In H. L. A. Hart publication on Law and Morality, He seeks to unravel the core question that is the interplay between law and collective morality. This presentation focus on Hart's ideas on the positioning of morality in our legal system and how it defines the very essence of law itself.

1. Riyad Anwar, Candidate of Research Master in Law, Tilburg University
On Hart’s “The Legal Enforcement of
Morality”

2. 1. Has the Development of the Law been influenced by morals?
2. Must some reference to morality enter into adequate definition of
law?
3. Is the fact that certain conduct is by common standards immoral
sufficient to justify making that conduct punishable by law?
4. Is law open to moral criticism?
Relationship between Law and Morality – Four Questions

3. Has the Development of the Law been influenced
by morals?
• Morality determined the course of law
• Covertly and gradually through judicial process
• Openly and abruptly in legislation process
• But this alone, does not affirm the absolute causality
between morality and the law
Moral and Development of Law

4. Must some reference to morality enter into adequate
definition of law?
• Positivism
• Law is intended to prevent harm to others (Mill – Liberty)
– It is impossible to identify classes of actions which harm no one or one but
the individual who does them
– Law should also cover self-inflicted harm
Morality and Definition of Law (1)

5. • Natural law
• Conspiracy to corrupt public morals
– Shaw v. Director of Public Prosecution: revival of legal moralism in UK?
» Judge as guardian of public moral
» To fill gap in legislative loophole
» What count as public moral? Lady Chatterley Case
» Exerting activism in exchange to sacrifice legal certainty
– Wolfenden Committee: combination of harm and public moral
Morality and Definition of Law (2)

6. Is the fact that certain conduct is by common standards immoral
sufficient to justify making that conduct punishable by law?
• Immorality could either derived from:
• Positive morality – morality accepted and shared by given
social group
• Critical morality – general principle used to criticize actual
social institution including positive morality
• De ja vu on Hart’s legal concept of law?
Sanction on Immoral Conduct (1)

7. • Whether society has the right to enforce morality is depends
largely on the framing of critical morality
• Utilitarianism: law should only punish activities which harmful to others
• Natural law: regardless presence of harm, law should punish immoral
act
• Lady Chatterley’s Lover Book
• Different critical morality could affect the enforcement of morality
Sanction on Immoral Conduct (2)

8. Immoral law?
• Existence of immoral law is a possibility
• BUT Morality does not ascertain legal validity
• Law is a product of reality (Descriptivism)
• Validity in itself is positive morality
Sanction on Immoral Conduct (3)

9. • Is law open to moral criticism?
• Justification of conduct
• Coercive power demands justification
• Coercion need justification and explanation to those who affected by
law
• The offender
• Laymen (Non-offender)
Law and Moral Criticism

10. • Law can be used to enforced morality. BUT does
not ensure its validity
• Law is present because of existing structural
standard and the social rule which allow its
existence.
• Law require both justification and explanation
• Morality exists as a tool for legal scrutiny
Conclusion

11. • Hart’s based his justification from empirical
deduction or consequential analysis
• Hart’s ascribe and expand to Mill’s harmful
principle to cover not only interpersonal harm but
also public harm
• Hart define morality with two prong questions
(“the question about morality” and “the question
of moral”)
Deconstructing Hart’s Logic

12. • How critical morality could toppled down immoral
law?
• How’s Hart critical morality would looks like if
positioned on different philosophical group
(egalitarian, speciesism)?
Unresolved questions on Hart