Image Source: Kompasiana

 

Hart was an important legal thinker of the 20th century. Hart’s works, as noted by a prominent legal thinker and close relative, Tony Honoré, are among the most widely read and will continue to be the focus of discussion.[i]

The book that has succeeded in bringing Hart’s name to the fore in the ranks of the latest legal theorists is The Concept of Law. Through this book, Hart raises three important questions in the philosophy of law, namely How is law different from and how is it related to orders supported by threats? How is legal obligation different, and how is it related to moral obligation? What are regulations and to what extent are laws a matter of regulation? [ii]

Hart claims that he has answered these three important questions and has therefore solved the riddle of the philosophy of law. In this paper, the author will attempt to describe Hart’s views on law and morality, as well as the relationship between them.

In other words, this paper attempts to answer the following questions: (a) What is Hart’s opinion about law and morality?; (b) What exactly is Hart’s opinion of their relationship?; and (c) Is Hart’s legal concept of law as rules adequate in explaining the nature of law? To answer these three questions, this paper will follow the systematics as follows: (1) introduction; (2) Hart’s views on the law; (3) Hart’s opinion on the relationship between law and morality; and (4) conclusions and the author’s critical review of Hart’s arguments regarding the relationship between law and morality.

Legal Essence
In an effort to explain the nature of law, Hart departs from Austin’s positivism view. Austin defines law as the Order of a person a king or a sovereign, who is politically superior.[iii] This superior can be an individual or a group of persons who have the power to impose sanctions. The superiority of an individual or group of people according to Austin is characterized by two main characteristics: (1) there are citizens who have the habit of obeying orders issued by superiors, and (2) superiors who do not submit to others. These two characteristics mark the supremacy and independence of law in society.

According to Hart, the Austin legal concept as mentioned above can be analogous to order from an armed person. In such situations an armed person orders his victim to do or not to take certain actions (required to hand over money or prohibited from shouting, for example). The mugger’s order must be carried out and if it is violated then there are consequences that must be paid by the mugger. So is the law. The law commands people to do or not to do something. The order is mandatory and violations of it will be subject to sanctions, in the form of fines or imprisonment.

However, according to Hart, the legal analogy with a mugging situation, in which there are orders that must be carried out and sanctions are given, is not appropriate. Hart points out three significant differences between laws and orders. First, the command only obliges the person being governed, but the law, even the criminal law closest to the command as described by Austin, not only imposes obligations on ordinary citizens but also on those who make it.

Second, there are many laws that are not like orders in that they don’t require people to do something, but instead, give them power. The rules facilitate people to create legal rights and obligations. For example, a rule about an agreement or contract. This last type of rule does not charge people with any particular threat. Instead, the rule guarantees citizens to freely create legal agreements between them.

Third, the rule of law does not always come from a deliberate act of law. In common-law systems, the custom is often an important source of law.

From the description above, it can be concluded that the law which is understood as an order accompanied by sanctions cannot give us an adequate understanding of the law. As explained above, the model has reduced the application, scope, and origin of the law. For this reason, Hart seeks to find other characteristics that can lead to a better understanding of the law. If orders accompanied by threats are not the character of the law, then what is the character of the law? In other words, what makes a law a law?

Law as a unit of primary and secondary rules
After pointing out some of the weaknesses of Austin’s view, Hart then presented his own opinion on the law. According to him, the law can be understood through two types of rules, namely primary rules, and secondary rules. He asserts that in the combination of these two types of rule lies what Austin mistakenly claims is found in the notion of sanctioned commandments as the key to the science of jurisprudence. In other words, Hart claims the combination of these two rules is the key to understanding the law. Hart’s point is that it is through these two types of rules that many of the ideas that build a legal framework such as the notions of obligation and legal validity can be explained. For this reason, Hart does not hesitate to call these primary and secondary rules the essence of the law.

The primary rules that Hart is referring to are the rules that impose obligations (obligations). These rules are the standard in the life of a society. For people who live in a legal system, the primary rules are nothing but written rules such as laws, presidential decrees, etc. Primary rules, in short, are rules that impose obligations on people living in a legal system.

In addition to primary rules, a legal system also has other forms of regulation, namely secondary rules. The secondary rule referred to here is nothing but the foundation of the primary rule itself. Hart divides secondary rules into three types, namely the rule of recognition, the rule of change, and the rule of adjudication. According to Hart, these three rules are a condition for the existence of a legal system. Therefore, without secondary rules, there would be no legal system as we encounter in modern life.

According to Hart, a community that is only governed by primary rules has three weaknesses. The first, uncertainty (uncertainty). Society does not have a definite grip to distinguish the rules of law from other rules such as the rules of morality, customs, or religion. This weakness of uncertainty can be overcome by one type of secondary rule, namely the rule of recognition. This recognition rule allows

people recognize the primary rules that apply in their community. In other words, it is this recognition rule that determines the validity of the applicable law in society. The rule of recognition itself is social practices that are considered authoritative, such as council member hearings, presidential decisions, or past court practices.

Second, these rules are static because people do not have a way to adapt the rules to changing conditions, either through the abolition of old rules or by introducing new rules. Against this weakness, the amended rules authorize members of the board or other officials to propose new regulations or delete old regulations.

Third, the administration of the rules is inefficient because there is no institution specifically given the power to impose penalties when there is a violation of the law. Against this weakness, the rules of adjudication determine who the party (person) is authorized to give a decision. These termination rules also determine the standard of an adequate decision for the violation.

Relationship of law and morality
As described above, according to Hart, the essence of law is a combination of two types of rules, namely primary rules, and secondary rules. This view is not only intended to correct Austin’s legal concept but also to criticize the theory of natural law which assumes that there is an absolute relationship between law and morality.

In Hart’s view, the assertion that between law and morality there is a necessary or absolute relationship has many important understandings, but not all of these relationships are clearly visible. Departing from this ambiguity Hart seeks to demonstrate and evaluate the reasons underlying this view. According to him, none of the reasons put forward to show the absolute relationship is adequate, although he admits that some aspects of the arguments put forward have the truth, in accordance with some facts that can be found in the legal system.

Hart recognizes that law, justice, and morals have a very close relationship. Even one aspect of justice, namely administrative justice, and in the minimum natural law, law, and morality are absolutely related. Administrative justice referred to here is nothing but justice in the application of the law. The application of punishment to a person is based solely on the characteristics stated in the law. The law on murder, for example, stipulates that a person who intentionally takes the life of another person is sentenced to fifteen years, so from this provision, we will know which characteristics are relevant and irrelevant for punishing the perpetrators of the murder. The perpetrator’s skin color and hair type are irrelevant; while the person’s decisions or intentions are relevant. If in deciding a particular case the characteristics mentioned in the law are ignored, then the application of the punishment is considered unfair. Justice in the application of this law according to Hart has an absolute relationship with the law. However, this absolute relationship only concerns the administration of law and this type of justice can also occur in a legal system that is full of unfair laws.

In addition to legal administration, Hart also recognizes the important relationship between law and morality in minimum natural law. The minimum natural law is nothing but Hart’s own view of human nature which is different from classical natural law. According to him, the most basic of human nature is survival, because by surviving humans can fulfill other life goals. In order to survive, in addition to requiring the availability of consumption materials, humans also need rules that can maintain their life with them. This is where morality and law meet; these two rules, although different, both demand the same thing, namely the maintenance of life with humans.

However, the absolute relationship between law and morality in this minimum natural law, according to him, is not a logical absolute, but a natural absolute. It is called absolutely natural because the absoluteness of the relationship is based on the natural conditions of human life itself. That is, as long as the conditions of human life do not change, then law and morality will be absolutely related.

Hart only recognizes the absolute relationship of law and morality in minimum natural law and the administration of law, and it is, as already mentioned, not absolutely logical as has been assumed so far. In The Concept of Law, Hart examines six other reasons that serve as the basis for demonstrating the absolute relationship between law and morality.

First, power and authority. The first point regarding the absolute relationship between law and morality relates to the issue of power and authority. It is often said that a legal system must rest on an understanding of moral obligations or on a moral belief in the system. A legal system, in this view, cannot be based solely on human power over other humans. In a legal system, people who obey the law (pay taxes, for example) should know that what they are doing is in line with their moral beliefs. In other words, there must be a match between legal and moral obligations.

In Hart’s view, the opinion that emphasizes the compatibility between legal obligations and morality is an inadequate view. Hart agrees that a legal system cannot exist solely on the power of one person over another. Therefore Hart rejects Austin’s theory which understands the essence of law as a command accompanied by threats. To be able to run properly a legal system is not only based on power but also the voluntary acceptance of the people in the system. However, according to Hart, the dichotomy between law based solely on power and law which is accepted as morally binding is not a complete (exhaustive) dichotomy.

Hart argues, “It is not only possible that most” those subject to the law do not view it as morally binding, nor is it true that those who do accept the system voluntarily must believe that they are morally bound to do so.

In other words, one’s obedience to the law does not automatically come from a moral point of view. Citizens’ acceptance of the law can come from habits or a desire to act as other people do, although Hart also admits that a legal system will be more stable if the people in that system accept rules based on moral incentives. Thus, even in this sense, there is no absolute relationship between law and morality.

Second, the influence of morality on the law. Law and morality have an absolute relationship because they have a reciprocal relationship. The morality of a society affects legal products and the law affects the good and bad views of that society. If this is what is meant by the absolute relationship between law and morality then Hart wholeheartedly accepts it. Even further, Hart argues that no positivism can deny the fact that moral views can enter into law.

Third, interpretation. Hart admits that applying the law to a vague case will involve certain considerations, judgments that show how the law ought to be. According to Hart, the decisions given by judges in certain cases are not based solely on arbitrariness but are guided by principles, social policies, and moral beliefs; existing law, and the law that should be intertwined in legal interpretation. When interpreting laws and precedents, judges are not limited by existing alternatives and personal will, or mechanical deductions’ from rules whose meaning has been definitively determined. Often their choice is guided by the assumption that the purpose of the rules they are interpreting is a reasonable one so that the rules are not meant to produce injustice or violate established moral principles.

However, Hart rejects the conclusion that because moral views also influence the interpretation of the law, the two are absolutely related. For this objection, Hart put forward three reasons. First, the standards that become a reference for how the law should be, in fact not all are followed. Second, the law that should not be absolute refers to morality. According to Hart, the word must reflect the existence of several standards and moral standards are only one of them. For example, it is quite possible for a judge to issue a decision based on social objectives. Third, the opinion regarding the absolute relationship between law and morality also contains a proposal to expand the meaning of the law to include standards, principles, and social policies which are also considered by judges in deciding a case.

What makes a person moral is it that they do right out of fear of repercussions from law or government or is because they do right out of their own free will?

[i] Lihat Hart Interviewed: H. L. A. Hart in Conversation with David Sugarman, ―Journal of Law and Society‖, Vol. 32, No. 2 (June, 2005), hal. 267-293.

[ii] H. L. A. Hart, ―The Concept of Law”, edisi kedua (Oxford: Oxford University Press, 1994), hal. 13.

[iii] John Austin, ―The Province of Jurisprudence Determined”, ed. H.L.A. Hart (London: Weidenfeld & Nicholson, 1954), hal. 134.

Source

This paper is an abridged version of the title of Peter CKL’s thesis. Bello proposed and defended the post-graduate program at STF Driyarkara Jakarta.

BELLO, Petrus CKL. Hubungan Hukum dan Moralitas Menurut HLA Hart. Jurnal Hukum & Pembangunan, 2017, 43.3: 348-361.