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Jurisprudence Essay - Hart and Finnis
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Jurisprudence Essay on Hart and Finnis
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It is a convincing claim that Finnis’ theory of natural law is not really all that different from Hart’slegal positivism. Whilst the inherited picture of general jurisprudence suggests natural lawyers and
legal positivists are two warring groups, upon interrogation of these modern philosophers, no
dividing line can be found. To think otherwise is to engineer a dispute over superficial differences,
resulting in nothing more than a verbal quibble.
Firstly, this essay will briefly introduce the historical dispute between natural law and legal
positivism as contesting theories of jurisprudence. Then, using Ligon’s ‘grounding’ and ‘normative’
questions,1 this essay will broadly analyse how Finnis and Hart explain what makes rules law, and
why legal rules ought to be followed. In this investigation, any commonalities and fissures will be
located, cumulating in a debate over Finnis and Hart’s views on the connection between law and
morality and whether laws can be unjust. This essay will conclude, as Finnis did, “that the two
schools of thought are compatible”.2
The historical dispute
Historically, Legal positivists and classical natural lawyers have persistently been adversaries,
constructing their arguments on each other’s criticisms. Classical natural law has persistently been
viewed as archaic, consisting of theorists who invoked religion as a common ground and defined
rules according to their satisfaction with specified moral criteria. 3 Although it has evolved from this
outdated caricature, with Finnis restating the philosophy to be acceptable to contemporary society
and legal positivists, what remains at the crux of the debate is an alleged irreconcilable proposal
about the reasons for obeying the law. Whilst legal positivists have traditionally suggested sanctions
provide such motives, natural lawyers argue individuals are driven by morality. Subsequently, there
1
Jack P.Ligon, "Legal Positivism, Natural Law, and Normativity" (2021) UVM Honors College Senior Theses, 417, 7.
2
Brian Bix, On the Dividing Line Between Natural Law Theory and Legal Positivism, Notre Dame LR2000, 1613.
3
ibid.
Page 1 of 10
, is disagreement over the interrelationship between law and morality which is directly contrary to the
‘separation thesis’: the heart of legal positivism.
Conversely, a contemporary perspective suggests natural law and legal positivism are “rapidly
converging upon each other” with the advocates of the theories, in particular, becoming “almost
indistinguishable”.4 As Kaye suggests, whilst the ideal types of both theories arguably remain polar-
opposites, Finnis and Hart fail to adhere to such ideal-typical viewpoints, compromising alleged
differences through their inclusive interpretations, 5 and, in practical effect, causing the two theories
to be “remarkably similar”.6 Potentially, this can be explained by Bix who suggests Finnis “occupies a
somewhat controversial and arguably outsider’s position” 7 with his modern reading of natural law
having debunked the hard-nosed characterisation of classical theorists and created a theory, as Hart
stated, “complementary to rather than a rival of positivist legal theory”. 8 An analysis of the
‘grounding’ and ‘normative’ questions will reveal this deduction in further detail.
The “Grounding Question”
Ligon’s grounding question purposes to understand what the law is, what differentiates law from
other rules, and what objective they serve. 9
According to Hart, laws are not just coercive demands, as Austin suggested, 10 but social rules backed
by social pressure that guide conduct when internalised, subsequently serving to regulate societal
relationships.11 Hart outlines two types of social rules: primary rules which impose obligations, and
secondary rules which determine how the former can be enacted and altered, as well as confer
powers on institutions. Of Hart’s three types of secondary rules, rules of recognition are significant
4
Tim Kaye, ‘Natural Law Theory and Legal Positivism: Two Sides of the Same Practical Coin?’ (1987) 14 Journal of
Law and Society 303, 318.
5
Ligon (n 1) 9.
6
ibid.
7
Bix (n 2) 1613.
8
HLA Hart, Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983)10-11.
9
Ligon (n 1) 7.
10
John Austin, The Province of Jurisprudence Determined (New York: Humanities Press, 1965 repr), 8.
11
HLA Hart, ‘Social Solidarity and the Enforcement of Morality’ (1967) 35 University of Chicago Law Review, 26.
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