Copyright (c) 2003 The University of Notre Dame
The American Journal of Jurisprudence
H. L. A. HART'S ARGUMENTS AGAINST CLASSICAL NATURAL LAW THEORY*
* I am grateful to the National Fund for Science and Technology Development of the Republic of Chile (FONDECYT) for sponsoring the Research Project Fondecyt 1010711, to which this paper belongs.
48 Am. J. Juris. 297
In a historical milieu that seemed to be against legal positivism (mostly due to the reductio ad Hitlerum argument of the post World War II era), H. L. A. Hart formulated again the positivist tradition, acknowledging a core of good sense in natural law theory (the "minimum content of natural law"), and completing his task with an extremely simple and influential critique of classical natural law theory. After a very short (and politically convenient) interregnum of natural law theory, Hart successfully reinstated the (transformed) tradition of legal positivism in what might be considered a masterpiece in legal scholarship. In so doing, however, he had to transform that tradition to the point of installing within it the main tenets of classical natural law theory. 1 This I shall try to establish through the discussion of his argu-ments against the classical tradition of natural law.
Hart formulates the classical theory of natural law, referring to its chief exponent, as follows:
The Thomist tradition of Natural Law comprises a twofold contention: first, that there are certain principles of true morality or justice, discoverable by human reason without the aid of revelation even though they have a divine origin; secondly, that man-made laws which conflict with these principles are not valid law. 'Lex iniusta non est lex'. 2
Accordingly, Hart's criticisms may be considered as addressed to each one of these theses. His various adverse comments on natural law theory are scattered throughout his work, for he has not made a ...
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