Thus for positivists, the very "law-ness" of a rule is a matter of pedigree not content. What is claimed is that there is no logical, or necessary, or conceptual link between law and morality, although as a matter of contingent fact, law will often coincide or approximate with morality and morality may have a significant influence on the contingent content of law.
First, Hart said that his rule of recognition would ‘cure’ the social ‘defect’ of ‘uncertainty’ that would exist in an imaginary society without such a rule. If we can be ‘certain’ in our identification of law, he said, there is a distinct social advantage. If this were not the case, the society in which we live would be inefficient and static as people would not know what is required of them, as there would be no authoritative determination of what is permitted.
Second, he said that we would be able to draw a sharp line between our moral consciences and what the law requires, allowing us to confront ‘the official abuse of power’. This wedge between what the state claims in the name of law, and ourselves, therefore provides us with a clear enough distance from law in order to appraise it.
Hart first indicated the sort of things that might be found in a rule of recognition, for example, it may refer to an authoritative list or text of the rules. However, Hart acknowledged that in any mature legal system such a rule will be considerably more complex. In such systems, the rule of recognition is likely to refer not so much directly to the rules but indirectly to the criteria for identification of the rules such as their being enacted by some specific person or body, or their long customary practice, or their relation to judicial decision making, or a combination of such "sources". In that latter case, the rule of recognition may also establish a hierarchy amongst the several sources, such as the subordination of custom or precedent to statute.
The close connections between law and justice are obvious. Hart himself said that he thought justice to be the most ‘peculiarly’ legal of all the moral virtues. Hart who, despite his claim about law’s virtue of justice denied a ‘necessary’ relationship between law and justice, did concede that there was a moral content to law in one sense, that where it has been ‘incorporated’ into law. But he was clear that he considered such morality to be ‘internal’ to the law, that is to say, entirely the result of legislative or judicial adoption.
Where some individual has carried out an offence, the principle of justice must be that of restitution and not punishment or retribution. Assuming that a society maintains strict equality, actions which disturb that perfect equality require compensation which restores equality. However, a person who kills another under extreme duress, - say, where a terrorist with a gun tells him to - should be convicted of murder. The question that directly engages us is whether it is morally right to send a person to prison for life in such circumstances. Such cases – the ones to which Ronald Dworkin drew our attention as ‘hard cases’ – are those in which a proposition of law cannot uncontroversially be determined. Such cases bring out the ‘argumentative’ side to lawyers – their skills to argue for a just decision.
Dworkin asserted that judicial practice simply did not support the notion that law was a body of rules. He described decision-making instead as a tension between rules and `principles'. In any given case, rules might conflict with principles, and principles with each other and a particular weight should therefore be attached. Then the judge would have to decide the relative weight to apply to each. For example, in the case of Riggs v Palmer (1889) the court had to decide whether a man who had murdered his grandfather could inherit under the grandfather's will. It was clear that the standard rules of inheritance said that he could, indeed there was no rule of law that said he could not. However, it was a principle of law that courts should not allow bad guys to profit from their own wrongdoing, but there are certain exceptions such as that of adverse possession.
Dworkin favours the approach called ‘integrity in law’ in order to protect the values and morals of the society. By selecting the one of the two applicable principles the unused principle still remains valid whereas if there are two conflicting rules then the one invalidates the other.
In the context of his theory, Dworkin puts forward his "one right answer" thesis i.e the proposition that all legal questions have a unique right answer. He observes that the legislature in each society may pass legislation inconsistent with earlier laws. It regulates the future and thus it is taking policies into account. Policies are defined as an argument underlying a community goal, which may conflict and change and thus, the Courts should only consider the rights of the litigants.
He further observes that the judiciary, unlike the legislature, will try to found its decisions on past decisions and will try to locate the gravitational law of each precedent. In doing so, therefore, the judge must consider the principles which emanate from the precedent and attach a particular weight to the principle by making a moral judgment as to what the law is.
Dworkin argues that are rules cannot determine what the law is as they are questions of fact and rules can not identify the weight that a principle may carry. Rules are only certain and clear when you presume that there will be agreement of when your interpretation of how and will something in fact be applied. As a result, a principle needs to be allocated to discern the pattern and if applied to a series of precedences of law that look similar, the rule or principle has to be determined which is only done by making a moral judgment.
This clearly illustrates the divergence in the two concepts of whether law can in fact be identified independently. Dworkin criticises Hart’s rule of recognition theory on the basis that it gives powers to the judges to identify and set the criteria as to what the law is and any law that is not sufficiently certain is not, in fact, law and have the discretion to make new law by deciding hard cases. He states that this is clearly a defect in his theory as judges have not been elected and clearly violates the principle of separation of powers by making new law. It is the role of the legislature to enact new legislation and not the judiciary.
Secondly, Dworkin states that if the rule of recognition were to be correct and there is no law until it is made certain and the judge makes a decision on a particular case, then this is retrospectively made law and cannot be imposed on the defendant. Dworkin argues that Hart does not take into account the hard cases of law in his theory and it is impossible to identify the law without making use of legal principles and internal moral judgments.
I think it is also important to examine the impact that law has on the enforcement of morality and determine whether society’s opinions and moral viewpoints have in fact influenced legal developments and whether we can identify law and morality as independent.
Hart was a great supporter of the ‘harm principle’ propounded by JS Mill. This principle is premised on the notion that the law cannot legitimately prohibit any behaviour on moral or any other ground, unless it will cause harm to another member of society. The reason for this is that Mill valued the freedom of the individual and wanted minimal state intervention as to how they conducted their lives. Hart and Mill would agree with the statement that it is ‘morally wrong’ for the State to enforce strongly held moral beliefs by law.
Hart claimed that Devlin was wrong to suppose that the preservation of social cohesion requires the enforcement of morality as such: ‘society cannot only survive divergences from its prevalent morality, but profit from them’.
This sentiment can be illustrated by imaging a typically law abiding and good citizen who regularly engages in conduct in private which is felt by the majority to be immoral but which does not harm others. This was perhaps the situation of homosexuals in the fifties. If the person has no intention of giving up his ‘immoral’ conduct simply because it is illegal, then his respect for the law is diminished. By allowing the conduct by law, then he is still a law abiding citizen with no reduced respect for the law and therefore society does, indeed profit.
The first issue which I will consider is the legality of certain behaviour which is generally considered to be immoral. The example I will use is that of adultery. Although, according to most people’s moral values this is highly undesirable, most would also argue that in the interest of individual freedom it should not be criminalized. A law prohibiting extra-marital affairs would not only lead to a large proposition of the population becoming criminals but would offend our sense of autonomy. It can be safely stated that most people consider adultery as a moral misdemeanour which one must reconcile with oneself but is really none of the law’s business. This example clearly supports the harm principle and rejects the principle of enforcing moral laws for the sake or morality.
However, if we consider the law against bigamy, the opposite theory is supported. What harm does polygamy really do to anyone else that adultery or sex outside of marriage does not? It cannot be reasoned that family values would break down and this would harm society as surely such values can be broken by adultery or having a child outside of wedlock, and in any case, harm to the society in general is not sufficient justification for the harm theory. Yet the average citizen would probably feel that the law against bigamy is justified on some other ground. This could perhaps be a wish not to publicly recognise what is felt to immoral. Permitting immorality is one thing but endorsing it is quite another.
The public element must be defended on purely moral grounds, and in this sense, laws against bigamy and public prostitution can be defended using Devlin’s theory but limiting it to laws with a public element of morality. This seemed to be the reasoning used by the Wolfenden Report when discussing private and public morality. The one does not justify with individual freedom and the other does. However, this reasoning can only go so far. There are certain offences, such as incest, which although have no public element or cause harm to others (providing there are no genetically weak offspring) are so morally reprehensible and repulsive to most members of society that it is felt that should be prohibited purely for the sake of morality.
These examples show that none of the theories outlined above can adequately deal with commonly accepted laws in place in the UK. I believe that it is not possible to argue that the law can be identified independently of morality, which Hart clearly advocates. In my opinion, it is only when we take into consideration the reality of the judicial process and the impact of society’s moral opinion on legal issues, that the purpose of law in the aim of justice and equality to all citizens becomes apparent.
