What is Hart’s notion of a legal obligation and how does it differ from a moral

obligation?

I will explain Hart’s model of how legal-obligations are similar and different to

moral-obligations. Then explain how Hart attempts to prevent anarchy and tyranny by

counterposing legal-obligations to moral-obligations. Then argue how by protecting

legitimacy of legal-obligations contrary to moral-obligations, Hart conserves unjust-

regimes.

Hart says individuals have a ‘moral-obligation’ to conform their conduct to a

standard, when their social-group actually accepts a ‘moral-standard’ as enjoining

conduct, and enforces conformity to this standard.1

Hart provides examples of ‘moral-standards’:

1. Religious standards prescribed by religious texts, traditions2

2. Calculations of Utility of action-consequences3

3. Common-Sense notions of justice4

4. Whole variety of standards humans have for living in society5

‘Legal-Obligations’ and Moral-Obligations share some similar characteristics:

Enjoin standards of conduct upon members of a group

Standards are conceived as binding independent of the consent of the individual

bound

Standards Supported by serious social-pressure for conformity

Compliance with standards is required-minimum contribution to social-life

Standards apply to classes of people and situations

Include minimum-standards people need to viably live in society, achieving

values ‘bottomed in the common nature of man’,6 including:

1 HLA Hart, ‘Positivism and the Separation of Law and Morals’ (1958) 71 Harvard Law Review 593, 597, hereafter ‘SoLaM’2 SoLaM 597, 6043 SoLaM 597, 608-6094 SoLaM 605-65 SoLaM 623-246 Solam 621

o Natural-procedural-justice: ‘principles of objectivity and impartiality in the

administration of [rules]’, using ‘general rules’, treating ‘like cases alike’,

‘applying [rule] only to genuine cases of the [rule]’7

o Survival: ‘basic moral principles vetoing murder, violence, and theft’ are

‘natural necessity’ for human-beings to achieve value of ‘survival in close

proximity to each other’8

Legal-Obligations differ from Moral-Obligations in some ways:

M-O rely on shame/guilt for enforcement not mere-fear9; L-O rely on fear and

interest by threats of punishments, including physical-force10

M-O excuses from moral-blame unintentional-breach; L-O excuses absence of

mens rea, but can impose ‘strict liability’ or ‘objective tests’ which ignore

offenders disability like ‘reasonable man’ standard.11

M-O exists only while society evaluates conformity to standard as important; L-O

can exist while standard is disobeyed but rule not yet repealed12

M-O cannot be created, changed or extinguished by human fiat; L-O can be

created, changed or repealed by deliberate enactment13

Legal-Obligations achieve better social-control and standards than Moral-Obligations

because Legal-Obligations differ from Moral-Obligation in some ways:

M-O created by a disparate set of rules; L-O created by a more coherent system of

rules14

M-O suffers uncertainty15 about standards, because there is no formal procedure

for identifying rules; L-O are created by rules recognised as valid by ‘rules of

recognition’16

M-O suffers uncertainty17 about the precise scope of standards, because there is no

formal procedure for settling disputes about interpretation; L-O are created by

7 SoLaM 6248 SoLaM 623-249 SoLaM 623-410 HLA Hart, The Concept of Law (2d ed. 1994) 180, hereafter ‘CoL’11 CoL 17912 CoL 17613 CoL 176-714 CoL 9215 CoL 9216 CoL 9517 CoL 92

rules authoritatively interpreted by legal-officials complying with ‘rules of

adjudication’18

M-O standards are too static19, because there is no procedure for deliberately

adapting rules to changing circumstances; L-O are created by rules enacted,

amended, repealed by legal-officials complying with ‘rules of change’20

M-O suffers inefficiency of diffuse social-pressure used to enforce standards,

because there is no procedure for settling disputes about whether standard has

been violated, and what sanction is appropriate21; L-O are administered by legal-

officials complying with ‘rules of adjudication’22 who authoritatively determine

fact of violation, decide on sanction

M-O suffers inefficiency of enforcement, danger of disproportionate response and

social-conflict, because there no procedure to identify who will impose sanctions

and how23; L-O are enforced only by legal-officials complying with rules of

enforcement24

Thus, Legal-Obligations arise within a ‘Legal-System’, where ‘primary-rules’ (which

create legal-obligations for a subject about actions they must or must not do)25 are

‘conclusively ascertained, introduced, eliminated, varied’26 by ‘secondary-rules’27

which also conclusively determine fact of violation, sanctions and enforcement.

Secondary-Rules include the abovementioned rules of recognition, change,

adjudication, and enforcement. Legal-obligations are created by rules recognised as

valid by rules-of-recognition.

Legal-Obligations arise within a Legal-System of rules which require standards of

conduct not necessarily consistent with moral-obligations;28 thereby danger arises of

anarchy (citizens discarding these immoral-legal-obligations) and tyranny (immoral-

legal-obligations being uncritically obeyed). Anarchist thinks ‘My moral-obligations

18 CoL 9719 CoL 9320 CoL 95-621 CoL 9322 CoL 9723 CoL 9324 CoL 9825 CoL 9326 CoL 9427 CoL 98, 10028 SoLaM 614-15

disagree with a legal-obligation, therefore its legal-rule is invalid and I have no legal-

obligation, I will act as I please’; In tyranny immoral-legal-obligations ‘supplant

morality as final test of conduct and escape criticism’ where subject thinks ‘legal-

obligation exists, therefore it is an ideal standard for conduct which I must obey’

without further consideration of moral-obligations.29

Hart models legal-obligations within a legal-system counterposed to moral-

obligations outside the legal-system, to prevent anarchy and tyranny. A legal-system

by creating legal-obligations achieves social-control to prevent anarchy, while

counterposed moral-obligations disobey insufferable-tyranny. How does this happen?

A legal-system dissuades and controls anarchy by imposing coercive social-

control30 upon all subjects by promulgating and enforcing (at least some) legal-

obligations with sanctions, including physical-force;31

A legal-system also prevents anarchy when subjects (citizens, legal-officials)

accept legal-obligations as a guide to conduct for themself and others, motivated

not primarily and solely by fear of sanctions;

Subjects accept legal-obligations because subjects accept the legal-system as

useful to achieve their goals;

Subjects could be motivated to accept a legal-system by selfish-strategic

defeasible choices to engage in the rule-guided power-relations of the legal-

system as a means of secure-ordered association with others to achieve survival

and pleasures; or subject could accept a legal-system and its legal-obligations by

less-strategic acculturation and conformity to conventional social-processes;32

Subjects use secondary-rules of a legal-system to identify valid primary-rules

which create legal-obligations for the subject;

Legal-Obligation complying and non-complying citizens33 understand that valid-

legal-rules communicate an ‘internal aspect’ which models citizen as subject

‘enjoined, required, expected’34 to comply with rule-standards for their conduct

i.e. all citizens understand that a valid legal-rule subjects the citizen to legal-

29 SoLaM 597-830 SoLaM 60031 SoLaM 62132 ‘social acceptance of rule’ could be ‘motivated by fear, superstition or [cultural] inertia’ SoLaM 605-633 CoL p8834 Benjamin Zipursky, ‘Legal Obligations and the Internal Aspect of Rules’ (2006) 75 Fordham Law Review 1229

obligations, despite disagreement between these legal-obligations and the citizen’s

moral-obligations;

A majority35(but not necessarily)36 of citizens37 are legal-system-accepting subjects

who model themself in agreement with the ‘internal aspect of rules’38 as willing

insider-participants39 of the legal-system, self-regulating by its legal-obligations;40

Citizens non-accepting of the legal-system or citizens who prefer non-compliance

with legal-obligations are unwilling or deviant participants in the legal-system but

adopt a selfish-strategic Realpolitik-model of legal-obligations to avoid predicted

enforcement;41

Legal-System administrators (empowered citizens42 and legal-officials) maintain

their subject’s acceptance of legal-obligations by maintaining natural-procedural-

justice and complying with secondary rules43 when creating, interpreting and

administering rules upon subject.

A legal-system’s social-control is prevented from becoming an insufferable-

tyranny because a subject who understands his legal-obligations within a legal-

system retains a psychological ability to:

o identify his moral-obligations which are different to his legal-obligations

o evaluate his legal-obligations by comparison to his moral-obligations

o evaluate the legal-system or particular legal-obligations as too contrary to

moral-obligations (or too evil) to obey.44

o Subject is expected to be courageous enough to disobey enforceable legal-

obligations or revolt against the legal-system.

Thereby, a legal-system by subjecting citizens to legal-obligations achieves social-

control to prevent anarchy, while a subject’s counterposed moral-obligations

disobey insufferable-tyranny.

Do people living in unjust-regimes still have legal obligations?

35 CoL 9036 CoL 10637 SoLaM 62138 CoL 9039 CoL 98, 10240 CoL 8941 CoL 90-142 e.g. power to contract SoLaM p60443 SoLaM 60344 SoLaM 620-21

We will define an ‘unjust-regime’ as a legal-system subjecting citizens to legal-

obligations inconsistent with their moral-obligations. Hart rejects Radbruch’s

‘anarchist’ model that ‘humanitarian morality’ founds the ‘concept of Legality’,

therefore a legal-rule cannot be valid if it contravenes basic moral-obligations, and

‘should not be taken into account in working out the legal position’ of a subject, even

if the rule ‘conformed with the formal criteria of validity of a given legal-system’.45

Hart models that citizens living in an unjust-regime have legal-obligations when rules

are recognised as valid46 according to the legal-system’s rules-of-recognition, despite

these legal-obligations disagreeing with the subject’s moral-obligations; but the

subject could have a moral-obligation to disobey these legal-obligations, and do so at

their peril facing enforcement.

Hart’s model of a subject’s legal-obligations in an unjust-regime proposes:

If a persecuted subject disobeys an immoral L-O, subject retains L-O. Hart models

there is no necessary connection between efficacy of a rule (i.e. actual obedience)

and its validity47

If a persecuted subject might or does escape sanction for disobedience of L-O,

subject retains L-O48

If a persecuted minority disobeys L-O or rejects legal-system, they retain L-O49

If a persecuted majority disobeys L-O or rejects legal-system, they retain L-O50

If there is a ‘general disregard for the rules of’ a legal-system which is ‘so

complete’, ‘so protracted’, ‘we should say’ ‘it has ceased to be the legal-system of

the social-group’, then it is ‘pointless’ to ‘assess the validity of rules’, and other

citizens who reject the legal-system’s rules-of-recognition would not accept that

subject has L-O nor seek enforcement51

Hart models legal-obligations in a slave-owning-society:

45 SoLaM 61746 CoL 103, 11047 CoL 8348 CoL 8349 CoL 104-650 CoL 104-6, 116-1751 CoL 104

Hart’s model of legal-system does not recognise innate-human-rights, instead

‘rules create rights’ which could contradict moral-obligations. In a slave-owning-

society, rules create rights for a master over his slaves52 and create legal-

obligations for slaves.

Hart models that some ‘rules are so fundamental [to society being viable] that if a

legal system did not have them there would be no point in having other rules’.53

These necessary rules include prohibition of murder, violence, theft; and rules

requiring natural-procedural-justice. However, a legal-system with these

necessary rules could be ‘hideously oppressive, and might deny to a vast rightless

slave population the minimum benefits of protection from violence and theft’;

only if the rules failed to protect the survival and natural-procedural-justice of the

slave-owners would ‘the minimum [criteria for a legal-system] be unsatisfied and

the system sink to the status of a set of meaningless taboos.’54

Hart’s model of legal-system, primarily valuing social-control, seems to legitimise

protecting the rights of the powerful and privileged at the cost of the less powerful

and underprivileged. Slaves have no ‘reason to obey except fear and would have

every moral reason to revolt’ but they retain legitimate legal-obligations!55

Hart provides us a Realpolitik model of legal-obligations, primarily valuing

social-control, conserving the legitimacy of legal-obligations contrary to moral-

obligations, thereby conserving the status and power of officials who create and

enforce immoral legal-obligations, thereby repressing social-progress and

resistance within unjust-regimes.

Abolition of slavery in England, USA and France was justified by a natural-law

model of innate-human-rights which delegitimised legal-obligations of slaves and

rights of slave-owners. In contrast, Hart’s model expects slaves to burden themself

with the status of criminal while disobeying legitimate enforceable legal-

obligations; which is politically unviable. Or, Hart expects deprived power-

lacking slaves to violently overthrow the legal-system; which is physically

unviable. Hart’s model of legal-obligations conserves unjust-regimes!

Conclusion

52 CoL 605-653 SoLaM 62354 SoLaM 62455 SoLam 624

Hart models legal-obligations as arising in an existing legal-system, where citizens

and officials accept and use rules-of-recognition to identify a rule as valid and

applicable to a particular subject. Hart argues his model of legal-system prevents

anarchy and tyranny by protecting legitimacy of legal-obligations when contrary to

moral-obligations, thereby supporting social-control; while expecting subjects to

evaluate legal-obligations contrary to moral-obligations, then disobey at their peril. I

have argued that Hart’s model, by protecting legitimacy of legal-obligations contrary

to moral-obligations, conserves unjust-regimes.

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