Tutorial 3: Natural Law

4. Explain the concepts below and provide relevant illustration and argument:
a. Minimum content of natural law
When laying down the framework for the basic debate between positivism and natural law, Hart
thinks it necessary to clarify, first, what the debate is not about. He does not contest the truistic
claim that the development of law, at all times and places, has been profoundly influenced by
conventional (and, for that matter, unconventional) morals. However, that does not necessarily
imply that a legal system must exhibit some specific conformity with morality or justice.
Hart's argument is essentially a response to classical natural law theorists. Such theorists believe
that there is a specific system of morality, consisting of certain principles, discoverable by
reason, that any law must conform with if it is to have the status of law. This viewpoint is
grounded in the basic idea that Hart defines as the "teleological view of nature"; namely, that
everything in nature, including man, is moving towards a teleos, a specific end. The teleos of an
acorn would be the culmination of its growth into a full-fledged, healthy oak tree. The teleos of
human beings is a condition of bilogical maturity coupled with an excellence of mind and
character. And natural law must promote, by its directives, the achievement of this teleos.
The idea of what forms teleos for mankind has been violently disputed and debated over the
centuries. Taking on from Hobbes and Hume, Hart chooses what he feels is the lowest common
denominator, the basic indisputable minimum which (almost!) all people will agree on: survival,
nothing more, nothing less.1
There are two reasons that Hart provides for picking survival as the basic end for humankind.
First, that not only do almost all men wish, above all else, to continue living, but the very
structures of our thought and language (words like harm and benefit, illness and cure, disease
and safety) embody this desire. Second, while specifically discussing law, we are discussing how

1 WILLIAM C. STARR, 'LAW AND MORALITY IN H.L.A. HART'S LEGAL PHILOSOPHY'

best to govern the conduct of people who are living together; and to achieve that, they must be
living in the first place!
Therefore, given that survival is an undisputed end, laws must contain certain content to make
sure that that end is realised. This Hart calls the minimum content of natural law.
Therefore, Hart's idea of the minimum content of natural law can be defined in the following
manner:
"Proposition 1: Given that law is a mechanism for regulating the behaviour of individuals in a
social association, it must have a certain basic, minimal content in order that the association be
viable.
Proposition 2: In turn, for the ssociation to be viable, the survival and continued existence of at
least some of its members must be ensured.
Proposition 3: The content which ensures such survival is called the minimum content of natural
law."
Obviously, the content of such law is based on certain facts grounded in human nature and the
state of human existence. Hart lists five such facts: human vulnerability, which entails a
restriction on the free use of violence; approximate equality, which again, restricts the use of
aggression; limited altruism, which requires systems of mutual forbearance; limited resources,
which require some system of property; limited understanding and strength of will, which require
some form of sanctions.
These five truisms about human nature, claims Hart, makes it a "natural necessity" that law has a
certain content that embodies the minimum forms of protection for persons, property and
promises.
Lastly, it may be noted that Hart's idea of there being a minimum content of natural law strongly
resembles Fuller's idea of a "morality of duty," and the "eight desiderata" of law that make a
legal system possible.
Does Hart make an impermissible leap from the "is" of human nature to the "ought" of the
minimum content of natural law while grounding this content in the human condition? One may

argue that the minimum content of natural law is dependant upon survival being an end; and that,
in turn, is dependant upon the five facts that Hart has pointed out; and therefore, in the latter part
of the argument, the impermissible leap from fact to normative claim has taken place.
It is important to note, however, that a certain proposition may be contingent upon another, but
there need not be a causal link between the two.
Proposition A: I will have tea with X at his home tomorrow evening at 5 PM.
Proposition B: X will be at home tomorrow evening at 5 PM.
The truth value of the first statement will change in accordance with a change in the truth value
of the second statement. However, my having tea with X is not "caused" by X being at home.
Therefore (as Finnis points out), while it is true that the moral content of law is contingent upon
the nature of human existence, and would change as the latter changes, that does not equate to
deriving morals out of facts.
Because then no man would voluntarily cooperate within the system, and for a legal system to
survive, there must be the cooperation of at least some of its members (for whatever reasons) in
order to oppress the coerced majority.2
Is there such a thing as Natural Law? The question is old, almost as old as philosophy itself, and
it has been at the centre of a heated debate among two competing doctrines or schools, the
advocates of Legal Positivism and those of Natural Law. The persistence of the disagreement
might be regarded as surprising, and hence calling for an explanation. As far as mainstream
Natural Law theory is concerned, contrary to what some people rather hastily say, the
disagreement is not about the existence of a body of rules created by the ruler (or the rulers) of a
political community. Given the relevant factual circumstances, it would be foolish (and indeed
imprudent) to deny that such body of rules exists. To mention just one example, Thomas
Aquinas, a paradigmatic advocate of Natural Law, acknowledged that there is a Positive Law,and
that its rules are among the grounds a person should take account of when deciding how to
behave. A superficial glance to some of the features of Aquinass theory of law is indeed useful
2 Byrne, Gavin, 'Taking the Minimum Content Seriously: Hart's Liberalism and Moral
Values' [2012]

to illustrate the non-factual nature of the disagreement among some Legal Positivists and their
adversaries. As pointed out by John Finnis, Aquinas should be read as asserting that the legal
validity of a positive law is derived from its rational connection with Natural Law, and this
connection holds good if, and only if, the law (i) originates in a way which is legally valid, and
(ii) it is not materially unjust either in its content or in the relevant circumstances of its creation.
According to Finnis, legally valid should be understood differently in Aquinass thought when
used in the statement of his general thesis on legal validity or in the formulation of its first
conditional clause. This is legitimate, and it is not an instance of confusion on Aquinass part,
because law has different uses, which should be reconstructed around a focal meaning. The
word law should be used to designate a rule of right reason, but it might be used also to talk
about the provisions of a ruler. It is in the first sense that its legal validity is derived from its
rational connection with Natural Law; whereas in the second (restricted) sense its validity
depends only on its having been issued by someone which is in a position of political authority.
Careful analysis of what Aquinas meant by rational connection between Natural and Positive
Law, shows that the legal positivists charge that Natural Law would make Positive Law
redundant is not granted either. According to Aquinas, Natural Law should not be conceived as a
complete body of rules providing for each possible circumstance. The art of ruling is like that of
building in that it leaves room to the exercise of judgement on the best way to implement its
general provisions. Positive Law is necessarily different from Natural Law, in its being more
specific, and cannot be substituted with it. The issue of obedience itself, a typical focus of
disagreement among Legal Positivists and advocates of Natural Law, could not be disposed of as
easily as someone might think. There might be circumstances in which one should comply with a
rule that is contrary to the conclusions of right reason, or issued by a ruler which has no authority
to make law, simply because it is better, in such circumstances, to have a bad rule than no rule at
all. A belief in Natural Law is compatible with the idea that there is a specific good of authority
and, therefore, of obedience. This is not the place to spell out fully Aquinass arguments or to
assess their weight.
The object of the disagreement is rather the evaluation of such body of rules. Such statement
should be qualified though. Whether some people are inclined to think that, as far as the law is
concerned, there is no standpoint other than the criteria of legal validity of the system itself one

might adopt in order to judge of the defects of such system of rules as a legal system; there are
others who would say that there is a natural function of law, and that such function sets the
conditions that any legal system should fulfil in order to have a claim to be recognised as law
in the proper sense of the word. This might help us to clarify which is the object of disagreement
among some legal positivists and the advocates of Natural Law. One version of Legal Positivism
might be described as the thesis that the criteria of legal validity of a given legal system are the
only internal standards available for the evaluation of such legal system as a legal system. It is
this version of Legal Positivism that is incompatible with the idea of a Natural Law. Let me
clarify this point. It is conceivable that one might argue that there are external standards, say
those of a positive morality, one could use to judge if a particular legal system is satisfactory or
not from the moral point of view.
When the conditions set by those standards are not fulfilled, compliance would be grounded on
prudence alone, not on moral obligation. Holding this position is compatible with the idea that
there is no such thing as a universal morality. When a legal theorist holding such opinion
disagrees with Natural Law theorists, the object of the disagreement is not the existence of nonexternal standards of evaluation of a particular legal system, but rather the subordination of the
legal system to the injunctions of morality. Of course the criteria of legal validity and legal
obligation are independent from positive moralitys criteria of obligation. From this point of
view, the question if one should comply with a law prescribing an action that is contrary to the
requirements of morality, is itself a moral question.
These are standards of natural goodness, not of positive morality. This means that the criteria of
validity of a particular legal system are not the only, and not even the most important, internal
standards of evaluation of the legal system itself. The value of a legal system as an instance of its
kind depends also on its capacity to satisfy requirements that are fixed by what might be called
the natural function of law. I shall argue that this position is incompatible with moral
subjectivism, but is compatible with legal positivism conceived as the descriptive study of
different (more or less perfect) systems of positive law seen as social institutions.
Hart has given one influential answer to these questions in his book on The Concept of Law. The
core of his answer is in the claim that reflection on some very obvious generalizations indeed
truisms concerning human nature and the world in which men live, show that as long as these

hold good, there are certain rules of conduct which any social organization must contain if it is to
be viable. Such rules do in fact constitute a common element in the law and conventional
morality of all societies which have progressed to the point where these are distinguished as
different forms of social control. With them are found, both in law and in morals, much that is
peculiar to a particular society and much that seems arbitrary or a mere matter of choice. Such
universally recognised 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 contrast with the more grandiose and more challengeable constructions which
have often been proffered under that name. According to Hart the connection between such true
generalizations concerning human nature and the minimum content of natural law should not be
seen as merely affording an explanation of the survival of the communities whose legal systems
have the required provisions. Harts main aim is not to give an explanation of the considerable
overlap among the legal systems of all the communities we know of.
His argument is rather that awareness of these facts about human nature should give us reasons
to comply with a law that fulfils the requirements that are imposed by the minimum content of
natural law. One of the most important contributions Hart has given to legal philosophy (and
indeed to philosophy in general), and that it is a pity that this part of his work has been less
appreciated than it should have done in the recent debate.
According to Hart, the importance of these truisms is not simply that they disclose the core of
good sense in the doctrine of Natural Law. They are also important in our understanding of law
and morality, because they explain why the definition of the basic forms of these in purely
formal terms, without reference to any specific content or social needs, has proved so
inadequate. The allusion is clearly to Hans Kelsens pure theory of law and to its incapacity to
be faithful to most of our basic intuitions on the nature of law.
The inquiry into the standards of evaluation of legal system as an instance of its kind is pursued
reflecting on some truisms regarding human nature and the world in which we live.
(i) Human vulnerability. This is the first truism. Human being are notoriously vulnerable to
attacks from other human beings which might wound or kill them. No human society can survive
and prosper without prohibitions regarding the use of force, and rules licensing excusable or

justifiable aggression. The presence of such rules is a requirement for the viability of society
which might be regarded as a standard of evaluation of a legal system.
(ii) Approximate equality. Despite all their differences of physical and intellectual strength,
human beings are never so strong and clever as to be able of being completely self-sufficient.
Even the strongest or the cleverest is liable to ill-health or fatigue, and in such situations he
might need to be looked after or to have rest. In such circumstances he is as vulnerable as
anybody else in the same group. This is a second factor that accounts for the need of forbearance
from all the members of a group in their mutual dealings with each other. Also in this case
prohibitions are necessary to achieve the goal, and the presence of rules prohibiting the
aggression of the defenceless is a second standard of evaluation of a legal system.
(iii) Limited altruism. Man are not devils, but neither are they angels. Their capacity for altruism
is limited. Without rules providing for this weakness a flourishing human life would be
inconceivable. In this case as well, the form of such rules is most likely to be that of prohibitions
of certain behaviours likely to produce harm. But it is not necessarily so. Positive performances
might further this specific aim alongside with prohibitions. The presence of rules addressing this
weakness is another standard of goodness of a legal system.
(iv) Limited resources. Human beings need food, shelter and other facilities to survive and
prosper. Hence rules providing for some system of allocation and for the circulation of such
resources is necessary for the survival and flourishing of a human society. The presence of rules
establishing property rights and means to create obligations (like the institution of promising) is
another standard of goodness of a legal system.
(v) Limited understanding and strength of will. Most human beings are reasonable enough to see
for themselves that respect for the aforementioned rules is necessary. But some of them are not.
Sanctions are therefore needed to provide not just a motive of obedience for the recalcitrant, but
also a guarantee that those who would comply voluntarily will not be unfairly harmed by the
behaviour of free riders.3
3 Gautham Bhatia, 'H.L.A. Hart, Laws and Morals, and the Minimum Content of
Natural Law' ( 2008) <http://legaltheoryandjurisprudence.blogspot.my/2008/08/hlahart-laws-and-morals-and-minimum.html> accessed 5 September 2015

Harts argument can give us a good explanation of the undeniable fact that there is a considerable
overlapping between the legal systems and the positive moralities of all the surviving human
communities, but it cannot be used as the premise to give a justification of an action performed
in compliance with a moral standard. Harts argument fails in its attempt to carry the weight of
its own conclusions because gives an answer to a different kind of question. Survival is a
condition of flourishing, but the survival of many, or indeed even the majority of the members of
the human species, is compatible with their living a brutish, nasty and short life. We have done so
for quite a long time.
A truth about human nature that hart cannot abandon is when Railton makes the following point:
Revisionism may reach a point where it becomes more perspicacious to say that a concept has
been abandoned, rather than revised. No sharp line separates tolerable revisionism and outright
abandonment.
We are concerned with the possibility of lasting values that might be used to critique law in
Harts philosophy. Hart never suggested that his concept of law was eternal; his aim was simply
to clarify the meaning of the concept law as we understand it. Nevertheless, for the exercise at
hand we must take Harts account of the meaning of the concept as fixed; Harts critical moral
values about law must relate to this account of what law is if his work is to form a coherent
whole. Fixing Harts account of law in this way may puzzle some readers as this is not what
Hart himself intended to do. In the context of the exercise at hand, however, it makes perfect
sense. We are concerned with uniting Harts concept of law with his critical comments about law.
For these purposes, the critical comments that he makes must be about his concept of law rather
than any other. If there are facts about human nature or the world we live in that must persist for
Harts concept of law to work, such facts may be revisable for Hart but not to the point of
abandonment.
Otherwise, Harts concept of law itself would need to be abandoned as would all of his critical
comments about that concept.
This point has an important consequence if we take Harts reductionist naturalism about moral
values seriously. If a certain fact about human nature cannot be abandoned in Harts legal

philosophy, this fact may provide a reductive basis for objective moral values about law that
cannot be abandoned either.
Hart never provided an account of human nature itself to do this work for us, but he did, of
course, provide a detailed account of law. Let us consider a simple underlying fact about human
nature that Harts explanation of the concept law requires.
Hart clarifies how law is not simply a set of commands backed by sanctions, but is instead a set
of guides for behaviour. These may be guides for private citizens in terms of obeying criminal
law, guides for conduct in private affairs such as making a valid will or contract, or guides
directed to officials as to how to conduct themselves in an official capacity. The common point is
that legal rules, like any rules, are guides for human beings as to how to behave in various
circumstances.
Under this understanding, most human beings, most of the time, must be capable of guiding their
own behaviour. There may be examples of people who cannot do so or whose ability is limited in
this regard. We frequently talk of those who do not have legal capacity, largely on the basis that
their ability to control their behaviour is impaired in some way.
There may also be instances in which this capacity to guide behaviour has been compromised,
for example, if an individual is suffering from an epileptic convulsion. Harts empirical approach
to reasons for moral values can easily support the idea that an exception should be made where a
non-moral fact such as evidence of diminished capacity is empirically observable.
Similarly it may be the case that we will have to revise our notions of capacity and our claims as
to what the substantive content of law ought to be as we discover more about things like brain
function. Yet a revision to the point of abandonment of the general idea that human beings have a
capacity to guide their own behaviour would require Hart to also abandon his concept of law. So
long as we are interested in critical moral values in relation to what Hart calls law, a capacity on
the part of humans to guide their own behaviour must remain in some way.
Most elect to conform to rules but there are exceptions a minority choose to commit criminal
acts while most citizens avoid doing so. If the observable facts of social behaviour were
different, if we were a society of angels (assuggested by Raz46) who conscientiously and

deliberately all adhere to the law, members of such a society are capable of guiding their own
behaviour albeit that they seem likely to always choose to do so in accordance with criminal law.
In a possible set of social facts that Hart imagines a society of metaphorical sheep that
follows rules blindly without very much in the way of reflection we would still be capable of
choosing to behave in a way that conforms to legal rules even if we did so in an unthinking
fashion.
Harts account of the concept of law could not work if the observable facts of the matter were
such that all human beings were automata. If most human beings most of the time could not be
said to self-govern in terms of their behaviour, then guides for human behaviour would be
meaningless. There could be no law for a society of robots which have been preprogrammed to
act in a set number of ways, or a society of creatures which are enslaved to instincts that they
cannot control.
Hart repeatedly embraced what he terms the doctrine of fair opportunity; law ought not to
impose punishment on an individual unless that individual has had a relatively unimpeded
opportunity to make their behaviour conform to law. A good example is Harts argument against
Lady Wootton. Wootton argued that the issue of mens rea in criminal law should only be
considered at the point of conviction, in order to determine the most socially useful outcome.
The basis for this argument was a presumed link between the doctrine of mens rea and traditional
retributivist theories of punishment. Wootton assumed that looking into mens rea at the point at
which we determine guilt, and therefore looking into the defendants past mental state rather than
his or her present one, implies that sentencing is a means of achieving retribution for past
wickedness.
So positive law only ought to penalise individuals in situations in which they have been able to
exercise free choice. This is a critical moral value to guide existing legal systems. We can see a
similar commitment to fair opportunity in Harts debate with Devlin. Hart distinguishes the
repression of sexual impulses from the repression of other desires.
One may be tempted to steal, but unless one happens to be a kleptomaniac, one can freely choose
to repress this desire. One might repress ones sexual impulses by not acting upon them, but the

impulse itself is a recurrent and insistent part of daily life; it is not something that one can
exercise control over. Criminalising sexuality causes a specific type of harm because one cannot
choose ones sexual orientation in the same way that one can choose to steal or refrain from
doing so. The human capacity to control ones own behaviour plays an important role in this
argument. This is, again, a critical moral argument about the specific content of law that depends
upon the doctrine of fair opportunity.

It is possible to provide an objective reason for the doctrine of fair opportunity by combining the
fact that individuals are by and large capable of guiding their behaviour with a non-moral good.
For Hart, the general justifying aim of punishment is to reduce crime.
It is consistent with this good that we should only punish individuals in instances where they
have been able to govern their behaviour. If the good to be achieved is deterrent effect, those
subject to law can only be deterred if they had opportunity to guide their behavior one way or
another. Nevertheless, the good in this reduction basis is one that we could revise, even to the
point of abandonment, without abandoning Harts concept of law. If the acts that we deem
criminal were to cease occurring, there would be no need to deter people from them and thus no
good to be achieved. In the hypothetical society of angels posited earlier, there may be no need
for punishment at all.
Harts concept of law could still operate in such a society; there would still be a need for laws to
govern contracts and wills. If we wish to establish a moral value that we cannot abandon so long
as Harts concept of law holds, we must look elsewhere.
Arguments that deny the idea that human beings are by and large capable of guiding their
behaviour are another matter. If an argument were to proceed from the basis that human beings
are generally incapable of behaviour guidance, it would be false, provided that we commit to
Harts concept of law and the idea that the truth of moral values depends upon non-moral facts.
This falsehood is one that we could not abandon. To be by and large subject to law, is to be by
and large capable of guiding ones behaviour. Similar arguments have been made in instances
where a specific group has been oppressed. In the movement towards emancipation some have
occasionally, and egregiously, suggested that these groups should not be afforded certain rights

on the grounds that the oppressed group is generally incapable of exercising rational choice with
regard to its actions.
Such arguments have been made even though the group in question was subject to other legal
rules. This was one of a number of arguments put forth by those that opposed womens suffrage.
Consider the following claim by James McGrigor Allan: Woman never escapes from male
control, direct or indirect, personal or impersonal, traditionary or present. She is always ruled by
some man, either living or governing from the grave. She embodies her ideal of masculine
superiority in some man whose teachings. She accepts with implicit reverence, making him to all
intents and purposes an infallible judge, from whose decision there is no appeal As far as Allan is
concerned, women are always under male control; affording women the right to vote is thus
futile. This argument is not only wrongheaded but deeply offensive to modern minds. If we draw
out the implications in Harts work, arguments of this sort are objectively false. It is nonsensical
for Allan to make this claim yet accept that women have capacity when it comes to entering a
contract or committing criminal acts.
If it were the case that a womans nature is to never escape male control, then no woman
should be liable for failing to adhere to criminal law or bound by any contract. There could be no
meeting of minds for a valid contract as the woman will have been controlled by some third
party.
There could be no mens rea for criminal liability as the accuseds intentions would not be her
own. Law can defensibly acknowledge that an individual might have capacity to perform certain
acts and not others.
Law also can, and frequently does, recognise instances of undue influence by one person over
another. Allans claim about the nature of woman goes much further by stating that a woman is
always ruled by some man. If this were the case, then there could have been no law for women
at the time as women could not individually guide their own behaviour in accordance with legal
rules.
If we commit to Harts account of law, this aspect of Allans moral argument is false; furthermore
we cannot abandon the belief that this argument is false. As a critical moral value that cannot be
abandoned, we can say that no group that is generally subject to law should be denied a

particular right, privilege or protection in law on the basis that the individuals making up that
group cannot by and large guide their own behaviour.