Many people will agree that morality and law are related in that laws are formed based on societal moral principles (Green, 2008). However, Herbert L. A. Hart maintains that law and morality are separate and should be viewed as such for purposes of enforcement of the law. Hart is a British professor of philosophy, teacher, and author with permanent tenure in jurisprudence at Oxford in addition to being the Principal of Brasenose College. Hart was the foremost legal philosopher and believed to be one of the leading philosophers in political perspectives in the 20 th century. Professor Hart is a known and respected legal positivist believing that the law derives power from itself without needing justification rooted in morality. His discussion revolves around a decision in a NAZI trial case in the aftermath of World War II. According to Hart, the law is a system of rules supported by great social pressures for maintaining society. Therefore, laws can only be analyzed based on rules, whereby rules are concerned with what should be done and not what happened. Hart posited that individuals should not be charged for crimes done during the Nazi regime unless steps are taken to invalidate the laws in the first place. It is because, at the time of the crimes, the laws were considered valid and were accompanied by harsh sanctions for any derogation. Punishing individuals for following valid laws that have no link with morality should not be encouraged due to the dangerous precedent of letting those subject to the law determine its validity. Hart starts building his credibility with reliable sources, quoting convincing statistics and facts that see him employ emotional appeals to his audience.
Hart's argument is borne from the complete separation of morality from law, and that law should be followed for its own sake and not because it is linked to abstract concepts like morality. According to Hart, a law is a norm that has been acknowledged by the enforcement entity and given the force of law through specific implementation procedures, and he quotes Austin to demonstrate this, "A law, which actually exists, is a law, though we happen to dislike it, or thought it vary from the text by which we regulate our approbation and disapprobation." The use of the Nazi regime demonstrates just how wide the distinction should be between morality and the law to ensure the continued compliance of society with laws without any shadow of a doubt. Hart argues that legal rights cannot be related to moral rights, even if the methods of deciding cases through logical or deduction may not seem wrong. However, hart insists that deciding cases based on morality and social aims is not necessarily write since laws stand on their own and should be distinguished from morality for a better society. To illustrate why laws should not be curved in meaning with only any natural or moral belief, Hart illustrate the problem of "the core and the penumbra," whereby, by interpreting the core as one that the statute is intended to cover while the penumbra as a skateboard, which is not considered by creators of law. The interpretation of the laws based on natural and common morals will indeed avert absolute justice to be attained in society. Classifying laws under the banners of moral or immoral gives citizens a form of justification to disregard the laws as opposed to blindly adhering to the provisions and leaving room for revolts and revolutions. The main terminology present in his discussion is embodied in this excerpt, "...the need to distinguish, firmly and with the maximum of clarity, law as it is from the law as it ought to be." Finally adding that the fact that a legal norm is granted validity does not imply that the law is morally sound nor should it be a requirement.
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The author is an established professor of jurisprudence with years of experience on the definition of and theoretical foundations of the law, which underlies the ethos of the entire paper. He then develops the logos leaning towards the use of deduction to decide court cases to give his argument a philosophical grounding in the truth but does not dispute the use of morality to achieve the same aim (Grant, 2009). Hart demonstrates the effect of giving individuals the power to decide which laws to follow and not to follow weakens the force of all laws, “...the danger that law and its authority may be dissolved in man’s conception of what law ought to be…” Individuals subject to laws may be biased and as such, allowing them to determine the validity of laws to follow based on a moral standard which is subjective leaves room for external influences ( Lacey, 2008) . It makes more sense to vest this authority in the officials that are responsible for enforcing these laws and implementing them. When applied in the political perspective, laws that are not separated from natural and common morals can be easily manipulated by politicians to fit their interests. Since no mechanism is in place to decide what is right and wrong in the society, it gives room to individuals with influence to manipulate others in considering a certain aspect is moral, hence, curving the laws to curve their motives in with a cover-up of morality. The openness of what is moral within the society creates a bias in the law if the law is not separated from the society's perspective of morality. The case study develops the pathos appeal of the argument that sparked the discussion on morality, and the law involved everyday human situations between a husband and wife including a public official who followed the prescribed procedures of the time.
In the case, the judge was acquitted based on the fact that his actions were in line with a valid law at the time without any malicious intent on his part. At the same time, the wife was convicted of using the laws for her personal gain and was, therefore guilty of unlawfully depriving her husband of his liberty. Given the professor’s long-established positivist legal standpoint, it is no surprise that this is the position he took on the debate promoting absolute obedience to law granted it is accepted as valid by the enforcing regime. It should be noted that in his argument, Hart does not invalidate laws with moral connotations instead saying that as long as a norm is accepted at law, then there is no room for derogation from the provisions of the law.
In conclusion, Hart provides an argument that is logically supported by facts on why the law should be separated from morals in society. Based on the decision in a NAZI trial case in the aftermath of World War II, Hart shows that the societal pressures should not be used to control the law and that individuals should understand what law holds and what moral holds to attain absolute justice. However, despite Hart not disputing the use of morality in deciding cases, he does not support the fact that law should be put in shadows and morality to overtake the major decision of court case.
References
Grant, C. (2009). Review: Positivism and the separation of law and morals, fifty years on. Political Theory, 37 (1), 167-173.
Green, L. (2008). Positivism and the Inseparability of Law and Morals. New York University Law Review . Retrieved February 9, 2020, from https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1136374
Hart, H. L. A. (2017). Positivism and the Separation of Law and Morals. In K. E. Himma (Ed). Law and morality (pp. 63-99). Routledge.
Lacey, N. (2008). Philosophy, political morality, and history: Explaining the enduring resonance of the hart-fuller debate. NYUL, Rev., 83 , 1059.
