Thursday, October 15, 2009

Hart's Criticism of Natural Law

The key difference between Natural Law Theory and Incorporationism as presented by H.L.A. Hart is that each side interprets the same phenomenon differently. Few would argue that there is a certain commonality between various legal systems, such as the prohibition of murder. The Natural Law theorists understand such similarities as deriving from a “higher law” which is universal, innate, and cognitively accessible to humans. Incorporationists such as Hart, on the other hand, recognize this as a mere coincidence of social values. Whether or not these social values are also referred to as “morals” is not an issue. The reason Hart allows for moral criticisms of the law is because describing a law as “immoral” is equivalent to calling it “a contradiction to the accepted social values of a given society.” He is unconcerned with which term one uses, but his understanding of the limitations of moral concepts in the sense Natural Law Theory uses it requires that the law not be sheltered from all other considerations. This openness to moral criticism also reinforces his separation of “law as it is and law as it ought to be” which he claims Natural Law theorists fuse together. Despite allowing for moral criticism of the law, Hart does not imply that a law that can be morally criticized is not a law at all. Among others, these distinctions lead to my conclusion that Incorporationism’s main critique of Natural Law is that it is simply too insular. It does not account for the variety of moral perceptions in the world and is stubborn to the existence of any law not pertaining to these unidentified moral values. Instead, Natural Law account for its inadequacies by broadening its perception of the law.

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