INTRODUCTION

Natural Law regards that all laws can be rationally derived from basic
moral principles either religious or secular. This theory of law was the dominant
juristic force in the ancient world and also in Judaic, Christian and Muslim
theology. The rise of the nation state and the influence of modern analytical
philosophy posed serious problems for the uncertainty inherent in Natural Law as
it deemed all human laws not in consonance with divine law as invalid. Analytical
Legal Positivism shook the very basis on which much of Natural Law rested.
David Hume, the most prominent philosopher of the Scottish Enlightenment,
broke Natural laws methodological spine by showing via Aristotelian syllogism
the futility of deriving an ought from an is and what G.E. Moore terms as the
naturalistic fallacy. Further, the morally relativistic positivists argue that there is
no universally agreed list of morals or natural rights.
The intrinsic logical weaknesses of natural law coupled with the need for
certainty and moral clarity in the modern nation state led to the rise of positivism
as the dominant legal theory in the 19th and 20th Centuries.
However, the first half of the 20th Century also saw the two most
devastating wars in the history of mankind and the need arose to reevaluate the
a moralistic basis of legal positivism. The aftermath of these wars led to the
Universal Declaration of Human Rights and the concept of the inviolability of
human life came to the fore. Considering these developments, there was a
vacuum between these two opposing schools of jurisprudence and the need for
their respective advantageous precepts to be synthesized into one coherent legal
theory of general applicability. The man who endeavored to take up this vast task
was the Oxford jurist H. L. A. Hart.
H.L.A. HART
Herbert Lionel Adolphus Hart was a British philosopher who was a
professor of jurisprudence at the University of Oxford. He is considered the
"world's foremost legal philosopher in the twentieth century". One of his most
famous works is The Concept of Law (1961).
The Concept of Law (1961)
Hart's most famous work is The Concept of Law, first published in 1961,
and with a second edition (including a new postscript) published posthumously in
1994. It is an analysis of the relation between law, coercion, and morality, and it
is an attempt to clarify the question of whether all laws may be properly
conceptualized as coercive orders or as moral commands. Hart says that there is
no logically necessary connection between law and coercion or between law and
morality.

LAWS AND MORALS
When laying down the framework for the basic debate between legal
positivism and natural law, Hart explains that it cannot be seriously disputed that
the development of law, at all times and places, has in fact 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. However,
it does not follow that the criteria of legal validity of particular laws used in the
legal system must exhibit some specific conformity with morality or justice.

Natural Law and Legal Positivism
Legal positivism, to mean the simple contention that is in no sense a
necessary truth that laws reproduce or satisfy certain demands of morality,
though in fact they have often done so.
The classical theory of natural law states that there are certain principles
of human conduct, awaiting discovery by human reason, with which man-made
law must conform if it is to be valid.
Hart defines legal positivism as the theory that there is no logically
necessary connection between law and morality. However, he describes his own
viewpoint as a soft positivism, in that he admits that rules of recognition may
consider the compatibility or incompatibility of a rule with moral values as a
criterion of the rules validity.
Harts argument is simply a response to the classical natural law theorists
who believe that there is a specific system of morality, consisting of certain
principles, discoverable by reason, that any law must conform to if it is to have
the status of law.
Teleological Conception of Nature
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 definite optimum state which is the specific good or the end
appropriate for it.
The teleological conception of nature states that everything in nature is
moving towards a teleos, a specific end. What generally occurs can both be
explained and evaluated as good or what to occur, by exhibiting it as a step
towards the proper end or goal of the thing concerned. This specific end or good
is in part a condition of biological maturity and developed physical powers and
also includes a distinctively human element, a development and excellence of
mind and character manifested in thought and conduct.
Hart proposes that the teleos or the proper end of human activity is
survival, which is drawn from the lowly sphere of biological fact which man
shares with other animals.
The reason that Hart provides for picking survival as the basic end for
humankind are the simple contingent fact that most men wish to continue
existence and our concern with social arrangements for continued existence.
This is reflected in whole structures of our thought and language, in terms of
which we describe the world and each other and that we are concerned on how
men should live together.
The Minimum Content of Natural Law
There are certain rules of conduct which any social organization must
contain if it is to be viable. 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 the form of five truisms, the salient characteristics of human nature
upon which this modest but important minimum rests not only disclose the core
good sense in the doctrine of Natural Law but are of vital importance for the
understanding of law and morals.
Human vulnerability, which entails a restriction on the free use of violence.
The argument lies in the simple fact that men are both occasionally prone to, and
normally vulnerable to, bodily attack. Thus, if there are no such rules restricting
violence, there would be no point in having rules of any other kind.
Approximate equality, which restricts the use of aggression. Although men
have different capacities, no individual is so much more powerful than others,
that he is able, without co-operation, to dominate or subdue them for more than a
short period of time. Thus, there is a need for a system of mutual forbearance
and compromise which is the base of both legal and moral obligation.
Limited altruism, which makes a system of mutual forbearances both
necessary and possible as men are neither devils nor angels, but are a mean
between these two extremes.
Limited resources, which require some system of property. Since
necessities needed by men for survival are limited, which can only be grown or
won from nature or have to be construed by human toil, there is a need for a
minimal form of the institution of property and the distinctive kind of rule which
requires respect for it.
Limited understanding and strength of will, which require some form of
sanctions not as the normal motive for obedience, but as a guarantee that those
who would voluntarily iobey shall not be sacrificed to those who would not.
Hart claims that these five truisms about human nature makes it a "natural
necessity" that law has a certain content that embodies the minimum forms of
protection for persons, property and promises. The general form of the argument
of the minimum content of natural law is simply that without such content, laws
and morals could not forward the minimum purpose of survival.





References:
Hart, H. L. A. The Concepts of Law (1961)
Hart, H. L. A. The Concepts of Law 2
nd
Edition (1994)
http://en.wikipedia.org/wiki/H._L._A._Hart#The_Concept_of_Law
http://legaltheoryandjurisprudence.blogspot.com/2008/08/hla-hart-laws-and-
morals-and-minimum.html
http://www.angelfire.com/md2/timewarp/hart.html
http://al-hikmat.blogspot.com/2007/07/hla-harts-concession-to-natural-law.html