Reading guide for Mon. 2/16: H. L. A. Hart, The Concept of Law, ch. 9, §1 pp. 192f, §2, §3 (vi), note to p. 208 (pp. 192-200, 207-212, 303f)
 

This assignment includes a somewhat disparate collection of material all related to Hart’s views on the dispute between natural law theory and legal positivism.

Although your assignment is all from ch. 9, there is some further material relevant to it also in ch. 8. Hart there considers some common features of law and morality, and you can find a summary of these at the middle of p. 172. He also considers four differences, which appear as numbered points in the remainder of §2, pp. 173-180.

We will be focusing on two ideas from ch. 9. The first concerns areas in which law and morality overlap by what he speaks of as a “natural necessity” (p. 199). The second is a discussion of the degree to which natural law theory and legal positivism provide support for criticisms of legal systems.

• In the last paragraph of §1 of ch. 9, Hart prepares the way for his discussion in §2 by describing the sense in which and the limited degree to which he thinks a system of law must seek the common good (pp. 192f).

• He then goes on to outline the content of this minimal natural law theory in §2 (pp. 193-200). Think about the connections he sees between individual aspects of the human condition and features of legal systems. Are the latter features really all required for a legal system to serve the function he is describing? Is there anything of the same sort missing from his list?

• In §3, Hart considers arguments for a closer connection between law and morality than he has granted in §2. We will look only at the last of these (pp. 207-212). Although the issue he considers there is a broad one, he looks at it by way of a particular example. He describes this example on p. 208 (though be sure to follow his reference to a later note, pp. 303f, to get the history right). In assessing Hart’s argument about this issue, think not only about the historical case but also about his general claim (at the end of p. 210) that the perspective provided by legal positivism is more conducive to moral resistance to unjust law than is the perspective of natural law theory.