I am going to examine whether the law, can in fact, be identified independently or morality by examining various legal concepts and whether they can be justified in today's society. The question of the concept of law – whether law is or is not necessarily conceptually connected to morality – will determine one's answer to questions of law.
The question of the nature of the intersection between law and morality is perhaps most obvious to non legal theorists when determining the law in a hard case, but in fact the concept of law question is logically prior to any determination of 'the law' in a case: what counts as law is dependent on one's conception of law. With regard to law, for the moment it will be enough to define law as 'the enterprise of subjecting human conduct to the governance of rules' (Fuller 1969, p 96). What precisely this entails will hinge upon the nature of the connection between law and morality.
Legal positivists will deny that there is anything other than a contingent connection between law and morality, whilst legal idealists will be committed to the view that there is a conceptually necessary connection between law and morality. In the limited present sense of 'law', an answer to questions of separation must be justified in law because the law consists of the rules that regulate our lives. I believe that by subjecting human conduct to the governance of rules indicates the necessity of a social order that must have both moral and legal justifications.
Moral principles are located within practical reason and provide a reason why a course of action ought or ought not to be followed. It can be argued that whether or not a proposition is labelled 'moral' is irrelevant: if it aims to be justificatory, action-guiding, other-addressing, other-regarding and categorical, then it is a moral proposition. Given that law is so similar to morality, why should law be seen as different? The question is reasonable because the all-encompassing impact of the law on our lives is similar to the demands of morality: most importantly in the imposition of duties and the conferral of rights.
That is to say, given the likeness between law and morality, there has to be some good argument to show why the obligations imposed by law should not ipso facto be moral obligations Hart, himself saw the separation of law and morals as central to the meaning of legal positivism: "here we shall take Legal Positivism to mean the simple contention that it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have often done so". An important aspect of positivism is its persistence in seeking to keep law and morals separate.
For positivists, the mere fact that a rule violates certain standards of morality does not disqualify it as law, if the rule has been made in the appropriate way according to the rule of recognition or the sources thesis. Iniquitous rules, immoral rules, unjust rules can notwithstanding these defects being valid rules of law. And positivists usually claim that it is possible to describe the law in a value neutral manner, wherein moral evaluation plays no part. All this is often summarised in the positivist slogan that "Any content can be law".
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.