The Mystery of Law: A Critical Analysis of H.L.A Hart’s The Concept of Law

Author

Stephen Mark Gray IIFollow

Date of Award

Spring 4-30-2020

Document Type

Undergraduate Thesis

Department

Philosophy and Religion

First Advisor

William Berry

Second Advisor

Robert Westmoreland

Third Advisor

Steven Skultety

Relational Format

Dissertation/Thesis

Abstract

This thesis explores the role of morality in law through a critical examination of the work of one of the most widely cited and renowned judicial scholars, H.L.A. Hart. His modified theory of positivism, which denotes that law and morality are separable and that legal rules may have any content, has had an enduring impact on the landscape of judicial thought in the last century. As Hart’s work has had an indelible hand in shaping analytical jurisprudence and as it exemplifies the antithesis of my argument, it will serve as a theoretical foil. From it, I hope to articulate my own concept.

After critically examining Hart’s conception of the legal system as a construct motivated solely by survival and guided solely by rules, I proffer my own conception of the legal system based upon the teleology of law and the natural conditions of human dignity. With this natural law theory based around human dignity, I hope to introduce a new way of looking at legal systems, not as purely logical concepts but as complex and storied enterprises of human will.

I should note that theorists such as Lon Fuller and Ronald Dworkin have taken great strides in reintroducing moral facts into the concept of law. Below, I will extensively cited Fuller’s detailed critiques of the supremacy of the rule. The principle that he chooses as the central content of natural law is “open communication by which men convey to one another what they perceive, feel, and desire. This precept, I believe, is not expansive enough to justify all of the moral facts that pervade our system. As we will see in the following sections, I have expanded the principles of substantive natural law under the aegis of human dignity. I have offered a concept of dignity that better fits how we generally think and talk about Law, how embedded moral facts truly are in our legal system, and how morality operates in the day-to-day trenches of judicial interpretation. We have also borrowed the concept of the principle, as it was defined and heralded by Ronald Dworkin. He famously touted judicial interpretation as “moral from the ground up,” just as much a product of principles as of rules. Like Fuller, however, he stops short of introducing a fully fleshed natural content of law. Dworkin primarily cites principles as an interpretive concept and as sources of law. We shall do this too, but we are going further in saying that the law, all of it, satisfies and reproduces some elements of morality. This thesis would surely not be possible without their insight. Along the way, I will explore the essential links between morality and law, the role of moral principles in judicial decision- making, and the shared human values that I believe make law possible.

Recommended Citation

Gray, Stephen Mark II, "The Mystery of Law: A Critical Analysis of H.L.A Hart’s The Concept of Law" (2020). Honors Theses. 1575.
https://egrove.olemiss.edu/hon_thesis/1575

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