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Fuller Natural law - Coggle Diagram

- - - - he seeks he will have to concern himself more closely with a definition of law that will make meaningful the obligation of fidelity to law.
        
        When he speaks of morality he seems generally to have in mind all sorts of extralegal notions about "what ought to be," regardless of their sources, pretensions, or intrinsic worth.
        
        Toward the end of the essay, however, Professor Hart's argument takes a turn that seems to depart from the prevailing tenor of his thought. This consists in reminding us that there is such a thing as an immoral morality and that there are many standards of "what ought to be" that can hardly be called moral.4 Let us grant, he says, that the judge may properly and inevitably legislate in the penumbra of a legal enactment, and that this legislation (in default of any other standard) must be guided by the judge's notions of what ought to be.
    - - Third, let us suppose a judge bent on realizing through his decisions an objective that most ordinary citizens would regard as mistaken or evil. Would such a judge be likely to suspend the letter of the statute by openly invoking a "higher law"? Or would he be more likely to take refuge behind the maxim that "law is law" and explain his decision in such a way that it would appear to be demanded by the law itself?
        
        I do not think it is unfair to the positivistic philosophy to say that it never gives any coherent meaning to the moral obligation of fidelity to law. This obligation seems to be conceived as sui generis, wholly unrelated to any of the ordinary, extralegal ends of human life. The fundamental postulate of positivism - that law must be strictly severed from morality -seems to deny the possibility of any bridge between the obligation to obey law and other moral obligations.
        
        I do not think it is unfair to the positivistic philosophy to say that it never gives any coherent meaning to the moral obligation of fidelity to law. This obligation seems to be conceived as sui generis, wholly unrelated to any of the ordinary, extralegal ends of human life. The fundamental postulate of positivism - that law must be strictly severed from morality -seems to deny the possibility of any bridge between the obligation to obey law and other moral obligations.
      - But suppose we were both transported to a country where our beliefs were anathemas, and where we, in turn, regarded the prevailing morality as thoroughly evil. No doubt in this situation we would have reason to fear that the law might be covertly manipulated to our disadvantage; I doubt if either of us would be apprehensive that its injunctions would be set aside by an appeal to a morality higher than law. If we felt that the law itself was our safest refuge, would it not be because even in the most perverted regimes there is a certain hesitancy about writing cruelties, intolerances, and inhumanities into law? And is it not clear that this hesitancy itself derives, not from a separation of law and morals, but precisely from an identification of law with those demands of morality that are the most urgent and the most obv
    - - Yet how are we to distinguish between those basic rules that owe their validity to acceptance, and those which are properly rules of law, valid even when men generally consider them to be evil or ill-advised? In other words, how are we to define the words "fundamental" and "essential" in Professor Hart's own formulation: "certain fundamental accepted rules specifying the essential lawmaking procedure"?
        
        In any legal system there must be some fundamental rule that points unambiguously to the source from which laws must come in order to be laws. This rule Kelsen called "the basic norm." In his own words, The basic norm is not valid because it has been created in a certain way, but its validity is assumed by virtue of its content. It is valid, then, like a norm of natural law . . . The idea of a pure positive law, like that of natural law, has its limitations.".
        
        ishment if he does not mend his ways. There is a twofold sense in which it is true that law cannot be built on law. First of all, the authority to make law must be supported by moral attitudes that accord to it the competency it claims. Here we are dealing with a morality external to law, which makes law possible. But this alone is not enough. We may stipulate that in our monarchy the accepted "basic norm" designates the monarch himself as the only possible source of law. We still cannot have law until our monarch is ready to accept the internal morality of law itself.
        
        ternal morality of law itself. In the life of a nation these external and internal moralities of law reciprocally influence one another; a deterioration of the one will almost inevitably produce a deterioration in the other. So closely related are they that when the anthropologist Lowie speaks of "the generally accepted ethical postulates underlying our ...legal institutions as their ultimate sanction and guaranteeing their smooth functioning," "3he may be presumed to have both of them in mind. What I have called "the internal morality of law" seems to be almost completely neglected by Professor Hart.
        
        It is his neglect to analyze the demands of a morality of order that leads him throughout his essay to treat law as a datum projecting itself into human experience and not as an object of human striving.
        
        legal system, is always a matter of degree. When we recognize this simple fact of everyday legal experience, it becomes impossible to dismiss the problems presented by the Nazi regime with a simple assertion: "Under the Nazis there was law, even if it was bad law." We have instead to inquire how much of a legal system survived the general debasement and perversion of all forms of social order that occurred under the Nazi rule, and what moral implications this mutilated system had for the conscientious citizen forced to live under it.
        
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