HARTS MINIMUM CONTENT OF LAW

The question on the relationship between legal validity and morality is a

perennial one. There are the legal positivists who tend to rally around Austins

claim that the existence of law is one thing; its merit or demerit is another and
there are the natural lawyers who tend to follow Augustines claim that a law

which is unjust seems to be no law at all . Amidst the struggle in reaching a

definitive resolution on this question, the work of Professor H.L.A Hart has made

significant contributions to this area of contention from a soft positivist

perspective.

Not only does Hart claim that it is in no sense a necessary truth that laws

reproduce or satisfy certain demands of morality , but he explicitly

acknowledges that the rule of recognition may incorporate as criteria of legal

validity conformity with moral principles or substantive values . He also goes a

step further and makes a concession that there is a core of good sense in the
doctrine of Natural Law .

iThe Concept of Law, Hart expounds on what he takes to be the minimum

content of natural law . His minimum content of natural law rests upon, the
generalargumentthat without such a content laws and morals could not
forward the minimum purpose of survival which men have in associating with
each other.

Human condition
Hart argues that there are five features of human condition which sometimes

work against survival and believes that every legal system must take these into
account. As such, Hart, who claims to be a legal positivist, acknowledges that

there is a connection between law and human nature based on the following
truisms ;

Human vulnerability, which dictates the proscription of violence. The argument

lies in the simple fact that men are both occasionally prone to, and normally

vulnerable to, bodily attack. Thus, if there are no such rules restricting violence,
there would be no point in having rules of any other kind .

Approximate equality, meaning that although men have different capacities, no

individual is so much more powerful than others, that he is able, without cooperation, to dominate or subdue them for more than a short period of time .
Thus, there is a need for a system of mutual forbearance and compromise which
is the base of both legal and moral obligation .

Limited altruism, which makes rules of mutual forbearance necessary to secure a

balance between altruistic and selfish inclinations in a social pattern of life .

Limited resources, meaning that since necessities needed by men for survival are

limited and can only, be won though labour, there is a need for a minimal form
of the institution of propertyand the distinctive kind of rule which requires
respect for it .

Limited understanding and strength of will, which tempt individuals into deviant

or anti-social conduct for short-term personal gain, thus, rendering sanctions as

crucial to ensure compliance with the rules.

As such, Hart argues that there is a natural necessity that legal systems contain

rules for the protection of persons, property and promises . These are the rules
of conduct which any social organisation must contain if it is to be viable and

which are necessitated by certain contingent truisms about human beings and the
world in which they live. Therefore, taking the premise to be that all human
beings desire to live or survive, it is concluded that every legal system has for that
very reason these universally accepted principles which form the minimum
content of natural law, and which are common to law and morality.

It submitted that Harts minimum content of natural law is indeed thoroughly

minimal. In advancing his minimum content of natural law, Hart simply offers a
very human set of assertions, of them made as empirical generalisations, not a
priori truths, about limited altruism, vulnerability, approximate equality and

limited resources . It is also rather restricted to rules relating to injury, property,

life and death. This is due to the fact that Hart has only taken into account the

sole basic aim of survival. As a result, those moral rules that do not concern the
aim of survival will not be included. In addition, there is also some truth to Harts
empirical generalisations concerning human nature. Human beings are generally
vulnerable and the strongest individual is capable of being killed by a group of

weaker individuals as men are not giant crabs, with impenetrable shells.
Furthermore, there is a real problem of resources being scarce, thus our wants

tend to outstrip what is available to supply them. As such, enforceable rules are
required to overcome the problems posed and this is something which every legal
system should take into account.

Therefore, it is very difficult to dissent from Harts minimum content of morality

which comprises of those necessary norms of social interaction which while

reflecting moral considerations, are necessary for any system of law to be
minimally effective as a legal system. In fact, in most legal systems, fundamental

moral norms are enshrined in law as basic criminal prohibitions. Rules

forbidding murder is one example and such a rule is indeed crucial for a society
to be viable. Many such provisions seem to reaffirm the moral base of social order
and penalise those who do not follow the rules.

However, it is debatable as to whether survival is the sole aim that can be

generally predicated of man and his societies. Generally, the aim of man is to not
only survive, but to survive well, and to live according to some conceptions of a
desirable, good or just life. As such, laws in a social organisation would need to

embody mens needs to survive as well as their conceptions of what is desirable,

good and just. Therefore, Patterson suggests that any definition of the ultimate
end of man should therefore take into account not only the biological facet of

man's existence but also man's unique intellectual and social capacities . This
point is made by Rolf Sartorius who asserted that Hart's notion of natural
necessity is presented in terms of what there are good reasons for given survival

as an aim. But surely room must be made for loftier human pursuits than mere
survival (of either the individual or species). I suspect that some attempt at
realizing those social and environmental conditions which provide an
opportunity for individuals to lead meaningful lives will have to be made here.

Hart justifies his refusal to take into account a mans unique intellectual and

social capacities on the premise that there are too many definition and that there

is a lack of consensus over which is correct . It has been argued by Patterson, that
Hart places too much focus on aspects of classical natural law theory that he fails

to consider the Finniss account of man's ultimate end . His account states that no
determinate one natural last end or determinate unifying principles of individual
or social life but that man's ultimate end is the participation by a multiplicity of

persons in a manifold of goods . These goods exclude no aspect of individual

wellbeing and is potentially affected by every aspect of every life plan. Thus,
Patterson concludes that because they include life in addition to a plurality of

other goods such as knowledge, friendship, religion and play, all of which
account not only for the biological aspects of man but also the rational and social,

it negates the need for Hart's cautiousness in having to select one ultimate
principle or good. Thus, it is submitted that the survival, being defined as the
ultimate end of man is too simplistic and does not truly reflect the true situation.

Furthermore, it is also argued that there is a need for procedural requirements

within the law to ensure the survival of all the members of the society and that it

is not sufficient to only merely comply with Harts minimal moral content . Hart
suggests that for a society to be viable, it must offer some of its members a system

of mutual forbearances, but, it need not, unfortunately, offer them to all. Hart

proposes this despite admitting to the possibility that in extreme circumstances

when a sufficiently large number of people are oppressed and derived of

protection from the law, the legal system may become unstable with latent treat
of upheaval and may eventually collapse.

Although Hart, in his later article, recognises that all men who have aims to

pursue need the various protections and benefits which only laws conforming to

... requirements of substance and procedure can effectively confer and that laws,
however, impeccable their content, may be of little service to human beings and

may cause both injustice and misery unless they generally conform to certain

requirements which may broadly be termed procedural , he does not include any
such procedural requirement into the minimum moral content of law.

Accordingly, despite highlighting the importance of the rule of law as embodied

in certain requirements of procedural fairness, Hart fails to explicitly broaden the
minimum moral content of law so as to include them.

Consequently, Patterson suggests that the requirement of fairness and justice

must be taken into account in order to ensure the survival of the members of a

particular society as well as the legal system . This suggestion is further supported

by Harts later acknowledged that the purpose of law does not only ensure

survival, but facilitates the pursuit of aims as well. The reason for Hart failing to
take into account requirements of fairness or justice within his minimum moral

content of law could be due to his claim that it is possible for a legal system to

exist even though much of its substantive and procedural content is unfair or
immoral. However, beyond a certain point, a system sufficiently lacking in
fairness or justice can collapse even though it conforms to Hart's minimum moral

content because, according to Hart, the more a system is oppressive and unjust,
the more likely it will be unstable. In conclusion, Hart correctly concedes to that
fact that there needs to be a minimum moral content in law to ensure the survival

of the members of the society. However, it is argued that mere adherence to Harts
minimum content of morality itself will not ensure the survival of the members in

a society. Procedural fairness should be incorporated within the law in order to

ensure survival of the members of the society and the stability and continuance of
the legal system.

Hart's idea of the minimum content of natural law can be defined in

the following manner:
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.
2: In turn, for the association to be viable, the survival and continued
existence of at least some of its members must be ensured.*
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: