'The Rule of Law: “A” Relation Between Law and Morals' by Alani Golanski in (2022) 42(2) Northern Illinois University Law Review comments
H. L. A. Hart begins chapter nine of The Concept of Law by saying that “[t]here are many different types of relation between law and morals and there is nothing which can be profitably singled out for study as the relation between them.”1 He allows that conventional and social group morality, as well as a more rigorously practiced and “enlightened” moral criticism, have both “profoundly influenced” the development of law. Most saliently, legal systems, but also institutions generally, will as a “natural necessity” incorporate a “minimum content of [n]atural [l]aw” in service of the human propensity toward survival.
This minimum content of natural law includes certain substantive prohibitions. Human beings are vulnerable creatures, of bounded capabilities as well as limited altruism. All are tempted, at least sometimes, to pursue their own immediate interests at the expense of others’ welfare. This is “one of the natural facts which makes the step from merely moral to organized, legal forms of control a necessary one.” So law, like morality, will ordinarily proscribe such offenses as murder or unprovoked assault aimed at appropriating one’s neighbor’s assets. Given the “standing danger” that there are always some who will try to exploit and overcome merely moral constraints, “what reason demands is voluntary cooperation in a coercive system.”
These sorts of considerations that draw moral values into a relation with law do not warrant the different conclusion that conformity with morality provides a necessary criterion of the existence or validity of law. Rejection of that conclusion is one of Hart’s main legal positivist premises, his “separation thesis.” Nor can there be a necessary correlation, for Hart, between legal rules and natural-law theory’s ample moral standards, because “the purposes men have for living in society are too conflicting and varying to make possible much extension of the argument” that the legal system’s content necessarily encompasses more than natural law’s minimum content.
Yet, for Hart, the factors that warrant an acknowledgment that legal systems generally must incorporate a minimum content of natural law spill over into his understanding of what he terms “legality.” This concept implicates the manner in which laws come into existence, as well as characteristics of the laws requisite to any legal system’s abilities to effectuate social control. The central claim is that, if the legal system is to fulfill its social control function, and by close analogy abide by legality, the system’s outputs will have to abide by certain formal requirements that bring enacted rules “within the capacity of most to obey.” Hence, the legal rules will have to satisfy certain conditions, such as being intelligible and typically not retrospective.
The notion of legality is intimately related to, and often taken to be synonymous with, the idea of the rule of law. Hart’s project conduced him toward minimizing the perception of any necessary connection between law and morals, and his minimal expression of legality has influenced slim and formal conceptions of the rule of law ideal itself. This is how Jeremy Waldron put it:
I think Hart was inclined to see a preoccupation with legality and the rule of law as a source of confusion in jurisprudence; often one gets the impression that Hart thought that if anyone offered to talk about it, the responsible thing to do was to say something palliative and then shut down the discussion as quickly and firmly as possible. Principles of legality, Hart implied, may be among the principles we should use for the evaluation of law, but their study is not part of the philosophical discipline that tries to tell us what law essentially is.
That is fair enough. But the impulse criticized by Waldron to sever the focus on the concept of law from an evaluation of law and legal systems should not precondition the criteria by which legal institutional action is evaluated. Limiting the rule of law evaluation to an appraisal of whether the system abides by a few, sharply delimited formal conditions is likely in inevitable tension with the general impulse to evaluate law’s workings more deeply. This does not mean that just any sort of evaluation of the legal system counts as a rule of law assessment. Nor, however, does a robust concept of the rule of law as an exercise in political morality impair a “hard” legal positivist concept of law that emphatically excludes moral criteria from the identification of the existence or content of valid, positive laws.
The interrelated questions asked in this Article are: (1) whether the concept of the rule of law is well served by a delimited focus on whether the legal system promulgates laws capable of being obeyed; (2) whether a morally richer view of the rule of law fits the concept’s use and formulation; and (3) whether, even if extending beyond traditional formulations, a rule of law inquiry broader than Hart’s capacity-to-obey test should be seen as conceptual overreach? The answers argued for here aspire toward both releasing the rule of law construct from its formal-equality fetters and accentuating the construct’s potential for improving the moral landscape endured by those for whom legal arrangements reinforce impairment of their capabilities to exercise powers that the legal system otherwise confers or encourages.
