ali+e! 8one of them can reasonabl sa that the are treated ali+e $hen one is made to compensate! Eesorting to a moral balance is one thing and treating li+e cases ali+e is another> the are not the same! .oreo"er# Hart re4uires one to sa that a person $ho $rongfull causes in%ur to another has profited Ae"en it is onl b indulging his $ish to in%ure him or not sacrifice his ease to the dut of ta+ing ade4uate precautionsD1! *hus a person at fault in an auto accident has profited at another)s e'pense e"en though he might ha"e the loss of his automobile as $ell as limb $hile the other part onl suffered a sprained an+leD2!

19 D0

Hart# HLA Concept of Law# p100! "bid# p101! D1 Hart# loc cit! D2 &a les op cit# p 11D!

@econdl # Hart re4uires slander# negligent automobile accidents# and in%uries b unrestricted dangerous animals should be treated on parit ! *he are ali+e in as much as in each case one person has $rongfull harmed another! *he la$ is un%ust unless it treats the cases e4uall ! *he concept of $rongful is practicall de"oid of content $hen applied to strict liabilit > it can mean little more than caused in%ur for $hich the la$ holds one liableD1! Hart seems to ha"e restricted himself to compensator %ustice as traditionall applied to La$ of *orts $here the 4uestion is normall F $hich of the t$o parties should bear the lossM (n such a case# reasonabl the part at fault should do so# assuming one can e'tend Afault) to strict liabilit ! Ho$e"er# at this %uncture# the 4uestion is one of comparati"e %ustice I $hich of the t$o parties should %ustl bear the loss! <nce this fault principle is accepted# it can be applied to indi"iduals $ithout ma+ing an comparison $ith other persons or cases! =onse4uentl # if a person suffers some loss due to the negligence on the part of a professional# the professional should pa ! *his is fundamentall a non-comparati"e claim! (n these t pe of cases# onl the conduct of the professional needs to be e'amined# not that of the plaintiff to determine the liabilit # and it is also not necessar to consider $hether or not other professionals ha"e been made to pa ! @ince it is a noncomparati"e claim# it does not depend upon comparati"e principle of treating li+e cases ali+e! (n fact# it ma go against that principle! 6or e'ample# if the professional is a doctor or a la$ er# and# assume that# doctors or la$ ers ha"e not pre"iousl been held liable for the conduct (negligence# etc) in 4uestion! <ne can also sta a$a from comparati"e considerations in de"eloping a principle! <ne might hold a principle that persons should be compensated for personal in%uries that occurred due to their no fault! At most# the principle is based on comparison of faultless and non-faultless "ictims! 6urther# comparati"e aspects can arise if# for e'ample# a distinction is made bet$een in%uries caused b accidents and those o$ing to illness and diseases! Ho$ such a s stem of compensation should be paid for# $ill raise the issues of distributive (ustice# but it does not in"ol"e or at least necessaril in"ol"e# comparisons bet$een $rongdoers and their "ictimsDD! Hart)s precept of %ustice of treating li+e cases ali+e is also# thus# insufficient though it is rele"ant to punishment! (n %ustif ing punishment# Hart does not use
D1 DD

"bid# p 11-! "bid#

this principle to a great e'tent! (n %ustif ing punishment# it seems# he relies on utilitarian-deterrence reasons! He anal ses the issue of $ho should be punished as a problem in distributi"e %ustice! (n determining amount of punishment# he holds that similar defendants should be punished similarl for similar crimes and that different offences should be punished differentl D-! Ho$e"er# before appl ing this principle# one must determine as to $hat punishment is appropriate for some specific crime! Here also the precept of treating li+e cases ali+e does not help a lot# and Hart# therefore# mainl uses utilitarian-deterrence considerations to do so! His description of administrati"e %ustice applies to punishing particular indi"iduals! (ndi"iduals are to be punished according to the rele"ant rules of la$! As Hart)s formal concept does not sa $hat characteristics are rele"ant# it cannot be used to determine $hat la$s there should be D0! *hus# Hart)s precept does not pro"ide a complete account of %ustice in punishment! Although the relation is not al$a s direct# Hart considers that all %ustice can be co"ered b the precept of treating li+e cases ali+e! Administrati"e %ustice# one of the aspects of %ustice# is essentiall related to the concept of la$ as a s stem of rules! &ut# a legal s stem might still engross great distributi"e and compensator in%ustice! 6urther# it must be remembered that %ustice is onl one of the elements of moralit and ma be o"erridden b other elements! Ho$e"er# if one decides to o"erride %ustice to the common good# Hart belie"es that one ma be re4uired to consider impartiall all the competing claims of persons D7! (n short# e"en if some in%ustice is inflicted for the common good# all persons should be treated ali+e b being gi"en e4ual considerations!

EeferencesF
1! &a les G .ichael (1992 ) )art%s Le&al Philosophy* +n E,amination,

London# Gordrecht# &ostonF Klu$er Academic :ublishers! 2! &odenheimer# Edgar (197D) urisprudence 2 The Philosophy and the Method of Law# 8e$ GelhiF 9ni"ersal La$ :ublishing =o :"t Ltd! 1! Gh ani# @8 (200D) $undamental of urisprudence# AllahabadF =entral La$ Agenc ! D! Gias# E,. (199D) urisprudence 8e$ GelhiF Adit a &oo+s :ri"ate Ltd!
D-

Hart# HLA (1902) :unishment and Eesponsibilit F Essa s in the :hilosoph of La$ <'fordF =larendon :ress!# pp 2D-2-! D0 &a les op cit# p 110! D7 Hart# Concept of Law# p101!

-! 6inch# ;ohn G (197D) "ntroduction to Le&al Theory# (@econd Ed I 6irst (ndian Eeprint) 8e$ GelhiF 9ni"ersal La$ :ublishing =o :"t Ltd! 0! 6uller# Lon L (1909) *he Morality of Law# @econd Ed# (ndian Eeprint 200D# 8e$ GelhiF 9ni"ersal La$ :ublishing =o :"t Ltd! 7! Hart# HLA (1901) Concept of Law <'fordF =larendon :ress! 2! Hart# HLA (1901) Law Liberty and Morally @tanfordF @tanford 9ni"ersit :ress! 9! Hart# HLA (1902) Punishment and 3esponsibility4 Essays in the Philosophy of Law# <'fordF =larendon :ress! 10!Hart# HLA (1921) Essays in urisprudence and Philosophy# 11!Ea? The Concept of a Le&al 'ystem#