Minimum Content Theory in Positivism

Analytical Legal Positivism and Natural Law have been debated over for a very long time now. Legal positivism recognizes the separation of law and morals i.e. law is independent of morality or any theological system. It is a systematic analysis of legal concept. Natural Law theorists on the other hand rejects this aspect and claims morality to be the basis of the legal system. They claim that whenever there is a conflict between Natural law and Human Law, the former will take an upper hand. Analytical Legal Positivist, H.L.A Hart in 1958 publishes an article in Harvard law Journal, “Positivism and the Separation of Law and Morals” to which Natural Law Theorist Lon L. Fuller responded through his “Positivism and Fidelity to Law”. This debate was further continued with more papers like “Concept of Law” in 20th century by Hart and “Morality of Law” by Fuller in its response. They are the staunch supporters of their respective field. John Austin is considered to be the founder of positivist movement but he is obliged to Jeremy Bentham, whose theory of utilitarianism was the emergence of imperative theory of Austin.

The propounders of natural law believe that all the law must oblige to the principles of natural law framed by Aquinas’s idea of good doing and promoting the common good and promoting moral justice. There are various jurist who has commented on Positivism as a mere command as to what a man does, instead of what it should do. Bodenheimer, who is a legal positivist has claimed that positive law is separate from ethics and identifies justice within the rationality of legal system. Finally, Fuller latches out at Hart that positivism is a strict command imposed on people to be obeyed out of fear of sanction instead of the existing cooperation between the state and the individuals.” The law is seen as simply acting on the citizen, morally or immorally, justly or unjustly, as the case may be”

It is not advisable in the jurisprudential philosophy to put any idea or doctrine in an air tight container, hence a jurist who advocates analytical school cannot be said to be completely biased towards of rigidity of its boundary. Hence there are many stances where it has been made clear by H.L.A. Hart that positivism is not completely separating the idea of morality in the legal system. Hart came up with the idea of primary and secondary rules which he refers to as a union of heart of the legal system. Primary rule is basically justifying the imperative theory of positive law where there are duties imposed on men towards the state and to act in a specific manner. Secondary rule on the other hand states how the primary rules may be recognized, adjudicated and changed. They are not duty imposing rules but more of a power conferring rules as stated by Hart himself. Secondary rules sometimes helps to maintain the flexibility of the primary rules leading it to certain amendments when required. Hence there has to be an ultimate superior authority to govern this and according to Hart court of appeal has the power to do that by deciding if a certain rule is a part of the then legal system or not when all the laws are in question one rule should govern.

Hart doesn’t take the concept of morality seriously, according to him the concept is very closely related and agrees that law should be open to moral scrutiny but not to be made an essential requirement. Hart calls the concept of “precious morality” in Natural Law to which Fuller calls it “fidelity to law” which is beyond law and is to be appealed to in order to get a sound legal system. There should be no impartiality in the application of rules is a moral conduct and is well accepted by Hart and it must be used by the judges without any prejudice, caprice and interest.

There are certain stances in positive law where the principles of fairness, impartiality and formal justice has been used deliberately. Example given, any law is not expected to applied retrospectively on the citizen or the rule of audi alteram partem is an example of extended morality in positivism known as ‘justice in the administration of law’.

Hart holds the fact that any rule can be looked at from external angle and an internal angle. External angle mostly refers to the survey of how the members of the society act within the certain legal system, when that is done a regular reading in the pattern could be done. Where it is not necessary that any law abiding citizen is actually abiding the laws out of its moral conscience to obey or disobey the law. Whether or not there is a moral obligation should be viewed from the internal point of view where it is gauged that the legal system is legitimate or not. If a man is following the traffic rules and standing when the light is red shows his adherence to law which is not because he thinks he is morally obligated to do so.

Hence Hart believes that there is a close connection between law and morals where individual and public authority both use moral language to justify their actions.

“These influences enter into law either abruptly and avowedly through legislation, or silently and piecemeal through the judicial process”. Problem of Penumbra usually refers to the shadowing of the law where the positive law is inadequate in its definition and a harmonious construction is required by the judges, who make the ‘law as it is’ into what ‘law ought to be’ which fails the positivism principle. Hart resolved this issue by defying, ‘what ought to be’, into the contours of the rational legal system and not into morality as claimed by Fuller. To which Hart responds by bringing the ambiguity into the umbrella of practice and observance, even if it is not declared by any sovereign authority.

Hart agrees to the definition of positivism being empirically inaccurate and introduces ‘Adoption of minimum content theory’ there is a certain amount of sacrifice done by the individuals in accordance to the legal rules and protection of their rights as against others implies that in order to coexist and maintain harmony certain amount of moral code has to be followed.

There are certain truisms that Hart believes in:

a. Human beings are vulnerable and can be protected by laws when they are bound by certain duties.

b. All the human beings are relatively equal and intelligent so they have to compromise on their desires to maintain harmony

c. Law and morality both requires us to look beyond us and exist in peace.

d. Concept of limited resource governs our actions.

e. Idea of limited understanding and strength of will is important to any society.

These five truisms mentioned by Hart shows his belief in the morality with the law and it discloses the core of good sense in natural law.

As quoted by Hart, “No ‘positivist’ could deny that these are facts, or that the stability of legal systems depends in part upon such types of correspondence with morals. If this is what Hence the existence of legal system without a tinge of morality will lead it to an unstable system. His stance has been made clear so far that law and morals are connected.

The underlying debate between the analytical and positive school is that Hart denies that morality is an utmost necessity.

He has very well cited two main reason for denying morality as an essential element in legal system.

1. “He believes that we can obtain a better understanding of law in society by developing a philosophical position consistent with the way law actually operates in the real world. In this sense Hart is a descriptivist, not a prescriptivist”.

2. “…What surely is most needed in order to make men clear sighted in confronting the official abuse of power, is that they should preserve the sense that the certification of something as legally valid is not conclusive of the question of obedience, and that, however great the aura of majesty or authority which the official system may have, its demands must in the end be submitted to a moral scrutiny”

He said that it is not right to question the enacted laws on the moral grounds about whether not it should be obeyed. Law is morally relevant and not morally conclusive. Existence of law was to see the practical issues faces by the society than to fulfil the moral obligations.

Once it is enacted it will open to public scrutiny for how good or bad the law is. Hence if any law is enacted which fails the purpose of the law then it must be discarded and there should be various procedural measures to be taken to rectify that and to make sure that both the public authority and individuals follow the basic minimum content morality both in application and its formation.

Adoption of minimum content theory is a meeting point of the long due debate of inclusion and exclusion of morality in law between two scholars as claimed by fuller but Hart concluded by saying that now that they have a common ground the debate will be more in rage.

Hence we have seen certain claims made by the advocates of Legal positive school and by his course of conduct and development of his theory he has certainly established the fact that positivism is not a tightly packed concept which is not open to moral values it’s just that the school advocates strict adherence to understand the structure and the nature of the legal system and its practical application on the society. Deviating from the concept and focussing on the morals, justice and ethics fails the very foundation of the analytical school. Hence, Hart himself has accepted the need of quality morals and its close proximity with the law. So the above statement doesn’t stand any chance to be true. Morality and Justice goes hand in hand. The debate is still continuing amongst various Jurists in 21st century which was continued by Ronald Dworkin, who insists on clear elements of morality in legal system while Joseph Raz who advocates legal Positivism. So, it can be concluded that positivism has morality in various theories and hidden corners just not recognized much while interpreting it.

Bibliography:

Books:

1.V.D. Mahajan, “Jurisprudence and Legal Theory”, 1987, Lucknow, Eastern book company, fifth edn. (Pg 439)

2. R. BEGIN, “NATURAL LAW AND POSITIVE LAW”, 49 (1959).

6. See Austin, A Pleafor Excuses, 57 P.A.S. 15 (1956-57), for a discussion of the distinction between "excuse" and "justification."