Hart, Radbruch and the Necessary Connection Between Law and Morals
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Ó Springer Nature B.V. 2020
J. G. MOORE*
HART, RADBRUCH AND THE NECESSARY CONNECTION BETWEEN LAW AND MORALS
(Accepted 29 February 2020) ABSTRACT. Legal positivism maintains a distinction between law as it is and law as it ought to be. In other words, for positivists, a law can be legally valid even if it is immoral. H. L. A. Hart hoped to defend legal positivism against natural law. This paper analyses Hart’s criticism of Gustav Radbruch, a natural lawyer, before suggesting that Hart’s account of legal positivism gives rise to a logical problem. It is concluded that this problem leaves logical space for a theory of natural law based on moral authority rather than legal validity. I. INTRODUCTION
Legal positivism maintains a distinction between law as it is and law as it ought to be.1 In other words, for positivists, a law can be legally valid even if it is immoral. H. L. A. Hart hoped to defend this distinction.2 In attempting to do so, he was critical of Gustav Radbruch, who claimed that the laws of the Nazis were legally invalid,3 because they were morally evil.4 The purpose of this paper is to analyse Hart’s criticism of Radbruch, and to contrast the two scholars’ approaches to morally evil laws. In attempting to achieve this purpose, the body of this paper has two parts. First, Hart’s criticism of Radbruch is considered. Second, it is argued that Hart’s approach contains a logical problem that may have relevance for the debate between positivists and 1 Simon Blackburn, Oxford Dictionary of Philosophy (Oxford: Oxford University Press, 1994), p. 213; H.L.A. Hart, ‘Positivism and the Separation of Law and Morals’, Harvard Law Review 71(4) (1958): pp. 593–629. 2 Hart, ‘Positivism and the Separation of Law and Morals’, p. 625. 3 That is, they were not actually laws. 4 Gustav Radbruch, ‘Gesetzliches Unrecht und übergesetzliches Rech’, Süddeutsche Juristen–Zeitung 1(5) (1946): pp. 105–108.
J. G. MOORE
natural lawyers. It is concluded that this problem leaves logical space for a theory of natural law based on moral authority rather than legal validity. II. ARGUMENT
A. Hart’s Criticism of Radbruch Hart’s purpose was to defend the distinction between law as it is and law as it ought to be.5 In attempting to achieve his purpose, he considered a ‘passionate appeal’ based on ‘a terrible experience’.6 The appeal was Radbruch’s, and the experience was of Germans under the laws of the Nazis. Prior to the Nazis coming to power, Radbruch had himself been a positivist.7 Following his conversion, however, he developed the following formula: Preference is given to the positive law, duly enacted and secured by state power as it is, even when it is unjust and fails to benefit the people, unless its conflict with justice reaches so intolerable a level that the statute becomes, in effect, ‘false law’ and must therefore yield to justice. It is impossible to draw a sharper line between cases of statutory non-law and statutes that are valid despite their flaws. One line of distinction, however, can be drawn with utmost clarity: Whe
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