H. L. A. Hart and the Necessary Conceptual Connections Between Positive Law and Natural Law

Dissertation, The Florida State University (1989)

Abstract
The goal of this dissertation is to examine critically H. L. A. Hart's concepts of positive law and natural law and use them as reference points in order to constructively show the necessary conceptual relationships between positive law and natural law. ;After a critical sketch of Hart's idea of law in the first chapter, chapter II undertakes an analysis of his thesis of natural law. Note is made of the incompleteness of his own attenuated account and of the error of misrepresenting the standard account of natural law. Chapter III summarizes the relevant aspects of five of Hart's critics and gives a critical appraisal of his important concept of obligation. ;In Part Two, the constructive part, chapter I sketches the human good and the natural law method of the standard account of natural law, seeing positive law as "an ordinance of reason directed toward the common good for the care of the community," as Aquinas maintains. Chapter II describes the three necessary conceptual connections of natural law with positive law and understands their basis to rest upon practical human reason. Hart's own account incorporates unacknowledged moral presuppositions. ;This study finds that Hart unnecessarily limits the role of natural law in jurisprudence by restricting its ambit of operation and recommends revisions to Hart's legal theory. Contrary to Hart's tenet of positivism, there are necessary conceptual connections between positive law and natural law. Thus, Hart fails to recognize that practical reasoning is natural law and that his concept of law is a part of its genus; Hart assumes the moral trust necessary to participate in the language and culture which law uses, and thereby participates in this conceptual connection between law and morality; the concept of justice is found to be a necessary part of law , because an organized system of law needs to be justified on an obligatory ground beyond coercion
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