H.L.A. Hart, Law, and Morality
Ok, so I wrote this as a post for my Philosophy of Law class, but I figure I need content, and I'd like to thorw it out there.
The book referred to is The Concept of Law, by H.L.A. Hart. He was a legal philosopher who took a positivist point of view in his writings. Basically, there is no natural law that informs the actual law we have (as some, such as Thomas Aquinas and Martin Luther King, have argued). He would disagree with the notion that "an unjust law is not law."
Anyway, here is the post:
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Positivism is a harm, but Hart says, “let them eat cake.”
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Hart makes, in my view, a convincing argument against the “naturalness” of any specific provision of the law or human custom. To paraphrase, he believes that what we (and the classic philosophers) call “morality” and “justice” are mental and societal shortcuts. They exists because, taken in the aggregate, morally-termed behavior on the part of the majority of people tends to make society run smoother than amorally- or immorally-termed behaviors.
His is a descriptive definition of morality, not a normative one (I apologize, as I tend to harp on that theme a lot). He does not believe in a divine source for morality, but that it can be defined in humanistic terms. Note that he sees an intersection between morality an justice, but not a definite one to one relationship. Hart believes that morality can inform the law, but that that is the extent of the relationship. He also, it would appear, does not believe in much stasis in the definition of justice. Note his emphasis on interpretation and what he terms a “balancing” by judges. So much for the summary.
Here is what I don’t get, and bear in mind that it is not a criticism of Hart: What good does it do us to deconstruct the morality, then? I know that I feel that it is a “good” thing to identify the limits of morality, but is it? If morality and its influence on the law are so important, if “liability for both criminal and civil wrongs may be adjusted to prevailing views of moral responsibility,” then are not positivists harming us? If the functioning of society depends on morals being taken seriously, then by deconstructing morality are they not in fact hampering the smooth functioning of civilization? Let’s say that, to take one hypothetical example, sexually transmitted diseases are bad, and the prevailing arbiter of monotheistic morality issues a proclamation that the Goddess told her that sex without condoms is morally wrong. The rate of condom uses does up, for fear of damnation. Then lets say a legal philosopher, Bizarro-hart, deconstructs that moral proclamation and is lauded for it. People buy into the lack of moral force behind the law, and condom use goes down. Even with education programs that tell people the materialistic reasons why they should use condoms, the numbers for condom use are far lower than when under the moralistic regime. This is because, to use real-world Hart’s words, the populace has “limited understanding and strength of will”; the force of law AND morality combined succeeded better than in the later regime. I admit this is a loaded example, and not think it matches anything in our current climate (oh man, I hope not). Still, in such a world, is a positivist doing harm?
Einstein’s general theory of relativity superseded Newton’s Theory of Gravity. This was not because Newton’s theory was wrong in its calculations, but because at the really small decimals, Einstein’s theory fit the facts better. Most of the time, for many calculations, Newton’s theory works just fine and it would be a waste of resources to use a calculation as complex as Einstein’s. So, is Hart’s theory akin to Einstein’s in this regard? Is the Newtonian morality just fine for the general populace, as Hart seems to think? Is Hart setting up a world view where an elite few are able to pierce the veil of morality, but continue to support the moral system for the masses? Is this arrogant?
The book referred to is The Concept of Law, by H.L.A. Hart. He was a legal philosopher who took a positivist point of view in his writings. Basically, there is no natural law that informs the actual law we have (as some, such as Thomas Aquinas and Martin Luther King, have argued). He would disagree with the notion that "an unjust law is not law."
Anyway, here is the post:
***
Positivism is a harm, but Hart says, “let them eat cake.”
***
Hart makes, in my view, a convincing argument against the “naturalness” of any specific provision of the law or human custom. To paraphrase, he believes that what we (and the classic philosophers) call “morality” and “justice” are mental and societal shortcuts. They exists because, taken in the aggregate, morally-termed behavior on the part of the majority of people tends to make society run smoother than amorally- or immorally-termed behaviors.
His is a descriptive definition of morality, not a normative one (I apologize, as I tend to harp on that theme a lot). He does not believe in a divine source for morality, but that it can be defined in humanistic terms. Note that he sees an intersection between morality an justice, but not a definite one to one relationship. Hart believes that morality can inform the law, but that that is the extent of the relationship. He also, it would appear, does not believe in much stasis in the definition of justice. Note his emphasis on interpretation and what he terms a “balancing” by judges. So much for the summary.
Here is what I don’t get, and bear in mind that it is not a criticism of Hart: What good does it do us to deconstruct the morality, then? I know that I feel that it is a “good” thing to identify the limits of morality, but is it? If morality and its influence on the law are so important, if “liability for both criminal and civil wrongs may be adjusted to prevailing views of moral responsibility,” then are not positivists harming us? If the functioning of society depends on morals being taken seriously, then by deconstructing morality are they not in fact hampering the smooth functioning of civilization? Let’s say that, to take one hypothetical example, sexually transmitted diseases are bad, and the prevailing arbiter of monotheistic morality issues a proclamation that the Goddess told her that sex without condoms is morally wrong. The rate of condom uses does up, for fear of damnation. Then lets say a legal philosopher, Bizarro-hart, deconstructs that moral proclamation and is lauded for it. People buy into the lack of moral force behind the law, and condom use goes down. Even with education programs that tell people the materialistic reasons why they should use condoms, the numbers for condom use are far lower than when under the moralistic regime. This is because, to use real-world Hart’s words, the populace has “limited understanding and strength of will”; the force of law AND morality combined succeeded better than in the later regime. I admit this is a loaded example, and not think it matches anything in our current climate (oh man, I hope not). Still, in such a world, is a positivist doing harm?
Einstein’s general theory of relativity superseded Newton’s Theory of Gravity. This was not because Newton’s theory was wrong in its calculations, but because at the really small decimals, Einstein’s theory fit the facts better. Most of the time, for many calculations, Newton’s theory works just fine and it would be a waste of resources to use a calculation as complex as Einstein’s. So, is Hart’s theory akin to Einstein’s in this regard? Is the Newtonian morality just fine for the general populace, as Hart seems to think? Is Hart setting up a world view where an elite few are able to pierce the veil of morality, but continue to support the moral system for the masses? Is this arrogant?
posted by Chicago Typewriter at 9:48 PM
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