Laws and Morals, by H.L.A. Hart
In general men do desire to live, natural law and the teleology of survival, biological facts
H.L.A. Hart wrote:
Chapter 9
LAWS AND MORALS
NATURAL LAW AND LEGAL POSITIVISM
[It] cannot seriously be disputed that the development of law, at all times and places, has … been profoundly influenced both by the conventional morality and ideals of particular social groups, and also by forms of enlightened moral criticism urged by individuals, whose moral horizon has transcended the morality currently accepted. But it is possible to take this truth illicitly, as a warrant for a different proposition: namely that a legal system must exhibit some specific conformity with morality or justice, or must rest on a widely diffused conviction that there is a moral obligation to obey it. Again, though this proposition may, in some sense, be true, it does not follow from it that the criteria of legal validity of particular laws used in a legal system must include, tacitly if not explicitly, a reference to morality or justice.
… [We] shall discuss a question which may still be illuminatingly described as the issue between Natural Law and Legal Positivism, though each of these titles has come to be used for a range of different theses about law and morals. Here we shall take Legal Positivism to mean the simple contention that it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality … But because those who have taken this view have either been silent or differed very much concerning the nature of morality, it is necessary to consider two different forms in which Legal Positivism has been rejected. One of these is … in the classical theories of Natural Law: that there are principles of human conduct, awaiting discovery by human reason, with which man-made law must conform if it is to be valid. The other takes a … less rationalist view of morality … a different account of [how] legal validity is connected with moral value. …
… [Many] modern critics have thought that the claim that [natural] laws of proper conduct may be discovered by human reason rested on a simple ambiguity of the word 'law', and that when this ambiguity was exposed Natural Law received its deathblow. It is in this way that John Stuart Mill dealt with Montesquieu, who in the first chapter of the Esprit des Lois naively inquires why it is that, while inanimate things such as the stars and also animals obey 'the law of their nature', man does not do so but falls into sin. This, Mill thought, revealed the perennial confusion between laws which formulate the course or regularities of nature, and laws which require men to behave in certain ways. The former, which can be discovered by observation and reasoning, may be called 'descriptive' and it is for the scientist thus to discover them; the latter cannot be so established, for they are not statements or descriptions of facts, but are 'prescriptions' or demands that men shall behave in certain ways. The answer therefore to Montesquieu's question is simple: prescriptive laws may be broken and yet remain laws, because that merely means that human beings do not do what they are told to do; but it is meaningless to say of the laws of nature, discovered by science, either that they can or cannot be broken. If the stars behave in ways contrary to the scientific laws which purport to describe their regular movements, these are not broken but they lose their title to be called 'laws' and must be reformulated.
To these differences in the sense of 'law', there correspond systematic differences in the associated vocabulary of words like 'must', 'bound to', 'ought', and 'should'. So, on this view, belief in Natural Law is reducible to a very simple fallacy … It is as if the believer had failed to perceive the very different meaning of such words in 'You are bound to report for military service' and 'It is bound to freeze if the wind goes round to the north'. Critics like Bentham and Mill, who most fiercely attacked Natural Law, often attributed their opponents' confusion between these distinct senses of law, to the survival of the belief that the observed regularities of nature were prescribed or decreed by a Divine Governor of the Universe. On such a theocratic view, the only difference between the law of gravity and the Ten Commandments-God's law for Man was, as Blackstone asserted, the relatively minor one that men … were endowed with reason and free will; and so unlike things, could discover and disobey the divine prescriptions.
Natural Law has, however, not always been associated with belief in a Divine Governor or Lawgiver of the universe… [The] relevant sense of the word 'natural', which enters into Natural Law, and its general outlook minimizing the difference … between prescriptive and descriptive laws, have their roots in Greek thought which was, for this purpose, quite secular. Indeed, the continued reassertion of some form of Natural Law doctrine is due in part to the fact that its appeal is independent of both divine and human authority, and to the fact that … it contains certain elementary truths of importance for the understanding of both morality and law. These we shall endeavour to disentangle from their metaphysical setting and restate here in simpler terms. …
… Some [modern] human beings have discovered and formulated as laws of nature. To understand nature is to bring to bear knowledge of these regularities. The structure of great scientific theories does not of course mirror in any simple way observable fact, events, or changes; often, indeed, a great part of such theories consists of abstract mathematical formulations with no direct counterpart in observable fact. Their connection with observable events and changes lies in the fact that, from these abstract formulations, generalizations may be deduced which do refer to, and may be confirmed or falsified by, observable events. A scientific theory's claim to forward our understanding of nature is therefore, in the last resort, dependent on its power to predict what will occur, which is based on generalizations of what regularly occurs. The law of gravity and the second law of thermodynamics are, for modern thought, laws of nature and more than mere mathematical constructions in virtue of the information they yield concerning the regularities of observable phenomena.
The doctrine of Natural Law is part of an older conception of nature in which the observable world is not merely a scene of such regularities, and knowledge of nature is not merely a knowledge of them. Instead, on this older outlook every nameable kind of existing thing, human, animate, and inanimate, is conceived not only as tending to maintain itself in existence but as proceeding towards a definite optimum state which is the specific good—or the end [‘telos’ given in Greek lettering] appropriate for it.
This is the teleological conception of nature as containing in itself levels of excellence which things realize. The stages by which a thing of any given kind progresses to its specific or proper end are regular, and may be formulated in generalizations describing the thing's characteristic mode of change, or action, or development; to that extent the teleological view of nature overlaps with modern thought. The difference is that on the teleological view, the events regularly befalling things are not thought of merely as occurring regularly, and the questions whether they do occur regularly and whether they should occur or whether it is good that they occur are not regarded as separate questions. On the contrary (except for some rare monstrosities ascribed to 'chance'), what generally occurs can both be explained and evaluated as good or what ought to occur, by exhibiting it as a step towards the proper end or goal of the thing concerned. The laws of a thing's development therefore should show both how it should and how it does regularly behave or change.
This mode of thinking about nature seems strange when stated abstractly. It may appear less fantastic if we recall some of the ways in which even now we refer at least to living things, for a teleological view is still reflected in common ways of describing their development. Thus in the case of an acorn, growth into an oak is something which is not only regularly achieved by acorns, but is distinguished unlike its decay (which is also regular) as an optimum state of maturity in the light of which the intermediate stages are both explained and judged as good or bad, and the 'functions' of its various parts and structural changes identified. The normal growth of leaves is required if it is to obtain the moisture necessary for 'full' or 'proper' development, and it is the 'function' of leaves to supply this. Hence we think and speak of this growth as what 'ought naturally to occur'. In the case of the action or movements of inanimate things, such ways of talking seem much less plausible unless they are artefacts designed by human beings for a purpose. The notion that a stone on falling to the ground is realizing some appropriate 'end' or returning to its 'proper place', like a horse galloping home to a stable, is now somewhat comic.
Indeed, one of the difficulties in understanding a teleological view of nature is that just as it minimized the differences between statements of what regularly happens and statements of what ought to happen, so too it minimizes the difference, so important in modern thought, between human beings with a purpose of their own which they consciously strive to realize and other living or inanimate things. For in the teleological view of the world, man, like other things, is thought of as tending towards a specific optimum state or end which is set for him and the fact, that he, unlike other things, may do this consciously, is not conceived as a radical difference between him and the rest of nature. This specific human end or good is in part, like that of other living things, a condition of biological maturity and developed physical powers; but it also includes, as its distinctively human element, a development and excellence of mind and character manifested in thought and conduct. Unlike other things, man is able by reasoning and reflection to discover what the attainment of this excellence of mind and character involves and to desire it. Yet even so, on this teleological view, this optimum state is not man's good or end because he desires it; rather he desires it because it is already his natural end.
Again, much of this teleological point of view survives in some of the ways in which we think and speak of human beings. It is latent in our identification of certain things as human needs which it is good to satisfy and of certain things done to or suffered by human beings as harm or injury. Thus, though it is true that some men may refuse to eat or rest because they wish to die, we think of eating and resting as something more than things which men regularly do or just happen to desire. Food and rest are human needs, even if some refuse them when they are needed. Hence we say not only that it is natural for all men to eat and sleep, but that all men ought to eat and rest sometimes, or that it is naturally good to do these things. The force of the word 'naturally', in such judgments of human conduct, is to differentiate them both from judgments which reflect mere conventions or human prescriptions ('You ought to take off your hat'), the content of which cannot be discovered by thought or reflection, and also from judgments which merely indicate what is required for achieving some particular objective, which at a given time one man may happen to have and another may not. The same outlook is present in our conception of the functions of bodily organs and the line we draw between these and mere causal properties. We say it is the function of the heart to circulate the blood, but not that it is the function of a cancerous growth to cause death.
These crude examples designed to illustrate teleological elements still alive in ordinary thought about human action, are drawn from the lowly sphere of biological fact which man shares with other animals. It will be rightly observed that what makes sense of this mode of thought and expression is something entirely obvious: it is the tacit assumption that the proper end of human activity is survival, and this rests on the simple contingent fact that most men most of the time wish to continue in existence. The actions which we speak of as those which are naturally good to do, are those which are required for survival; the notions of a human need, of harm, and of the function of bodily organs or changes rests on the same simple fact.
Certainly if we stop here, we shall have only a very attenuated version of Natural Law: for the classical exponents of this outlook conceived of survival (perseverare in esse suo) as merely the lowest stratum in a much more complex and far more debatable concept of the human end or good for man. Aristotle included in it the disinterested cultivation of the human intellect, and Aquinas the knowledge of God, and both these represent values which may be and have been challenged. Yet other thinkers, Hobbes and Hume among them, have been willing to lower their sights: they have seen in the modest aim of survival the central indisputable element which gives empirical good sense to the terminology of Natural Law.
‘Human nature cannot by any means subsist without the association of individuals: and that association never could have place were no regard paid to the laws of equity and justice’ [footnote to Hume, Treatise of Human Nature, III. ii, ‘Of Justice and Injustice’].
This simple thought has in fact very much to do with the characteristics of both law and morals, and it can be disentangled from more disputable parts of the general teleological outlook in which the end or good for man appears as a specific way of life about which, in fact, men may profoundly disagree. Moreover, we can, in referring to survival, discard, as too metaphysical for modern minds, the notion that this is something antecedently fixed which men necessarily desire because it is their proper goal or end. Instead we may hold it to be a mere contingent fact which could be otherwise, that in general men do desire to live, and that we may mean nothing more by calling survival a human goal or end than that men do desire it. Yet even if we think of it in this common-sense way, survival has still a special status in relation to human conduct and in our thought about it, which parallels the prominence and the necessity ascribed to it in the orthodox formulations of Natural Law. For it is not merely that an overwhelming majority of men do wish to live, even at the cost of hideous misery, but that this is reflected in whole structures of our thought and language, in terms of which we describe the world and each other. We could not subtract the general wish to live and leave intact concepts like danger and safety, harm and benefit, need and function, disease and cure; for these are ways of simultaneously describing and appraising things by reference to the contribution they make to survival which is accepted as an aim.
There are, however, simpler, less philosophical, considerations than these which show acceptance of survival as an aim to be necessary, in a sense more directly relevant to the discussion of human law and morals. We are committed to it as something presupposed by the terms of the discussion; for our concern is with social arrangements for continued existence … We wish to know whether, among these social arrangements, there are some which may illuminatingly be ranked as natural laws discoverable by reason, and what their relation is to human law and morality. To raise this or any other question concerning how men should live together, we must assume that their aim, generally speaking, is to live.
From this point the argument is a simple one. Reflection on some very obvious generalizations—indeed truisms—concerning human nature and the world in which men live, show that as long as these hold good, there are certain rules of conduct which any social organization must contain if it is to be viable. Such rules do in fact constitute a common element in the law and conventional morality of all societies which have progressed to the point where these are distinguished as different forms of social control. With them are found, both in law and morals, much that is peculiar to a particular society and much that may seem arbitrary or a mere matter of choice. Such universally recognized principles of conduct which have a basis in elementary truths concerning human beings, their natural environment, and aims, may be considered the minimum content of Natural Law, in contrast with the more grandiose and more challengeable constructions which have often been proffered under that name. In the next section we shall consider, in the form of five truisms, the salient characteristics of human nature upon which this modest but important minimum rests.
THE MINIMUM CONTENT OF NATURAL LAW
In considering the simple truisms which we set forth here, and their connection with law and morals, it is important to observe that in each case the facts mentioned afford a reason why, given survival as an aim, law and morals should include a specific content. The general form of the argument is simply that without such a content laws and morals could not forward the minimum purpose of survival which men have in associating with each other. In the absence of this content men, as they are, would have no reason for obeying voluntarily any rules; and without a minimum of co-operation given voluntarily by those who find that it is in their interest to submit to and maintain the rules, coercion of others who would not voluntarily conform would be impossible. It is important to stress the distinctively rational connection between natural facts and the content of legal and moral rules in this approach, because it is both possible and important to inquire into quite different forms of connection between natural facts and legal or moral rules.
Thus, the still young sciences of psychology and sociology may discover or may even have discovered that, unless certain physical, psychological, or economic conditions are satisfied, e.g. unless young children are fed and nurtured in certain ways within the family, no system of laws or code of morals can be established, or that only those laws can function successfully which conform to a certain type. Connections of this sort between natural conditions and systems of rules are not mediated by reasons; for they do not relate the existence of certain rules to the conscious aims or purpose of those whose rules they are. Being fed in infancy in a certain way may well be shown to be a necessary condition or even a cause of a population developing or maintaining a moral or legal code, but it is not a reason for their doing so. Such causal connections do not of course conflict with the connections which rest on purposes or conscious aims; they may indeed be considered more important or fundamental than the latter, since they may actually explain why human beings have those conscious aims or purposes which Natural Law takes as its starting-points. Causal explanations of this type do not rest on truisms nor are they mediated by conscious aims or purposes: they are for sociology or psychology like other sciences to establish by the methods of generalization and theory, resting on observation and, where possible, on experiment. Such connections therefore are of a different kind from those which relate the content of certain legal and moral rules to the facts stated in the following truisms.
(1) Human vulnerability.
The common requirements of law and morality consist for the most part not of active services to be rendered but of forbearances, which are usually formulated in negative form as prohibitions. Of these the most important for social life are those that restrict the use of violence in killing or inflicting bodily harm. The basic character of such rules may be brought out in a question: If there were not these rules what point could there be for beings such as ourselves in having rules of any other kind? The force of this rhetorical question rests on the fact that men are both occasionally prone to, and normally vulnerable to, bodily attack. Yet though this is a truism it is not a necessary truth; for things might have been, and might one day be, otherwise. There are species of animals whose physical structure (including exoskeletons or a carapace) renders them virtually immune from attack by other members of their species and animals who have no organs enabling them to attack. If men were to lose their vulnerability to each other there would vanish one obvious reason for the most characteristic provision of law and morals: Thou shalt not kill.
(2) Approximate equality.
Men differ from each other in physical strength, agility, and even more in intellectual capacity. None the less it is a fact of quite major importance for the understanding of different forms of law and morality, that no individual is so much more powerful than others, that he is able, without cooperation, to dominate or subdue them for more than a short period. … This fact of approximate equality, more than any other, makes obvious the necessity for a system of mutual forbearance and compromise which is the base of both legal and moral obligation. Social life with its rules requiring such forbearances is irksome at times; but it is at any rate less nasty, less brutish, and less short than unrestrained aggression for beings thus approximately equal. It is, of course, entirely consistent with this and an equal truism that when such a system of forbearance is established there will always be some who will wish to exploit it, by simultaneously living within its shelter and breaking its restrictions. This, indeed is … one of the natural facts which makes the step from merely moral to organized, legal forms of control a necessary one. …
(3) Limited altruism.
Men are not devils dominated by a wish to exterminate each other, and the demonstration that, given only the modest aim of survival, the basic rules of law and morals are necessities, must not be identified with the false view that men are predominantly selfish and have no disinterested interest in the survival and welfare of their fellows. But if men are not devils, neither are they angels; and the fact that they are a mean between these two extremes is something which makes a system of mutual forbearances both necessary and possible. With angels, never tempted to harm others, rules requiring forbearances would not be necessary. With devils prepared to destroy, reckless of the cost to themselves, they would be impossible. As things are, human altruism is limited in range and intermittent, and the tendencies to aggression are frequent enough to be fatal to social life if not controlled.
(4) Limited resources.
It is a merely contingent fact that human beings need food, clothes, and shelter; that these do not exist at hand in limitless abundance; but are scarce, have to be grown or won from nature, or have to be constructed by human toil. These facts alone make indispensable some minimal form of the institution of property … and the distinctive kind of rule which requires respect for it. The simplest forms of property are to be seen in rules excluding persons generally other than the 'owner' from entry on, or the use of land, or from taking or using material things. If crops are to grow, land must be secure from indiscriminate entry, and food must, in the intervals between its growth or capture and consumption, be secure from being taken by others. At all times and places life itself depends on these minimal forbearances.
The rules which we have so far discussed are static rules, in the sense that the obligations they impose and the incidence of these obligations are not variable by individuals. But the division of labour, which all but the smallest groups must develop to obtain adequate supplies, brings with it the need for rules which are dynamic in the sense that they enable individuals to create obligations and to vary their incidence. Among these are rules enabling men to transfer, exchange, or sell their products; for these transactions involve the capacity to alter the incidence of those initial rights and obligations which define the simplest form of property. The same inescapable division of labour, and perennial need for co-operation, are also factors which make other forms of dynamic or obligation-creating rule necessary in social life. These secure the recognition of promises as a source of obligation. By this device individuals are enabled by words, spoken or written, to make themselves liable to blame or punishment for failure to act in certain stipulated ways. Where altruism is not unlimited, a standing procedure providing for such self-binding operations is required in order to create a minimum form of confidence in the future behaviour of others, and to ensure the predictability necessary for co-operation. This is most obviously needed where what is to be exchanged or jointly planned are mutual services, or wherever goods which are to be exchanged or sold are not simultaneously or immediately available.
(5) Limited understanding and strength of will.
The facts that make rules respecting persons, property, and promises necessary in social life are simple and their mutual benefits are obvious. Most men are capable of seeing them and of sacrificing the immediate short-term interests which conformity to such rules demands. They may indeed obey, from a variety of motives: some from prudential calculation that the sacrifices are worth the gains, some from a disinterested interest in the welfare of others, and some because they look upon the rules as worthy of respect in themselves and find their ideals in devotion to them. On the other hand, neither understanding of long-term interest, nor the strength or goodness of will, upon which the efficacy of these different motives towards obedience depends, are shared by all men alike. All are tempted at times to prefer their own immediate interests and, in the absence of a special organization for their detection and punishment, many would succumb to the temptation. No doubt the advantages of mutual forbearance are so palpable that the number and strength of those who would co-operate voluntarily in a coercive system will normally be greater than any likely combination of malefactors. Yet, except in very small closely-knit societies, submission to the system of restraints would be folly if there were no organization for the coercion of those who would then try to obtain the advantages of the system without submitting to its obligations. 'Sanctions' are therefore required not as the normal motive for obedience, but as a guarantee that those who would voluntarily obey shall not be sacrificed to those who would not. To obey, without this, would be to risk going to the wall. Given this standing danger, what reason demands is voluntary co-operation in a coercive system.
It is to be observed that the same natural fact of approximate equality between men is of crucial importance in the efficacy of organized sanctions. If some men were vastly more powerful than others, and so not dependent on their forbearance, the strength of the malefactors might exceed that of the supporters of law and order. Given such inequalities, the use of sanctions could not be successful and would involve dangers at least as great as those which they were designed to suppress. In these circumstances instead of social life being based on a system of mutual forbearances, with force used only intermittently against a minority of malefactors, the only viable system would be one in which the weak submitted to the strong on the best terms they could make and lived under their 'protection'. This, because of the scarcity of resources, would lead to a number of conflicting power centres, each grouped round its 'strong man': these might intermittently war with each other, though the natural sanction, never negligible, of the risk of defeat might ensure an uneasy peace. Rules of a sort might then be accepted for the regulation of issues over which the 'powers' were unwilling to fight. Again we need not think in fanciful terms of pygmies and giants in order to understand the simple logistics of approximate equality and its importance for law. …
[conclusions to Chapter 9]
… The simple truisms we have discussed not only disclose the core of good sense in the doctrine of Natural Law. They are of vital importance for the understanding of law and morals, and they explain why the definition of the basic forms of these in purely formal terms, without reference to any specific content or social needs, has proved so inadequate. Perhaps the major benefit to jurisprudence from this outlook is the escape it affords from certain misleading dichotomies which often obscure the discussion of the characteristics of law. Thus, for example, the traditional question whether every legal system must provide for sanctions can be presented in a fresh and clearer light, when we command the view of things presented by this simple version of Natural Law. We shall no longer have to choose between two unsuitable alternatives which are often taken as exhaustive: on the one hand, that of saying that this is required by 'the' meaning of the words 'law' or 'legal system', and on the other, that of saying that it is 'just a fact' that most legal systems do provide for sanctions. Neither of these alternatives is satisfactory. There are no settled principles forbidding the use of the word 'law' of systems where there are no centrally organized sanctions …
… On the other hand, we do need to distinguish the place that sanctions must have within a municipal system, if it is to serve the minimum purposes of beings constituted as men are. We can say, given the setting of natural facts and aims, which make sanctions both possible and necessary [even] in a municipal [sub-] system, that this is a natural necessity; and some such phrase is needed also to convey the status of the minimum forms of protection for persons, property, and promises which are similarly indispensable features [even] of municipal law. It is in this form that we should reply to the positivist thesis that 'law may have any content'. For it is a truth of some importance that for the adequate description not only of law but of many other social institutions, a place must be reserved … for a third category of statements: those the truth of which is contingent on human beings and the world they live in retaining the salient characteristics which they have.
The Source:
H.L.A.Hart, The Concept of Law, edited by Penelope A. Bulloch and Joseph Raz, Clarendon Press Oxford 1961, 1994
Evolutions of social order from the earliest humans to the present day and future machine age.