Hart's Concept of Law Lecture Six 2001
Chapter VIII Justice and Morality: Here Hart turns his attention to the traditional opponents of legal positivism, the natural lawyers. They might agree, says Hart, with the view that circuitous or direct commands of a sovereign are inadequate to characterise law, though not on the basis that a more complex concept, such as "rules" is required, but that neither sovereign commands nor the union of different types of rules insist upon a "necessary" relation between law and morals. One important implication of this passage is that Hart plainly believes that his theory is antithetical to natural law.
One point that Hart makes is relevant to his main thesis: 153 "... so many of the distinctive operations of the law, and so many of the ideas which constitute the framework of legal thought, require for their elucidation reference to one or both of these two types of rule, that their union may be justly regarded as the 'essence' of law, though they may not always be found together wherever the word 'law' is correctly used. Our justification for assigning to the union of primary and secondary rules this central place is not that they will do there the work of a dictionary, but that they have great explanatory power". (Hart, op.cit., p.151).
Hart explains the idea of justice in the application of law as follows: 154."The connexion between ... justice and the very notion of proceeding by rule is obviously very close. Indeed, it might be said that to apply a law justly to different cases is simply to take seriously the assertion that what is to be applied in different cases is the same general rule, without prejudice, interest or caprice". (Hart, op.cit., pp.156-157). This raises a profoundly important question about the nature of justice: Is it treating like case alike; or is it treating each case on its own particular merits?. My own view is the latter but many positivists, Hart included, prefer the former.
However, the central part of this chapter concerns itself with an account of the similarities and differences that obtain between law and morals and legal rules and moral rules and this is best approached by a continuing general treatment of Hart's concept of a rule. [OHP 5] Moral and legal obligations have striking similarities, which show that their common terminology is no accident. Similarities include:-
1. Binding independently of the individual's consent;
2. Both are supported by serious social pressure;
3. Not regarded as a matter for praise, but as a minimum contribution to social life;
4. Both morals and law contain rules directing conduct in recurring situations.
Yet many hold that there are characteristics which law and morals cannot share and the most famous of which is the Kantian distinction that law only requires external behaviour, whereas morals concerns internal behaviour. But this cannot be quite correct because, as Hart points out, this amounts to the surprising claim that law and morals can never have the same content. Yet, 155."... the vague sense that the difference between law and morals is connected with a contrast between the 'internality' of the one and the 'externality' of the other is too recurrent a theme in speculation about law and morals to be altogether baseless". (Hart, op.cit., p.169). So Hart suggests that it is a "compendious statement" of four points:-
2. Immunity from deliberate change;
3. Voluntary character of moral offences
4. The form of moral pressure.
But it is also possible to understand the Kantian dichotomy as being between heteronomy and autonomy, i.e. laws are imposed on the individual from the "outside" whereas morals are imposed upon an individual by self and this is certainly true of moral ideals, to which Hart draws attention under the rubric of "the private aspect of morality" [p 179]. 156. "It is important to remember that morality has its private aspect, shown in the individual's recognition of certain ideals which he need not either share with others or regard as a source of criticism of others, still less of society as a whole". (Hart, op.cit., p.179) and 157. "... there exist side by side with the structure of mandatory moral obligations and duties and the relatively clear rules that define them, certain moral ideals. The realization of these is not taken, as duty is, as a matter of course, but as an achievement deserving praise. The hero and the saint are extreme types who do more than their duty". (Hart, op.cit., pp.177-178).
Hart is assuming a fairly common distinction between"essential public morality" - the rules without which a society would not endure and which are upheld by pressure and hostile reactions (what Kelsen calls "socially immanent sanctions") and "extravagant private morality" which is concerned with individual ideals, further and beyond the call of duty. The question arises however whether such extravagant private morality is consistent with public morals or law: 158. "Once the state has been founded, there can no longer be any heroes". (Hegel, Philosophy of Right, Trans. T.M. Knox, Oxford, 1973, p.245).
The external/internal dichotomy if understood as heteronomy/autonomy may well distinguish essential public morality from extravagant private morality and private morality from aw, but conventional morality, what Austin calls "positive morality" is incapable of such a separation from law on the basis of the internal/external or autonomy/heteronomy distinction. So, for Hart, the Kantian internal/external dichotomy is either autonomy/heteronomy or a compendious statement of the difference between legal rules and moral rules. These are:-
1. Importance:159. "Importance ... moral standards are maintained against the drive of strong passions which they restrict, and at the cost of sacrificing considerable personal interest; secondly, in the serious forms of social pressure exerted not only to obtain conformity in individual cases, but to secure that moral standards are taught or communicated as a matter of course to all in society; thirdly, in the general recognition that, if moral standards were not generally accepted, far-reaching and distasteful changes in the life of individuals would occur". (Hart, op.cit., p.169). Importance distinguishes moral rules from rules of etiquette, which as ... 160. "... rules of deportment, manners, dress, and some, though not all, rules of law, occupy a relatively low place in the scale of serious importance. They may be tiresome to follow, but they do not demand great sacrifice". (ibid) and importance also distinguishes moral rules from legal rules which may or may not be important, i.e. importance is not essential to the nature of legal rules: 161. "Legal rules ... may correspond with moral rules in the sense of requiring or forbidding the same behaviour. Those that do so are not doubt felt to be as important as their moral counterparts. Yet importance is not essential to the status of all legal rules as it is to that of morals". (Hart, op.cit., p.170). Indeed, "A legal rule may be thought quite unimportant to maintain" (ibid). Clearly Hart is on thin ice here:-
(a) Some consider (some) rules of etiquette very important [gowns for lectures/ tutorials; Throwing the ball back the opposing side when it has been played out because of an injury (Arsenal v Sheffield United February 1999)]
(b) Hart himself considers importance to be an essential feature of rules which constitute obligations: 162. "But for the moment the possibility of drawing the line between law and morals need not detain us. What is important is that the insistence on importance or seriousness of social pressure behind the rules is the primary factor determining whether they are thought of as giving rise to obligations". (Hart, op.cit., p.84). [see, too, passages 85, 86, and 87] So either importance is not a distinction between legal and moral rules, or some legal rules which are ordinarily spoken of as imposing duties do not really do so because they are trivial [RHST eg court imposed time limits]. This is part of a general failure in Hart's Concept adequately to distinguish legal and moral obligation;
(c) Importance is itself a highly subjective criterion;
(d) Hart regards power-conferring rules as [very] important, and yet also maintains that they are, by definition, not duty imposing; and that they are legal, not moral.
2. Moral rules, unlike legal rules, are immune from deliberate change. This is self-explanatory, but note (i) moral rules are not immune from change; (ii) they can, though infrequently, be changed by a deliberate campaign by a moral reformer or moral pioneer, e.g. slavery, prison reform, universal suffrage, hospital reform, gay liberation, animal rights, etc.
3. Moral offences are of a voluntary character whereas legal rules may, but usually do not ignore mental elements [NB 50% of the offences in Stone's Justices' Manual are strict liability] Moral rules take into account whether or not the agent could have avoided the action. Legal rules may impose strict liability.
4. Forms of moral pressure: 163. "With morals ... the typical form of pressure consists in appeals to the respect for the rules, as things important in themselves ... so moral pressure is characteristically ... exerted not by threats or by appeals to fear or interest, but reminders of the moral character of the action contemplated". (Hart, op.cit., p.175). However, legal pressure involves threats of physical punishment. Well even here one might cavil in that sometimes legal pressure is merely a reminder of the unlawful nature of the conduct contemplated.
Hart suggests that the above four distinctions are "formal criteria" [p 176] in that there is no reference to purpose: 164. "The fourfold criteria which in the last section we used to distinguish it from other forms of social standard or rule (importance, immunity from deliberate change, the voluntary character of moral offences, and the special form of moral pressure) are in a sense formal criteria. They make no direct reference to any necessary content which rules or standards must have in order to be moral, nor even to any purpose which they must serve in social life". (Hart, op.cit., p.176). He points out that some theorists might wish to include:- 5. Rationality (i.e. critical versus positive morality); 6. Universality.
165. "Many moralists ... would stipulate that nothing is to be recognised as part of morality unless it could survive rational criticism in terms of human interests and so be shown to advance them ... in the society whose rules they are. Some might even go further, and refuse to recognise as moral any principle or rule of conduct, unless the benefits of the forbearances and actions it required were extended, beyond the boundaries of a particular society, to all who were themselves willing and able to respect such rules". (Hart, op.cit., p.177). But Hart himself would not include these additional criteria because ... 166. "... it would be absurd to deny the title of morality to emphatic social vetoes ... indeed, sexual morality is perhaps the most prominent aspect of what plain men [whoopee ! He's back !] think morality to be". (Hart, op.cit., p.170). But this means that ... 167. "Some rules, e.g. "those concerning sexual behaviour" (p.170)] ... might be condemned as irrational or unenlightened or even barbarous". (Hart, op.cit., p.177). Are, none the less to be included as "moral rules".
The reason why Hart has to offer criteria 1-6 as distinguishing features of moral rules is that he has already defined rules in such a way as to include both moral and legal rules. Rules, remember, unlike habits, involve a critical, reflective attitude, and justify a hostile reaction towards non-compliance. But how can this critical reflective attitude, which is characteristic of rules, be reconciled with the "irrational ... unenlightened ... or barbarous" rules of social morality? On Hart's own account of what it is for a rule to exist these taboos or "emphatic social vetoes" cannot be rules; a fortiori they cannot be moral rules. Yet because of the "plain man's [p 170] thoughts it would be "absurd" [p 170] to exclude them. Overall, Hart makes heavy weather of distinguishing moral and legal rules and this is attributable, in part, to his failure adequately to analyse the concept of a rule.
Chapter IX Natural Law:- D'Entreves comments that Hart's Concept 168. "... represents a remarkable effort on the part of an avowed positivist to recognise the merits of that ancient and venerable notion". (D'Entreves, Natural Law, 2nd ed., London, 1970, p.185). And 169. "... to recognise a core of good sense ... is to show an understanding that goes beyond tolerance". (D'Entreves, op.cit., pp.185-186). That Hart is a "semi-retired" positivist was perhaps hinted at by his failure adequately to distinguish moral and legal rules but the extent of his deviation from an undiluted positivist position is plainly expressed in the following remarkable passage: 170. "The idea of a union of primary and secondary rules ... may be regarded as a mean between juristic extremes ... legal theory has sought the key to the understanding if law sometimes in the simple idea of an order backed by threats and sometimes in the complex idea of morality". (Hart, op.cit., p.208). But if Hart's "key" is a mean, it must partake of some of the qualities of both extremes. Thus Hart's idea of a rule, as we have seen, involves the idea of acceptability based on a critical reflective attitude, even where this is limited to the officials of the system. Thus Hart comes very close to a moral definition of legal rules. In Hart's account of it, "Law" sometimes seems to be very close to what the officials find morally acceptable.
Hart's thesis about Natural Law is that ... 171. "... the modest aim of survival the central indisputable element ... gives empirical good sense to the terminology of Natural Law". (Hart, op.cit., p.187). MacCormick helpfully summarises of the Natural Law tradition: 172 "Some branches of that tradition are founded in the belief that reflection upon human nature - and perhaps also upon the Divine wisdom - reveals to us various forms of the good which must rationally be accepted as goals of human striving and endeavour. Those principles whose adoption and pursuance would promote the realization of these basic forms of good accordingly form a model or a set of basic prescriptions for human conventions, laws and forms of government. Another branch of that tradition . Giving yet greater primacy to the reasoning faculty, asserts that there simply are basic principles discoverable by reason (adided perhaps by Divine revelation) which have the status of moral axioms on which the right rules for social conduct are grounded. A third branch, associated particularly with the names of Thomas Hobbes and David Hume rejects much of the 'rationalism' seemingly implicit in the former two. It is their view, more or less in the form suggested by Hume, which Hart adopts" (Neil MacCormick, H L A Hart, Edward Arnold, 1981, pp 92-93).
In so far as Hart accepted of some elements of the Natural Law tradition we will find these in 173 "The story Hume and Hobbes have to tell ... Human being have a certain physical and emotional make-up , together with a certain rational capacity for planning and forethought and understanding of the causal sequences which they discover in the course of nature. They are also social beings whose survival depends on their co-operating successfully with others of their own kind. The world which they inhabit does not guarantee their survival without effort, indeed co-operative effort. They have, as part of their emotional make-up, a powerful drive for survival of themselves individually and also for securing the survival at least of their own families and close associates. Examination of the actual mode of organization of human societies reveals certain standard or common features therein which we can infer to be essential conditions of individual and collective survival given our awareness of the qualities of human beings and the physical character of the planet they inhabit" (MacCormick, op cit p 93). Hart takes his clue from such philosophising. Notice how limited Hart's claim is. He assumes that 174. "... most men most of the time wish to continue in existence". (ibid) and that we presuppose in our discussions that 175 "... our concern is with social arrangements for continued existence, not with those of a suicide club". (Hart, op.cit., p.188). This being so, says Hart, there is a minimum (moral) content of law which follows from certain truisms about human nature [OHP6]:-
1. Human vulnerability
2. Approximate equality (to do harm; no one is powerful enough to be safe)
3. Limited altruism 176."... men are not devils, neither are they angels". (Hart, op.cit., p.191)
4. Limited resources
5. Limited understanding and strength of will.
There is 177 " a noticeable omission" (op cit p 98) here: as MacCormick engagingly asks,  178 "What about Sex?" ( MacCormick, op cit p 98). He answers 179 "Sex, in a word, is the remarkable omission from Hart's list of the basic features of human nature; sex which in almost all of us is at times an urge whose promptings far transcend the limits of our strength of will guided even by a supremely rational understanding of long term, or even immediate, self-interest; sex which is a source of violent and ungovernable passion, leading men and women even too the launching of a thousand ships and the destruction of Troy, and other like extravagances" (MacCormick op cit p 98). Citing Finnis at pp 215-217 of his Natural law and Natural Rights, MacCormick observes that180 "the regime for a whole society cannot be one of monastic chastity. Sex, after all, is not only for fun" (MacCromick op cit pp 98-99). So MacCormick is excluding neither recreational "nookie" nor procreational intercourse. But Hart's omission is indeed very odd. MacCormick reminds us that Hume certainly devoted much space to considerations of sexual restrictions and to parental affections and duties (An Enquiry Concerning the Principles of Morals Section III, Part I) and as Professor Finnis puts it 181 "... in much modern usage, including legal usage, 'morality' signifies almost exclusively sexual morality and the requirements of decency, whereas, in philosophical usage, sexual morality (including decency) is merely one small portion of the requirements of practical reasonableness" (John Finnis, Natural Law and Natural Rights, Claredon Press, Oxford, p 215). Warming to his theme, Finnis continues 182 "Consider, now, the concept of public morality, in its oddly restricted, sexual sense. Apart from such special arrangements as marriage, no one's human rights include a right that other men or women should not conduct themselves in certain ways. But the great majority of any community that is reproducing itself will spend more than a quarter of their lives as children and then more than another quarter as parents bringing up children - in all, more than half their lifetimes. Now if it is the case that sexuality is a powerful force which only with some difficulty, and always precariously, can be integrated with other aspects of human personality and well-being - so that it enhances rather than destroys friendship and the care of children for example - and if it is further the case that human sexual psychology has a bias towards regarding other persons as bodily objects of desire and potential sexual release and gratification, and as mere items in an erotically flavoured classification (e.g. 'women'), rather than as full persons with personal and individual sensitivities, restraints, and life-plans, then there is reason for fostering a milieu in which children can be brought up (and parents assisted rather than hindered in bringing them up) so that they are relatively free from inward subjection to an egoistic, impulsive, or depersonalized sexuality ... that this is an aspect of the common good, and a fit matter for laws which limit the boundless exercise of certain rights, can hardly be doubted by anyone who attends to the facts of human psychology as they bear on the realization of basic human goods" (Finnis, op cit pp 216-217).
MacCormick, too, concludes 183 "that sexual unions and the related business of rearing and caring for and educating children in families are among the matters which it is important for any human society to regulate in some way" (MacCormick, op cit p 99) Accordingly, consistent with Hart's philosophical method and the natural law tradition on which he draws one might have expect him to insist that given the human predicament, there must be some rules about sex and procreation just as there must be about violence and about property. One suggestion as to the reason for this gross omission is that Hart, the liberal, had just emerged from a bruising intellectual confrontation with Lord Devlin on the enforcement of morals in which debate Hart allied himself with the notion that some matters, including sexual morality are not the law's business.
Be that as it may, Hart deduces from his five truism that a minimum content of law is necessary ... 184. "... the rules must contain in some form restrictions on the free use of violence, theft and deception to which human beings are tempted but which they must, in general, repress if they are to coexist in close proximity to each other". (Hart, op.cit., p.89). Therefore, sanctions are a "natural" necessity: 185. "'Sanctions' are ...required not as the normal motive for obedience, but as a guarantee that those who would voluntarily obey shall not be sacrificed to those who would not. To obey, without this, would be to risk going to the wall. Given this standing danger, what reason demands is voluntary co-operation in a coercive system". (Hart, op.cit., p.193).
Hart is careful to insist that the "necessity" of this "coercive system" is "natural necessity", i.e. the need for regulation is contingent upon the nature of men [1,2,3, & 5] and the world 
and Hart therefore presses upon the view that 186. "... for the adequate description not only of law but of many other social institutions, a place must be reserved, beside definitions and ordinary statements of fact, for a third category of statements: those the truth of which is contingent on human beings and the world they live in retaining the salient characteristics which they have". (Hart, op.cit., p.195).
However, such a view is not universally accepted since some romantics imagine the possibility of a society without law, without rules and, above all, without coercion. And are those who see us somehow returning to a Golden Age, to a promised land, or those pre-Thatcherists who saw us progressing to a new socialist society where there are no classes, and where the state, which means no laws and no coercion, in Marx's words has "withered away". Hart's point is that unless there is a radical change in human nature or in the conditions under which humans live, neither of which he entirely rules out but which plainly he thinks unlikely such a millennium will not be realized. Freud agreed: "187. "... there are two widespread human characteristics which are responsible for the fact that the regulations of civilisation can only be maintained by a certain degree of coercion - namely, that men are not spontaneously fond of work and that arguments are of no avail against their passions". (Sigmund Freud, The Future of an Illusion, London, 1970, p.4).
However, though Hart does say that rules about violence and property are essential to law given these truisms, he does warn us that the law need not extend its protection to all: 188. "... it is plain that neither the law nor the accepted morality of societies needs extend their minimal protections and benefits to all within their scope, and often have not done so". (Hart, op.cit. p.196). Of course, 189. "... a society to be viable must offer some of its members a system of mutual forbearances, it need not, unfortunately, offer them to all. It is true ... that if a system of rules is to be imposed on any, there must be a sufficient number who accept it voluntarily". (ibid). And ... 190. "So long as human beings can gain sufficient cooperation from some to enable them to dominate others, they will use the forms of law as one of their instruments. Wicked men will enact wicked rules which others will enforce". (Hart, op.cit., p.205). In such circumstances, 191. "For those thus oppressed there may be nothing in the system to command their loyalty but only things to fear. They are its victims not its beneficiaries". (Hart, op.cit., p.197). Thus, as MacCormick puts it, 192 "... Hart's 'minimum content of natural law' is itself very far from being a guarantee of a just or a good society, far less a set of principles settled by right reason for securing justice among men" (MacCormick, op cit p 97)
Hart has emphasised the difference between official acceptance and the acquiescence of the ordinary citizen. Here (at p 197) he spells out what s involved, stressing that the proportion between those accepting and those coerced may vary very widely - [read pp 195-207; 200-212 2nd ed carefully]. One point becomes evident; some of the situations which Hart hints at are much more akin to the Gunman Situation, or rather the gang of robbers, than Hart seemed prepared to admit earlier on.
Hart concludes this chapter with a contribution to his long-running debate with Fuller. Hart would hold that there was a legal system under the Nazi regime. But not merely because calling that "law" would accord with ordinary usage but also because ... 160. "If we are to make a reasoned choice between these concepts [i.e. positivism and natural law], it must be because one is superior to the other in the way in which it will assist our theoretical inquiries, or advance and clarify our moral deliberations, or both". (Hart, op.cit., pp.204-205). It is interesting to observe that Hart, in the latter stages of this work appears increasingly sympathetic to views which he considered unacceptable at the start. Recollect the intellectual bankruptcy of the observation ... 74 "... power-conferring rules are thought of, spoken of, and used in social life differently from rules which impose duties, and they are valued for different reasons. What other tests for difference in character could there be?" (Hart, op.cit., p.41). Here Hart himself provides a very good answer to a question which was no doubt rhetorical when posed. That answer is that a distinction may or may not assist our theoretical inquiries, and it may or may not advance and clarify our moral deliberations. And, startlingly, given his early flirtation, indeed fully consummated affair, with linguistic philosophy, he now writes: 194. "... we cannot grapple adequately with this issue [i.e. positive law versus natural law conceptions] if we see it as one concerning the proprieties of linguistic usage". (Hart, op.cit., p.204). Thus Hart, nearing the end of the Concept is justifying his acceptance of a concept on grounds very different from those he assumed when he was criticising other jurists. We have here a weakening of Hart's commitment to common usage as a criterion of meaning and worth and an alternative and, I submit, a better justification for the choice of concepts.
[OHP 7] Chapter X International Law: A Introduction; B Rules; C Subjects:
D "Morality"; E Rule of Recognition
A. In his final chapter, Hart turns to questions of international law: 195. "... though it is consistent with the usage of the last 150 years to use the expression 'law' here, the absence of an international legislature, courts with compulsory jurisdiction, and centrally organised sanctions have inspired misgivings, at any rate in the breasts of legal theorists". (Hart, op.cit., p.209). Hart will argue that International Law is really law, though it lacks secondary rules of change and adjudication and in Hart's view even a rules of recognition. Yet it can be conceived to be law in the sense of comprising a set not a system of duty-imposing rules.
We see here, again, a retreat from common usage as the criterion of meaning and worth. Other and better tests are introduced ... 196. "... we shall ask whether the common wider usage that speaks of 'international law' is likely to obstruct any practical or theoretical aim". (ibid). Hart points out that the dichotomy between observing the existing convention or departing from it is not exhaustive because there is the possibility of ...197. "... making explicit and examining the principles that have in fact guided the existing usage". (Hart, op.cit., p.210). This is important because, 198."... whereas the allotment of proper names rests only on and ad hoc convention, the extension of the general terms of any serious discipline is never without its principle or rationale though it may not be obvious what that is". (ibid).
Hart splits his treatment of International Law into two major topics: (1) Rules; and (2) Subjects.
B. Rules:- The question is often put: "How can international law be binding?" But this, itself raises the question; "What is meant by binding?" Hart's answer is that a rule is binding if it s a valid rule under which an individual has some obligation but points out that this is an answer that is appropriate only within a system. The question we should ask is: "Can the rules of international law be meaningfully or truthfully said ever to give rise to obligations?" One reason for saying "No" is the absence of a centrally organised system of sanctions; on the assumption that "binding" means "being obliged" [p 80 ref 99]. On such an account, international law cannot be binding and therefore cannot be law. This would be a difference to great to overlook, for, whatever the common usage, 18 "All speculation about the nature of law begins from the assumption that its existence at least makes certain conduct obligatory". (Hart, op.cit, p.212).
Hart admits that in International Relations there is no close analogue to the sanctions of municipal systems. None the less the above doubt is unfounded since it depends on a misconception about the binding nature of a rule because it identifies this with "being obliged", rather than with "having an obligation". But if we free ourselves from the predictive analysis of duty and its parent, the coercive model of law, there is no need to limit the idea of obligation to rules supported by organised sanctions: 199 "... what these rules require is thought and spoken of as obligatory; there is general pressure for conformity to the rules; claims and admissions are based on them and their breach is held to justify not only insistent demands for compensation, but reprisals and countermeasures. When the rules are disregarded, it is not on the footing that they are not binding; instead efforts are made to conceal the facts. It may of course be said that such rules are efficacious only so far as they concern issues over which states are unwilling to fight". (Hart, op.cit., pp.214-215). And so Hart takes the line that the absence of organised sanctions need not deprive the rules of international law of the status of law.
C. Subjects:- the problem is: "How can states be bound anyway?" There is an inconsistency in the concept of a state, being sovereign and subject to law. Hart does not accept the idea of the state as Superman; it is not a being or entity above the law. For Hart a state is, by definition: (1) a population regulated by a legal system; and (2) enjoying a vague degree of independence. The degree of independence of states varies; e.g. United Kingdom of Great Britain and Northern Ireland, Italy, Russia, cf Illinois, Alabama, Texas (which was a nation state from approx 1835-1845), Quebec, Queensland, and the Northern Territories. Between such extremes there are different degrees of dependence, e.g. colonies, trust territories. Dependencies, confederated states, etc. But because what is called a"state" can be subject to a higher legal authority, as in the United States ...200 "It is possible to imagine many different forms of international authority and correspondingly many different limitations on the independence of states". (Hart, op.cit., p.217). Such a thought experiment, Hart thinks, overcomes the idea that states cannot be bound. Thus Hart says, 201 "Some measure of autonomy is imported, as we have seen, by the very meaning of the word state but the contention that this 'must' be unlimited or 'can' only be limited by certain types of obligation is at best the assertion of a claim that states ought to be free of all other restraints, and at worst is an unreasoned dogma". (Hart, op.cit., pp.217-218). Hart therefore concludes that 202 "The rules of international law are indeed vague and conflicting on many points, so that doubt about the area of independence left to states is far greater than that concerning the extent of a citizen's freedom under municipal law". (Hart, op.cit., p.218).
D. "Morality": Is international law merely international morality? In form, international law is a set of duty imposing rules, a decentralised legal order. Some, e.g. Austin, have thought it better to describe this as "morality" rather than "law". Hart attacks this in four points:
(a) The appraisal of the conduct of states in moral terms is different from the formulation of rights and duties under the rules of international law; e.g. the claim that the British Government has the right to govern Northern Ireland by armed force is very different from the question whether this is fair, or just, or morally a god or a bad thing to do.
(b) The rules of international law, like those of municipal law, as often morally indifferent (eg. Territorial waters). But ... 203 "... a morality cannot (logically) contain rules which are generally held by those who subscribe to them to be in no way preferable to alternatives and of no intrinsic importance. Law, however, though it also contains much that is of moral importance, can and does contain just such rules, and the arbitrary distinctions, formalities, and highly specific detail which would be most difficult to understand as part of morality, are consequently natural and easily comprehensible features of law. For one of the typical functions of law, unlike morality, is to introduce just these elements in order to maximise certainty and predictability and to facilitate the proof or assessments of claims". (Hart, op.cit., p.224). And 204 "Of course not all the rules of international law are of this formal, or arbitrary, or morally neutral kind. The point is only that legal rules can and moral rules cannot be of this kind". (ibid).
(c) Law is unlike morality which is not subject to deliberate change. International law lacks a legislature (i.e. machinery for change) but this does not mean that it cannot (logical) be deliberately changed, only that (contingently) there is no machinery , at present. Thus International law is unlike morality.
(d) Some would argue that international law is only morality since its very existence depends upon the acceptance of it by states. But the same is true of municipal law; if no subjects accepted law there would be no law. 205 "The proof that 'binding' rules in any society exist, is simply that they are thought of, spoken of, and function as such. What more is required by way of 'foundations' and why, if more is required, must it be a foundation of moral obligation? It is, of course, true that rules could not exist or function in the relations between states unless a preponderant majority accepted the rules and voluntarily co-operated in maintaining them. It is true also that the pressure exercised on those who break or threaten to break the rules is often relatively weak, and has usually been decentralised or unorganised. But as in the case of individuals, who voluntarily accept the far more strongly coercive system of municipal law, the motives for voluntarily supporting such a system may be extremely diverse". (Hart, op.cit., p.226).