Is there a moral qualification for social rules to become a law?

By Huiyeon Eim, Philosophy Editor, University of Southern California

she/her/hers

huiyeone@usc.edu

After the Nazi regime, the German court pronounced a wife who accused of her husband for the defamation of the Nazi party guilty of the violation of an 1871 law against “unlawfully depriving a person of liberty.” However, if the Nazi law prohibiting the defamation of Hitler were a valid law, the court would not be serving its legal duty and the prosecution would be an invalid decision. Since this is contrary to the truth, the Nazi law prohibiting the defamation of Hitler was not a valid law, which makes Hart’s theory of law, which states the law as a set of social rules that are accepted by the Hartian Rule of Recognition, false.

The most important philosophical issue is if there is a certain moral standard or condition that social rules have to pass in order for them to be considered as law. Fuller believes that there is a moral standard for rules to be law. On the other hand, Hart thinks social rules do not have to meet certain moral standards to be law.

This philosophical issue can be best resolved by understanding the genesis of law and its function based on Hart’s theory of law. The fundamental assumption of Hart’s concept is that law is a social object. That is, laws exist in a society to serve the members of the community. To understand the social function of law, consider the following scenario. A woman is living on a small island by herself with no connection to other civilizations. She made a set of rules to be followed on the island which she considered moral standards in the making. Since there is a set of rules, can the rules be considered as law? The answer would be no because the rules do not meet the basic doctrine of the rule of recognition which presupposes a society. By making the rules, the woman merely “made it a rule,” and she is not bound by them.

Now, consider a different scenario where a handful of people landed on an empty island due to a plane crash. By the majority rule, they decided upon rules what Hart considers primary and secondary rules. The rule of recognition is followed here as the people who are subject to the rules accept them as a system of making rules. This qualifies the rules of the island to be law. In the making of the law on the island, the primary goal was to create a set of rules that people commonly agree to follow for the sake of the community, not morality. In the law’s pursuit of communal agreement, morality could have played a role but it was not required for the rules to be law. Thus, social rules do not need morality to be valid law, as the law’s social function comes before its moral-check function.

Going back to the case of WWII, because the law is a social object, the Nazi regime’s legal system was not invalid. However, this does not mean that certain laws that do not qualify for moral standards are justified. They can be criticized for being immoral, but their immorality does not disqualify them to be law.

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Selected Bibliography

Hart, H. L. A. (Herbert Lionel Adolphus) et al. The Concept of Law . 3rd ed. Oxford: Oxford University Press, 2012. Print.

Fuller, Lon L. “Positivism and Fidelity to Law: A Reply to Professor Hart.” Harvard Law Review 71.4 (1958): 630–672. Web.