IX.

Law and Morals

Even if its exact relation cannot be definitively put
forth, it is largely indisputable that indeed a relation exists
between morals and the law. For one, it is accepted that
the development of law is greatly influenced by conventional
morality of the authorities that create the law and the social
group and environment to which that law is to be applied,
and may even be influenced by forms of moral criticism by
those who have been enlightened beyond the traditional
understanding of conventional social morals. On the
other hand, it is likewise granted that this relation does not
necessarily mean that the validity of laws always and
certainly refer to the validity of a societys moral standards
and vice versa.
One aspect of the relationship between law and
morals involve a discussion of the issue between natural
law and legal positivism. Legal positivism is taken to mean
that it is a necessary truth that laws reproduce or satisfy
certain demands of morality. One form of legal positivism is
expressed most clearly in the classical theories of natural
law, that there are certain principles of human conduct to
which man-made law must conform if it is to be valid. The
other form of legal positivism takes a different, less rationalist
view of morality, and offers a different account of the ways in
which legal validity is connected with moral value.
Different philosophers have tried to dissect the
concept of natural law and its relation to the laws of man.
Montesquieu is cited to have asked the question, why it is
that, while inanimate things such as the stars and also

animals obey 'the law of their nature', man does not do so

but falls into sin? John Stuart Mill answers such inquiry by
saying that:
Prescriptive laws may be broken and yet remain
laws, because that merely means that human
beings do not do what they are told to do; but it
is meaningless to say of the laws of nature,
discovered by science, either that they can or
cannot be broken. If the stars behave in ways
contrary to the scientific laws which purport to
describe their regular movements, these are not
broken but they lose their title to be called 'laws'
and must be reformulated.1
Those who challenge the notion that the laws of man
spring from natural law, attribute their opponents confusion
to the theocratic view of law that they continue to hold, such
that there was little difference between the laws of nature,
such as gravity, and the laws as prescribed by the Divine
Creator, the difference being based on the free will and
power of reason granted to men by God.
It is likewise asserted that the concept of natural law
is based on an old conception of nature, where every thing,
from man to inanimate objects are not merely a scenery
following a natural order of regularities nor an environment
tending to maintain itself, but an active process seeking to
achieve a definite optimum state 2. This is called the
teleological view of natural law. One of the difficulties in
1 Hart, Concept of Law (1979), p. 187
2 Hart, Concept of Law (1979), p. 189

understanding a teleological view of nature is that just as it

minimized the differences between statements of what
regularly happens and statements of what ought to happen,
so too it minimizes the difference, so important in modern
thought, between human beings with a purpose of their own
which they consciously strive to realize and other living or
inanimate things. For in the teleological view of the world,
man, like other things, is thought of as tending towards a
specific optimum state or end which is set for him and the
fact, that he, unlike other things, may do this consciously, is
not conceived as a radical difference between him and the
rest of nature.3
In sum, under the teleological view of natural law, it is
the tacit assumption that the proper end of human activity is
survival, and this rests on the simple contingent fact that
most men most of the time wish to continue in existence.
The actions which we speak of as those which are naturally
good to do, are those which are required for survival 4, mans
definite optimum state. Philosopher Hume, however,
takes this notion a step further by asserting that 'Human
nature cannot by any means subsist without the association
of individuals: and that association never could have place
were no regard paid to the laws of equity and justice 5. Thus,
it is supposed that our desire to form societies, social
structures and arrangements arises from our desire for
continued existence. Any other question concerning how

men should live together, it is assumed that their aim,

generally speaking, is to live. This, Hart says, is the
minimum content of natural law6.
The general form of the argument is simply that
without such a content laws and morals could
not forward the minimum purpose of survival
which men have in associating with each other.
In the absence of this content men, as they are,
would have no reason for obeying voluntarily
any rules; and without a minimum of cooperation given voluntarily by those who find that
it is in their interest to submit to and maintain the
rules, coercion of others who would not
voluntarily conform would be impossible.7
The minimum content of natural law, according
to Hart, is broken down into five truisms:
(1) Human vulnerability. Hart said that the
common requirements of law and morality
consist for the most part not of active
services to be rendered but of
forbearances,
which
are
usually
formulated
in
negative
form
as
prohibitions. Of these the most important
for social life are those that restrict the
use of violence in killing or inflicting bodily
harm. The basic character of such rules
may be brought out in a question: If there

3 supra, p. 190
4 supra, p. 191

6 Hart, Concept of Law (1979), p. 193

5 Hume, Treatise of Human Nature, III. ii, 'Of Justice and Injustice'.
7 supra

were not these rules what point could

there be for beings such as ourselves in
having rules of any other kind? Thus, he
said, the most basic provision of law and
morality: Thou shall not kill.
(2) Approximate equality. It is granted that
men differ from each other in physical
strength, agility, and even more in
intellectual capacity. However, it is also
granted that these advantages are
likewise subject to approximate equality
because Hart asserts that no individual is
so much more powerful than others, that
he is able, without co-operation, to
dominate or subdue them for more than a
short period. Even the strongest must
sleep at times and, when asleep, loses
temporarily
his
superiority. 8
Hart
continues by saying, This fact of
approximate equality, more than any
other, makes obvious the necessity for
a system of mutual forbearance and
compromise which is the base of both
legal and moral obligation.9
(3) Limited altruism. On the premise that
the modest aim of humanity is survival
and the pursuit of necessities, Hart states
8 Hart, Concept of Law (1979), p. 195
9 Supra

that men are not inherently out to

exterminate each other, but neither are
they angels who are inherently expected
nor programmed to assist their fellowmen.
As things are, he says, human altruism is
limited in range and intermittent, and the
tendencies to aggression are frequent
enough to be fatal to social life if not
controlled.
(4) Limited resources. Still on the basis of
the premise that the pursuit of
necessities is inherent in the aim of
survival, Hart asserts that this make
indispensable some minimal form of the
institution of property (though not
necessarily individual property), and the
distinctive kind of rule which requires
respect for it.
(5) Limited understanding and strength of
will. This concept is the basis for Harts
assertion that laws are imposed on the
premise of mutual forbearance and the
penalty of sanctions. He continues by
saying that sanctions are therefore
required not as the normal motive for
obedience, but as a guarantee that those
who would voluntarily obey shall not be
sacrificed to those who would not.10
10 Hart, Concept of Law (1979), p. 198

Hart ended this chapter by saying that:

A concept of law which allows the invalidity of
law to be distinguished from its immorality
enables us to see the complexity and variety of
these separate issues; whereas a narrow
concept of law which denies legal validity to
iniquitous rules may blind us to them. It may be
conceded that the German informers, who for
selfish ends procured the punishment of others
under monstrous laws, did what morality forbad;
yet morality may also demand that the state
should punish only those who, in doing evil, did
what the state at the time forbad.11

11 supra, p. 211