H.L.A.

Hart, Laws and Morals, and the Minimum Content of Natural Law
When laying down the framework for the basic debate between positivism and natural law, Hart thinks
it necessary to clarify, first, what the debate is not about. He does not contest the truistic claim that the
development of law, at all times and places, has been profoundly influenced by conventional (and, for
that matter, unconventional) morals. However, that does not necessarily imply that a legal system must
exhibit some specific conformity with morality or justice.
Hart's argument is essentially a response to classical natural law theorists. Such theorists believe that
there is a specific system of morality, consisting of certain principles, discoverable by reason, that any
law must conform with if it is to have the status of law. This viewpoint is grounded in the basic idea that
Hart defines as the "teleological view of nature"; namely, that everything in nature, including man, is
moving towards a teleos, a specific end. The teleos of an acorn would be the culmination of its growth
into a full-fledged, healthy oak tree. The teleos of human beings is a condition of biological maturity
coupled with an excellence of mind and character. And natural law must promote, by its directives, the
achievement of this teleos.
The idea of what forms teleos for mankind has been violently disputed and debated over the centuries.
Taking on from Hobbes and Hume, Hart chooses what he feels is the lowest common denominator, the
basic indisputable minimum which (almost!) all people will agree on: survival, nothing more, nothing
less.
There are two reasons that Hart provides for picking survival as the basic end for humankind. First, that
not only do almost all men wish, above all else, to continue living, but the very structures of our thought
and language (words like harm and benefit, illness and cure, disease and safety) embody this desire.
Second, while specifically discussing law, we are discussing how best to govern the conduct of people
who are living together; and to achieve that, they must be living in the first place!
Therefore, given that survival is an undisputed end, laws must contain certain content to make sure that
that end is realised. This Hart calls the minimum content of natural law.
Therefore, Hart's idea of the minimum content of natural law can be defined in the following manner:
"Proposition 1: Given that law is a mechanism for regulating the behaviour of individuals in a social
association, it must have a certain basic, minimal content in order that the association be viable.
Proposition 2: In turn, for the association to be viable, the survival and continued existence of at least
some of its members must be ensured.*
Proposition 3: The content which ensures such survival is called the minimum content of natural law."
Obviously, the content of such law is based on certain facts grounded in human nature and the state of
human existence. Hart lists five such facts:
Human vulnerability, which entails a restriction on the free use of violence;
Approximate equality, which again, restricts the use of aggression;
Limited altruism, which requires systems of mutual forbearancec;
Limited resources, which require some system of property;
Limited understanding and strength of will, which require some form of sanctions.

These five truisms about human nature, claims Hart, makes it a "natural necessity" that law has a certain
content that embodies the minimum forms of protection for persons, property and promises.
Lastly, it may be noted that Hart's idea of there being a minimum content of natural law strongly
resembles Fuller's idea of a "morality of duty," and the "eight desiderata" of law that make a legal
system possible.
Does Hart make an impermissible leap from the "is" of human nature to the "ought" of the minimum
content of natural law while grounding this content in the human condition? One may argue that the
minimum content of natural law is dependant upon survival being an end; and that, in turn, is
dependant upon the five facts that Hart has pointed out; and therefore, in the latter part of the
argument, the impermissible leap from fact to normative claim has taken place.
It is important to note, however, that a certain proposition may be contingent upon another, but there
need not be a causal link between the two. Consider the following:
Proposition A: I will have tea with X at his home tomorrow evening at 5 PM.
Proposition B: X will be at home tomorrow evening at 5 PM.
The truth value of the first statement will change in accordance with a change in the truth value of the
second statement. However, my having tea with X is not "caused" by X being at home. Therefore (as
Finnis points out), while it is true that the moral content of law is contingent upon the nature of human
existence, and would change as the latter changes, that does not equate to deriving morals out of facts.
* Because then no man would voluntarily cooperate within the system, and for a legal system to survive,
there must be the cooperation of at least some of its members (for whatever reasons) in order to
oppress the coerced majority.

HLA Hart's Concession to Natural Law; Which Way Forward?
HLA Harts Concession to Natural Law: Soft Positivism or a halfway house between
Natural Law and Legal Positivism; Which way forward?

Lex injusta non est lex An unjust law is not a law Saint Augustine of Hippo in On Free Will
True law is right reason in accordance with nature Marcus Tullius Cicero in Da Republica
The existence of law is one thing, its merit or demerit another John Austin in The Province of
Jurisprudence Determined pg. 184-185 (1832)
Legal Norms may have any kind of content Hans Kelsen in General Theory of Law and State pg. 113
(1945)


INTRODUCTION:
The above quotations highlight the bipolar nature of the clash between Natural Law and Legal
Positivism. A brief explanation of these fundamental frameworks for inquiry in jurisprudence will
suffice for our present purposes. Natural Law regards that all laws can be rationally derived from basic
moral principles either religious or secular. This theory of law was the dominant juristic force in the
ancient world and also in Judaic, Christian and Muslim theology. The rise of the nation state after the
Treaty of Westphalia 1648 and the influence of modern analytical philosophy posed serious problems
for the
uncertainty inherent in Natural Law as it deemed all human laws not in consonance with divine law (lex
divina) as invalid. Analytical Legal Positivism with its Objective Certainty thesis and Separability of
Law and Morals thesis shook the very basis on which much of Natural Law rested. David Hume, the
most prominent philosopher of the Scottish Enlightenment termed all notions of Natural law as systems
of vulgar morality and broke Natural laws methodological spine by showing via Aristotelian syllogism
the futility of deriving an ought from an is and what G.E. Moore terms as the naturalistic fallacy.
Further, the morally relativistic positivists argue that there is no universally agreed list of morals or
natural rights. Indeed, the father of legal positivism Jeremy Bentham termed natural rights as nonsense
upon stilts.
The intrinsic logical weaknesses of natural law coupled with the need for certainty and moral clarity in
the modern nation state led to the rise of positivism as the dominant legal theory in the 19th and 20th
Centuries.
However, the first half of the 20th Century also saw the two most devastating wars in the history of
mankind and the need arose to reevaluate the a moralistic basis of legal positivism. The aftermath of
these wars led to the Universal Declaration of Human Rights and the concept of the inviolability of
human life came to the fore. Considering these developments, there was a vacuum between these two
opposing schools of jurisprudence and the need for their respective advantageous precepts to be
synthesized into one coherent legal theory of general applicability. The man who endeavored to take up
this mammoth task was the Oxford jurist HLA Hart and this article will critically appraise his effort to
bring about reconciliation between the two schools.

The MINIMUM CONTENT of NATURAL LAW:
Herbert Lionel Adolphus Hart focuses on the link between law and morality in Chapter IX of his classic
tract The Concept of Law (1961). In this chapter entitled Law and Morals he proposes that the
optimum state (finis) or teleological aim of human society is survival. He bases this proposition on the
objective natural law of David Hume and Thomas Hobbes. It is submitted that Harts understanding of
the human condition does resonate the most quoted phrase of English liberal political philosophy the
continual fear and danger of violent death, and the life of man solitary, poor, nasty, brutish and short.
This minimal interpretation of natural law is based on the materialist and empirical trends of the then
prevalent philosophical methodology. As a bridge between legal positivism and natural law Hart offers
the minimum content of natural law and the oft quoted truisms of Human Vulnerability, Approximate
Equality, Limited Altruism, Limited Resources and Limited understanding and strength of will. These
axioms intend to protect persons, property and promises and all laws derived from these premises will
exhibit an overlap between law and morals. Harts new legal positivism is in contrast to his predecessor
in English analytical positivism, John Austin and his positivist Continental contemporary, Hans Kelsen.
Has Hart been successful in bridging the schism between the two opposing schools? The following
paragraphs will place Herbert Hart in the spectrum between the two schools and evaluate the success of
his moral theory.
CRITICAL APPRAISAL:
From the standpoint of religion (das mystiche) Harts optimum state of survival is more suited to
inanimate creatures rather than human beings and organized society. The Holy Quran calls man Ashraf
ul Makhlooqat or the supreme creation and that Allah has invested man with a soul over and above
his shallow material existence. Harts empirical minimum content of natural law denies the possibility of
metaphysics or a higher divine purpose for man. However in his detailed discussion Hart does mention
that St Thomas Aquinas regarded the knowledge of God as the ultimate state (finis) but still fails in his
moral theory to concede any ground to the metaphysics, mysticism or conventional religion. In his quest
to concede minimal ground to full fledge religious natural law he ignores the fact that the majority of
the people in the world believe in a higher being in one form or another. Thus his amoral positivism
loses its claim to generality from the perspective of the belief of the common man.
The Muslim theologian Dr. Muhammad Iqbal (The Reconstruction of Religious Thought in Islam, Lahore:
1930) produces his own Islamic Natural Law theory when he affirms worship and complete submission
to Allah as the purpose of man and the corresponding purpose of the modern nation state and law is to
facilitate mans quest for the divine being. Thus we see that Harts natural law theory has not attempted
yet alone succeeded in reconciling the differences between materialist philosophy and religion.

The end of the Second World War ushered in an era of renewed interest in the concept of human rights
and secular natural law. Has Hart been successful in settling his disputes with the secular natural law
lawyers like Lon Fuller and John Finnis? The answer is again ambiguous as Finniss theory is far broader
than the narrow constraints of survival and encompasses Aristotles EUDAIMONIA or human
flourishing as the aim of human existence. Survival is at best one of the objective goods in Finniss full
blown natural law theory put forward in his Natural Law and Natural Rights (1980). How is it possible
that
if both Hart and Finnis objectively derived their moral precepts from observation and still varied in the
ambit of their list? Do we rely on the minimalistic survival or on Finniss eight objective goods? There
is the argument that keeping survival as a base each society could build its own legal system but would
retain a level of uniformity and harmony necessary for interaction and communication. It is submitted
that the non-existence of such a system of common morality and laws is one of the fundamental clashes
between Islam and the West as Western Legal systems do not countenance concepts like ZINA
(adultery) and RIBA (usury). However, in circumspect why opt for a scarce minimum when the Holy
Quran offers the ultimate and most intimate understanding of the human condition which is more
accurately reflected in Finnis than in Hart. From the perspective of Dr. Muhammad Iqbal the minimal
interpretation of enforced morality or the element of permanence in Islam is the Quran and Sunnah of
the Holy Prophet (PBUH) around which revolves the Fiqh or element of change which is subject to
IJTIHAD.
Professor Lon Fullers theory has communication as a teleological aim and it forms the basis of his
conception of natural law. In all circumstances both the aims of human flourishing and
communication would include some amount of sexual morality which is totally absent form Harts
amoral minimum content of natural law. Imagine how could there be any harmonious communication
or flourishing in a society which permits incestuous relations. Levi Strauss and Sigmund Freud consider
the incest prohibition to be the basis of inter group interaction. Further, this is just the tip of the iceberg
as
religious natural law has a much longer list of sexual morality which may include adultery, fornication
etc. However, rape can be included in Harts list as it contravenes John Stuart Mills Libertarian harm
principle.
Another possible source of problem is that Hart only prescribes prohibitions in his truisms which are akin
to primary rules of obligation and does not employ his distinctive secondary rules to vary the incidents
of the truisms. With respect to laws protecting people, in times of war it can become necessary to kill
the enemy especially in self defense. Further, Human vulnerability does not account for the concept of
Jihad in Islam where martyrdom is an end in itself rather than cowardly survival. The honour code of
the Japanese Samurai warrior also gives eminence to honorable death rather than defeat. From the
secular point of view suicide, euthanasia and abortion are exceptions to this truism. Laws protecting
promises are necessary but with the enactment of the Unfair Contract Terms Act 1977 in the United
Kingdom there are serious doubts whether all promises will be accorded protection by the law especially
if there is an element of unconscionability. Compulsory acquisition of land by the government is also an
exception to the laws protecting property. It is submitted that these exceptions to the laws protecting
people, person and promises are very limited in scope and barely scratch the exterior of the crux of
Harts truisms. It is possible that he intended the truisms to be specificatio (specific) (Taklifi) rather than
determinatio (determinate) (Wadi) in the terminology of St. Thomas Aquinas and Islamic Jurisprudence.
Hart includes approximate equality between humans as a truism but does this axiom account for the
enormous and disproportionate power wielded by the modern corporation as it has been accorded legal
personality even though it is not a natural person. Hart fails to regard the corporate entity as a real
player in the human world. By granting the corporation legal personality the axiom of approximate
equality needs to be modified especially if corporate realism is taken to be the prevailing corporate
theory. Corporate realism regards the company as a citizen with rights and responsibility which are
different from the rights and responsibility of the directors or the shareholders. Harts assertion that the
5 truisms may change in the future does not compromise his moral relativism and places him towards
the positivist side of the spectrum. However, the naturalists would argue that human nature is
permanent and that this fact is evident from the history in the Holy Scriptures and research in the field
of social anthropology. Thus
despite comments to the contrary, Hart in this respect does lean towards natural law.
It cannot be denied that the rule of recognition is the foundation stone of Harts legal positivism. Any
rule, principle, edict or decree which passes through the pedigree test is accorded the position of
positive law. Hart is at his weakest when he sacrifices this certainty thesis of positivism and notes that
whatever be the majesty and aura of LAW it is not conclusive for the purposes of obedience. Is Harts
pendulum not swinging too much towards natural law and is he not calling an objectively certified law a
bad law if not an unjust law. From one perspective disobedience to a valid law which is oppressive is
democratic and protects the interests of minorities but it is at this point that the all conclusive master
rule (the rule of recognition) is sacrificed and such a conclusion tends to lean heavily towards natural
law.
The above paragraphs portray a grim picture of Harts natural law theory. However, in the concluding
paragraphs of Chapter IX Hart puts up a spirited defense of his definitive brand of legal positivism. He
states that moral clarity is the most fundamental brick of his advocacy of legal positivism. This secular
idea does resonate in our increasingly multicultural world where different races interact and there is a
need for pluralism and the protection of minorities. Hart differentiates between the validity of law and
its morality. If the two are mixed over and above the minimum content of natural law at the stage of
the law making there is no check on official abuse of power. It is submitted that Hart does accept the
difference between expository and censorial jurisprudence as envisaged by Jeremy Bentham and John
Austin. If issues of the validity and morality of law are kept separate the spirit of the reformation of law
is promoted. Extrapolating Harts ideas, if law making becomes increasingly aligned to a particular belief
of a majority group, the resultant laws majesty, aura and sanctity will go unchallenged by the weak
minority.

CONCLUSION:
As observed the minimum content of natural law is deficient is conceding any real ground to natural law
and in the process it also to an extent sacrifices Harts positivist claim. Harts soft positivism is at best a
weak synthesis of the two clashing schools as they are based on two different and irreconcilable
conceptions of life, one satisfied with materialism and the other seeking to find a transcendental
meaning to life. It is now up to a new generation of Occidental and Oriental jurists to try and find the
optimum balance between the demands of religious morality on the one hand and amoral positivism on
the other. The new world order is in desperate need for an appropriate synthesis tailored for modern
times. However, in times where the official abuse of power in the name of religion is rampant in the
developing world Harts MCNL positivism offers an alternative of pluralism and minority protection. But
then again this is just an ephemeral phase as the truth cannot be found in a world with no semblance of
permanence as envisaged by Islam.
WHICH WAY FORWARD?
Law and Morality in ISLAM:
The whole of this earth is a mosque Prophet Muhammad (PBUH) on the all-encompassing unity of
sacredness.

The sacred Law of Islam is an all-embracing body of religious duties, the totality of Allahs commands
that regulate the life of every Muslim in all its aspects
Joseph Schacht: An Introduction to Islamic Law.
The religion Islam does not countenance the bifurcation of the spiritual from the temporal and the
principle of Tawheed in addition to its theological connotation is a political concept for the organization
of the Islamic state. Law and morals are wedded in Islam and the exact quantum of their intermeddling
is determined by synthesizing the categories of permanence and change into a higher political
concept. According to Iqbal, Islam is one unanalyzable entity where the schism seeking tendencies of
secularism and legal positivism meet the principle of oneness or tawheed which pays regard to the
innermost yearnings of the human soul rather than its shallow materialist desires.
Be it the royalism of monarchs or the jugglery of democrats Separate religion from politics and one is
left with the barbarism of Genghis Khan