Home -> Law Blog Directory -> Academic Blogs -> Legal Theory Blog

Academic

: Legal Theory Blog

Gardner on Simmonds on Hart on Law & Morality

By Lawrence Solum

John Gardner (University of Oxford - Faculty of Law) has posted Hart on Legality, Justice, and Morality on SSRN. Here is the abstract:

In the comment on Nigel Simmonds' book Law as a Moral Ideal, I take issue with Simmonds' interpretation of the work of H.L.A. Hart. I attempt to provide textual support for the view that Hart did find necessary connections - many of them - between law and morality. The bulk of the comment is devoted to exploring just one indirect necessary connection between law and morality that Hart may have noticed in The Concept of Law, viz. the connection from law to legality, from legality to justice, and from justice to morality. I find Hart surprisingly ambivalent about the last link in this chain, but do not find in this ambivalence any solace for Simmonds.

And from the paper:

One reason why Hart may have thought it a conceptual necessity across the board is because of his well-known view that ?we have, in the bare notion of applying a general rule of law, the germ at least of justice.?35 Why does he hold this view? Because that bare notion, to his mind, already entails ?the precept ?Treat like cases alike?,? which, to his mind, belongs distinctively to ?the structure of the idea of justice.?36 So for Hart ?[t]he connection between this aspect of justice and the very notion of proceeding by rule is obviously very close.?37 If this connection between law and justice exists it is a conceptual one, and one that short- circuits the more convoluted conceptual connection via the ideal of legality that we have been exploring. As we now know, the more direct connection does not exist. Hart?s argument to the effect that it does has been exposed as multiply fallacious elsewhere.38 Hart?s attachment to the idea39 would, however, help to explain his thought that the principles of the rule of law are all of them principles of justice. For they are all principles governing what he calls ?the administration of the law? and for Hart this administration necesssarily ? by virtue of the mere fact that laws are rules ? invites an evaluation in terms of justice. This shows that in some ways, contrary to the tenor of Simmonds? discussion, Hart took the conceptual connections among law, legality and justice to be more tightly woven than they really are. As well as holding (rightly) that law is connected to justice via its connection to legality, he held (wrongly) that law is connected to legality via an independent connection to justice.

Highly recommended.

Full post as published by Legal Theory Blog on May 17, 2010 (boomark / email).